Kobras v Lutheran Church of Australia Incorporated [2005] NSWSC 817

New South Wales Supreme Court

CITATION : Kobras v Lutheran Church of Australia Incorporated [2005] NSWSC 817

HEARING DATE(S) : 09/08/05

JUDGMENT DATE : 9 August 2005

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : Declaration that testator's Australian estate passes as an outright gift.

CATCHWORDS : CHARITIES [52]- Will written in foreign language- Testator left estate to two churches- In original translation estate was to be applied "along the lines of a trust/foundation"- Correct translation only made reference to "foundation"- True construction of will meant that estate was to pass as an outright gift. SUCCESSION [153]- Will written in foreign language- Original will and translation attached to letters of administration- Court can look to original to ascertain meaning and intent.

LEGISLATION CITED : Charitable Trusts Act 1993, s 23

Gerhardy v South Australian Auxiliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195 Gray v Australian Cancer Foundation for Medical Research [1999] NSWSC 492 Hester v Commissioner of Inland Revenue [2005] 2 NZLR 473 CASES CITED : Re Cliff's Trusts [1892] 2 Ch 229 Re Manners [1923] 1 Ch 220 Reynolds v Kortright (1854) 18 Beav 417; 52 ER 164

Michael Kobras (P) PARTIES : Lutheran Church of Australia Incorporated (D1) German Lutheran Church Sydney Incorporated (D2)

FILE NUMBER(S) : SC 6635/04

COUNSEL : C Harris (P)

SOLICITORS : Schweizer Kobras (P)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