Said v Barrington [2001] NSWSC 576

New South Wales Supreme Court

CITATION : Said v Barrington [2001] NSWSC 576 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3008/00 HEARING DATE(S) : 29 June 2001 JUDGMENT DATE : 29 June 2001

Hani Said, Alan George Pike and Christopher Aubrey Robinson (Plaintiffs) PARTIES : Allan Barrington (First Defendant) Attorney General for the State of New South Wales (Second Defendant) JUDGMENT OF : Windeyer J at 1

Mr C A Vindin (Plaintiffs) COUNSEL : Mr F Donohoe (First Defendant) Mr P Singleton (Second Defendant) Watts MacRay (Plaintiffs) SOLICITORS : Caldwell Martin & Cox (First Defendant) I V Knight (Second Defendant) CATCHWORDS : WILLS - gift of trophies for children's sailing - whether charitable purpose - EQUITY - trusts - charitable trust - gift of trophies for children's sailing - whether charitable purpose LEGISLATION CITED : Family Provision Act 1982 CASES CITED : Re Nottage (1890) 2 Ch 649 Royal National Agricultural Association v Chester (1974) 48 ALJR 304 DECISION : See paragraph 11

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 29 JUNE 2001

3008/00 HANI SAID & ORS v ALLAN BARRINGTON RE: ESTATE OF REGINALD BARRINGTON & ANOR

JUDGMENT

1 HIS HONOUR: These are proceedings brought by way of construction summons to determine the issue of whether or not a residuary gift under the will of Reginald Barrington, who died on 6 June 1997, constitutes a valid charitable trust. 2 Under that will Mr Barrington, after giving what appeared to be his sailing equipment and boat building equipment to a Mr Heffernan and legacies of $500 to each of Nola McSweeney and Dorothy Foster, provided by way of residuary gift the following: Any money left over can be used for sailing trophies in youngsters sailing, possibly sabots and that type of boat. 3 The will was made on 24 October 1996. It appears that it was written out by the deceased in his own handwriting and properly witnessed. 4 It may be that the deceased did not appreciate the value of his residuary estate, which I take from the will, would have consisted of the proceeds of sale of his house. The inventory of property annexed to the Probate document shows an estimated value of $255,806 including $10,000 for the boat building equipment. I have been told, without objection, that the estate was worth considerably more than that, probably in the vicinity of $350,000. This would mean that after giving effect to the specific bequest and the two small pecuniary legacies, there would have been a sum well over $300,000 in residue to provide for the trophies for the youngsters' sailing. 5 The question then is whether or not the residuary gift is a good charitable gift constituting a valid charitable trust. It is accepted that unless it is it must fail. 6 As it is not a trust for one of the three specific purposes referred to as within the Preamble to the Statute of Elizabeth of 1601, to be valid the trust must come within the concept of being a trust for a public purpose or a purpose beneficial to the community. 7 It has been held over a long period of time that gifts for the encouragement of sport per se are not charitable. This was determined first, I think, in the case of Re: Nottage (1890) 2 Ch 649 and has, in Australia, been followed since. 8 There are cases, as counsel for the plaintiff has pointed out, where gifts which appear to be gifts for the encouragement of sport have been held to be valid, but so far as I know all of those have been gifts to educational bodies to be used by them for some particular sporting purpose, such as to a school for the provision of a sporting oval or for a building to be used as a gymnasium and the like. Those are easily distinguished, in my view, as being trusts for the advancement of education rather than being for sport alone. 9 There is, in these cases, some temptation to extend the public benefit requirement to any good cause and I think this has to be resisted. There would be little doubt, I think, that right thinking members of the community would regard encouragement of sailing for children to be generally beneficial, but not so as to bring it within the requirements to make it a charitable purpose to obtain the protection given to what would otherwise be a perpetual trust. 10 The additional difficulty with the case in question is that the provision is that the money be used for sailing trophies. In my view, whatever might have been the position if that were not the case that must exclude the gift from being held to be a charitable trust. To hold otherwise would be to go against decisions which have stood for many years and which have been accepted by the High Court of Australia in Royal National Agricultural Association v Chester (1974) 48 ALJR 304. 11 It follows that for these reasons the question in the summons will be answered to state that the residuary gift did not constitute a charitable trust. 12 On that basis, of course, there will be a partial intestacy under the will. I should add that it is proper for construction questions to be dealt with before any claims under the Family Provision Act 1982. For some inexplicable reason the opposite was done here. If entitlements under a will are not known the court cannot decide what, if any, provision ought to be made.