New South Wales Supreme Court CITATION : ANZ Trustees Limited v Attorney General of New South Wales [2008] NSWSC 1081 HEARING DATE(S) : 28 July, 22 September and 13 October 2008 JUDGMENT DATE : 16 October 2008 JURISDICTION : Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Construction of will determined - order as to entitlement made. CATCHWORDS : TRUSTS & TRUSTEES – Gift in remainder of fund "on various charities to be mentioned" – various persons and institutions named – question of which were charitable organisations – whether gift to charities rateable or in equal shares – fund established on death of life tenant in 1939 - CHARITIES – Charitable trusts – gifts to charitable organisations in existence at death of testator – cy-pres orders made - PRACTICE & PROCEDURE – Original proceedings commenced in 1943 – further consideration reserved under 1944 orders – order made in 1948 setting aside the fund until further order - no further useful action until 2005 and the new action commenced in 2007 - orders made in the new action Charitable Trusts Act 1993 LEGISLATION CITED : Equity Act 1901 MacKillop Family Services Act 1998 (Vic) Trustee Companies (Amendment) Act 1983 CATEGORY : Principal judgment PARTIES : ANZ Trustee Limited (Plaintiff) Attorney General of New South Wales (Defendant) FILE NUMBER(S) : SC 1719/08; 377/1943 COUNSEL : M K Meek (Plaintiff) K Burns (Defendant) SOLICITORS : Bartier Perry (Plaintiff) Crown Solicitor's Office (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J Thursday 16 October 2008 1719/08 ANZ TRUSTEES LIMITED (FORMERLY ANZ EXECUTORS & TRUSTEE COMPANY LIMITED AND FORMERLY THE TRUSTEES EXECUTOR) V ATTORNEY GENERAL OF NEW SOUTH WALES Also No 377 of 1943 In the Matter of the Estate of Michael Joseph Treacy: the Trustees Executors and Agency Company Limited v Johnson and others JUDGMENT 1 This action was commenced in 1943 by Suit Number 377 of 1943. The present proceedings are, or should be, part of the 1943 proceedings, albeit that they were commenced by separate proceedings 64 years later. 2 Mr Michael Joseph Treacy made a will on 26 August 1936 and a codicil to this will on 12 February 1938. He died on 20 May 1938. 3 Probate was granted in New South Wales on 13 April 1939 to Mr John Johnston, one of the executors named in the will with leave reserved to Laurence William Howard, the other executor named in the will, and to Patrick Joseph O'Shea, an additional executor, appointed by the codicil to come in and prove. 4 Mr Johnson died in 1939. On 13 September 1940 this Court appointed the Trustees Executors and Agency Company Limited (TEA) as administrator dbn,cta of the estate of the deceased. ANZ Executors and Trustee Company (now ANZ Trustees Limited) is the successor to that company pursuant to the Trustee Companies (Amendment) Act 1983 (NSW). 5 The deceased was a Roman Catholic priest who, judging by the terms of will, came from Ireland. The estate was sworn as under the value of £10,312, which meant at that time that the assets in value added up to about £10,311. This might have created problems as by his will the deceased gave legacies to various relatives, friends and institutions for a total amount of well over that figure but the problem was overcome as I will explain. The gifts included the following gift which forms the subject matter of the present proceedings before me: TO my sister Mrs. Bridget Watson Ballymurray Roscommon Ireland three thousand pounds (£3-000) ON TRUST the interest accruing from the said sum to be paid to her annually And if it should be less than One hundred pounds (£100) what will required to bring it to that amount will be taken from the (£3-000) on trust and added to the interest so that she may receive One hundred pounds (£100) annually And after her death what will remain of the Three thousand pounds held in trust by my executors will be distributed on the various charities hereafter to be mentioned in this Will. 6 Bridget Watson died on 20 August 1939. The persons who, or organisations which, could have qualified to be "charities hereafter to be mentioned" and the amounts of the legacies given to them under the will and their purposes where specified are set out in the following tables. Some of these gifts were deleted or varied by the codicil and the alterations appear in the third column: No. Name of beneficiary in will Purpose Changes by codicil 1 Trustees of R.C. Cemetery Deniliquin (£70) Not specified Revoked 2 The building fund of St Michael's Church (£150) Not specified 3 The Saletian Fathers, Turin, Italy (£500) For the Propagation of the Faith – requesting them say as many masses as they wish for my poor soul and my intentions 4 The Saletian Fathers Rupertswood, Victoria (£200) For masses