NSW Caselaw
Reported Decision : 62 NSWLR 276
New South Wales Supreme Court
CITATION : James N Kirby Foundation v Attorney-General NSW [2004] NSWSC 1153 HEARING DATE(S) : 12/08/04 Further evidence filed 25/10/04 and read by consent, 25/11/04 JUDGMENT DATE : 2 December 2004
JUDGMENT OF : White J DECISION : Direct that short minutes be brought in in conformity with these reasons for an order conferring upon the trustee the power to amend the trust deed to substitute for the present terms the terms of the proposed deed of trust which is Annexure A to the summons, subject to amendment to clause 7 and to the definition of "Responsible Person".; The short minutes should provide also for the payment of the defendant's costs of the proceedings.
CATCHWORDS : TRUSTS AND TRUSTEES - Application to vary trust deed for charitable foundation to come within definition of prescribed private fund set out in Income Tax Assessment Act 1997. - JURISDICTION - Whether court has inherent power to vary charitable trust deed - No inherent power where it is possible to execute the trust - Whether proposed amendments are expedient in administration of trust property pursuant to s 81(1) Trustee Act. Income Tax and Social Services Contribution Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) LEGISLATION CITED : Income Tax Assessment Act 1936 (Cth) Trustee Act 1925 (NSW) Minors (Property and Contracts) Act 1970 Tickle v Tickle (1987) 10 NSWLR 581 Bowmil Nominees Pty Ltd [2004] NSWSC 161 Re Philips New Zealand Ltd [1997] 1 NZLR 93 Ku-ring-gai Municipal Council v Attorney-General (1954) 55 SR (NSW) 65 Attorney-General v Whitely (1805) 11 Ves Jun 241; 32 ER 1080 CASES CITED : Attorney-General v Whitchurch (1796) 3 Ves Jun 141 at 144; 30 ER 937 Freeman v Attorney-General [1973] 1 NSWLR 729 N M Superannuation Pty Ltd v Hughes, McLelland CJ in Eq, 5 March 1996 unreported, BC9600423 at 8-9 Re Gaydon [2001] NSWSC 473 Re Cosaf Pty Ltd (Young J, 18 December 1992 unreported) Arakella Pty Ltd v Paton [2004] NSWSC 13 Re Philips New Zealand Ltd [1997] 1 NZLR 93 James N Kirby Foundation PARTIES : v Attorney-General in and for the State of New South Wales FILE NUMBER(S) : SC 3722/04 COUNSEL : Plaintiff: Mr R Harper Defendant: Ms C Tassone (sol) SOLICITORS : Plaintiff: Deacons Lawyers Defendant: Crown Solicitors
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