Wesley Community Services Limited trading as Wesley Mission v Smith [2025] NSWSC 154

Supreme Court New South Wales

Medium Neutral Citation: Wesley Community Services Limited trading as Wesley Mission v Smith [2025] NSWSC 154 Hearing dates: 21 February 2025 Date of orders: 21 February 2025 Decision date: 21 February 2025 Jurisdiction: Equity Before: Meek J Decision: Orders made applying trust property cy-près. Catchwords: CHARITABLE TRUSTS — Whether a charitable trust was created — Clause 2 of the deceased's Will disclosed an initial purpose of "providing respite care for Wesley Mission and staff and those in need under the care of Wesley Mission" and a subsequent purpose of "maintaining and providing for homeless people under the care of Wesley Mission" — Declaration made that the clause created a "charitable trust" within the meaning of the Charitable Trusts Act 1993 (NSW) — Spirit of the trust — Held the spirit of the trust as a whole was to provide for those in need, including homeless people under the care of Wesley Mission WILL CONSTRUCTION — Approach to Will construction — Discussion of identification of the party appointed by the deceased to be trustee of a trust — Finding, contrary to assumption of executor, that the plaintiff was intended by the deceased to be trustee of the trust TRUSTEES — Removal of trustee — To the extent that there is any doubt that a person holds trust property as trustee, an order for removal may be made, for more abundant caution, and another party be appointed as sole trustee of the same in his stead — Order made for removal of first defendant as trustee — Not for any untoward reason but to give effect to the Will as construed, and to facilitate the trust purposes and the proper execution of the administration of the trust CHARITABLE TRUSTS — Whether the original purposes of the trust have, wholly or in part, ceased to provide a suitable and effective method of using the property, having regard to the spirit of the trust — Declaration made pursuant to section 9 of the Charitable Trusts Act 1993 (NSW) that the original purposes of the trust have wholly or in part ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust CHARITABLE TRUSTS — Whether the Court should establish a cy-près scheme in terms of a proposed scheme — Held cy-près scheme should be ordered WILL CONSTRUCTION — Sole arbiter provision — Discussion regarding provision that (my trustees) "shall be the sole arbiters in ensuring that the spirit of this bequest is honoured and maintained throughout" (the trust period) WORDS AND PHRASES — "respite care" EXECUTORS — Completion of executorial duties —Whether named executor holding property as an express trustee or trustee de son tort/constructive trustee COSTS — Whether it is appropriate to make an award for costs in favour of the Attorney General — Further issues as to the basis of costs and the fund out of which costs is to be paid — Held the Court was assisted by the submissions on behalf of the Attorney General and in the circumstances of the case costs of all parties should be paid on an indemnity basis out of the subject matter of the dispute being, consequent upon the other orders made, the proceeds of sale of the property in question rather than out of residue Legislation Cited: Charitable Trusts Act 1993 (NSW) Civil Procedure Act 2005 (NSW) Probate and Administration Act 1898 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209; [1940] HCA 12 Catholic Metropolitan Cemeteries Trust v Attorney General of New south Wales [2024] NSWCA 30 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; [1932] HCA 22 Crowle Foundation v NSW Trustee and Guardian [2010] NSWSC 647; (2010) 5 ASTLR 556 De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 Giurina v Giurina [2018] VSC 599 Green v Attorney General (NSW) [2023] NSWSC 1229; (2023) 413 ALR 575 In re Scarisbrick; Cockshott v Public Trustee [1951] Ch 622 Letterstedt v Broers (1884) 9 App Cas 371 Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Monds v Stackhouse (1948) 77 CLR 232; [1948] HCA 47 Perpetual Trustee Company Ltd v Attorney-General (NSW) [2018] NSWSC 1456 Perrin v Morgan [1943] AC 399 Reeves v Reeves (No 2) [2024] NSWSC 386 Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145; [1993] HCA 1 YWCA Australia v Chief Commissioner of State Revenue [2020] NSWSC 1798 Texts Cited: Burns, Robert, Poems, Chiefly in the Scottish Dialect (1786, John Wilson) Henderson, William and Jonathon Fowles, Tudor on Charities (10th ed, 2015, Sweet & Maxwell) Hungerford, Margaret Wolff, Molly Bawn (1878, JB Lippincott & Co) Wesley Community House, "About Us" (WebPage) (see endnotes for accessible link) Category: Principal judgment Parties: Wesley Community Services Limited (Plaintiff) Stephen Smith (First Defendant) Attorney General of NSW (Second Defendant) Representation: Counsel: D M Flaherty (Plaintiff) D Farinha (Second Defendant) Solicitors: Arnotts Lawyers (Plaintiff) Stephen Smith (First Defendant) - submitting appearance and previously excused from attendance Crown Solicitor's Office (Second Defendant) File Number(s): 2024/349549