to be offered for my soul and my intentions Reduced to £100 5 Archbishop James Duhig Brisbane (£300) Not specified 6 Our most loved and August Holy Father Pius XI or his successor (£500) For the propagation of the faith in pagan lands 7 The Little Sisters of the Poor, Northcote, Melbourne (£200) Not specified 8 The Trapist Priests Mount Melere Cappoquin Co Waterford Ireland (£200) For masses for my soul and All my Deceased Immediate Relatives, benefactors and dear friends 9 The Provincial of the Augustinian Fathers Sts. Michael and John's Monastery Dublin (£300) For their Novitiate in Dublin and request the Fathers to celebrate Mass for my soul and my intentions Reduced to £200 10 All Hallows Missionary College Drumcondra Dublin (£100) For Masses for my soul and the souls of my deceased Immediate Relatives and my intentions 11 Very Revd. Frank Meagher Adm Broken Hill (£50) For Masses for my soul and my intentions 12 Very Revd. Dean John Hughes Cobar NSW (£50) For Masses for my Soul and my intentions 13 Revd. Father Martin Dowling Ulverson Tasmania (£50) For masses for my soul and for my deceased Relatives 14 The Foundling Home Broadmeadows Melbourne (£100) Not specified Increased to £200 15 The President and committee of St. Vincent De Paul Society Dublin Ireland (£100) For the relief of the poor. 16 The President and committee of St. Vincent De Paul Society Sydney (£50) Not specified 17 St Vincent De Paul Society Brisbane (£50) Not specified 18 St Anthony's Home for girl mothers Sydney (£50) 19 St Augustin's Orphanage Geelong (£50) 20 The Jesuit Fathers Melbourne (£50) For Masses for my soul and my intentions 21 The Boy's Orphanage St Melbourne conducted by Christian Brothers (£50) Not specified 22 The Deniliquin Public Hospital (£50) Not specified Name of additional beneficiary in codicil 23 The Fathers of the Blessed Sacrament at St Francis' Church Melbourne (£100) 7 Under the terms of the will the named executors were also appointed as the executors (as they would be by representation) and trustees of the estate of the deceased's sister Mrs Kathleen Edmunds who, under her will, left her whole estate to the deceased to distribute as he thought advisable and in accordance with her wishes and appointed him executor. 8 This action was commenced by originating summons pursuant to the Fourth Schedule of the Equity Act 1901 filed on 15 February 1943 between the Trustees Executors and Agency Company Limited as plaintiff and the executors of the will of John Johnston as defendants, seeking an order for general administration by the court of the estate. Just why the particular defendants were joined is not clear to me. 9 The reason that general administration was sought appears from an affidavit of Mr French, the general manager of the TEA which explained that there were problems identifying the separate assets of the deceased and those which he held on trust for the estate of his late sister, Mrs Edmunds. 10 The suit came on for hearing before Mr Justice H.S. Nicholas, Chief Judge in Equity, on 6 April 1944, who ordered an enquiry by the Master to establish the assets belonging to the deceased, the assets of the trust, the trusts upon which trust assets were held, and also to ascertain claims against the estates; further consideration was reserved. 11 The matter then proceeded in the solemn way of a Master's enquiry through directions, advertisements and finally a Master's Certificate on 23 May 1945, which was approved by the Chief Judge on 1 June 1945. Although the order for court administration had not been made, further consideration remained reserved pursuant to the decretal order of 1944. 12 Some of the old file appears to have gone missing, but the evidence before me shows that the matter came before Mr Justice Sugerman "A Judge of the Supreme Court sitting in Equity" on hearing on further consideration on 16 December 1948 when orders were made authorising the estate assets and the trust assets to be dealt with as one fund, for payment of the legacies other than the legacy in favour of Bridget Watson, and the setting aside of that legacy as a separate fund with interest from 20 August 1939 until it was set aside and for this separate fund and the income arising from it to be held until further order of the court. 13 The next event, or at least the next event of any importance, appears to have been the filing of an amended originating summons on 3 October 1952, raising for determination questions as to the entitlement of the funds so set aside which raised questions as to whether certain named legatees were charitable institutions and whether those persons or bodies entitled to take should take rateably or equally. Orders were sought that particular defendants be appointed to represent classes or groups of other named defendants. 14 After another amendment to the originating summons, which in those days was called a re-amendment, the matter was listed before Mr Justice Myers in August 1955. The old file does not indicate what happened then, but there was placed in the evidence before me an advice from Mr J.B. Kearney, as he then was, given in 1971, from which it seems that the Judge was not prepared to make representative orders and required all possible claimants to be identified, joined and served and the matter was stood over generally with leave to amend by adding parties and generally. I add that this was not done and accordingly the leave expired. 15 It seems by this time Mr Kelly, solicitor of Deniliquin, who had up to then, conducted the matter, either gave up practising or gave up trying to bring this matter to any conclusion as the advice that Mr Kearney gave seems to have been given to new solicitors who took up the challenge after 15 years of what would appear to be inaction. 16 Mr Kearney expressed the view that had the argument been presented in a particular manner, Mr Justice Myers might have made appropriate representative orders and that it was possible this would be done by another equity judge adding a comment to the effect that things could be easier as Myers J had retired. However, he advised further enquiries as to the legatees should be made to establish whether anything had changed in their position in the 15 years since they were last contacted. 17 There seems to have been little, if any, action from 1971 until 2005 when the trustee instructed new solicitors. It might well have been a matter which, in whatever office it was being dealt with, was handed to any new solicitor happening to arrive in that office as a new recruit who was told to do something to bring it to a head and failed to do that before he or she left that employment. In any event, as a result of the employment of new solicitors in 2005 it seems that some fresh enthusiasm was engendered particularly as considerable assistance was obtained through the Crown Solicitor's office on behalf of the Attorney General of New South Wales. It was as a result of this that these new proceedings were commenced by summons filed incorrectly in the Probate List on 16 December 2007, seeking orders that: 1. Matter 3777 of 1943 be referred to the Attorney General of New South Wales under section 13(2) of the Charitable Trusts Act 1993 ("the Act") pursuant to section 26(2) of the Act. 2. Orders be given for directions regarding service on other persons as the Court deems appropriate. 3. Costs and such further or other orders as the Court thinks proper. 18 Thus after a gap of approximately 52 years the matter was again before the court and it was listed before me on 11 February 2008. At that time I expressed the view that the relief sought in the summons was not appropriate as it appeared many of the original legatees were still in existence so that no question of scheme could arise, at least so far as they were concerned. As a result an amended summons was filed seeking in part orders not dissimilar to those sought in 1952 as to the proper construction of the will and the determination of the persons or bodies entitled to share in the retained fund. This judgment has been intituled in the old as well as the new proceedings to bring the old proceedings to an end. The value of the fund in September 2007 was $213,645. 19 As this is now 2008 and as I wished to assist to bring the matter to conclusion after 65 years and before I retired, I indicated that inquiries should be made to ascertain the existence of those persons or organisations who could possibly take; that notice be given to them of the proceedings and of the preliminary view that I had come to as to which persons or bodies were "charities" as referred to in the will and codicil; and that insofar as any had ceased to exist since the death of the testator, that evidence be obtained as to any successor body so that, if appropriate, a cy-près scheme could be ordered for such amount of the fund which would have passed to that body had it continued to exist. I was aware of course that if he were looking down on me Mr Justice Myers might not have approved of this procedure, but I considered it a fair, reasonably quick, proper and just way to bring about the distribution of the fund without expending most of it on costs. Naturally, some time has passed to enable all this to take place and the notice given which unfortunately prevented it from being possible to present a cheque for the appropriate amount to His Holiness Pope Benedict XVI as successor to Pope Pius XI for the express purpose of the trust upon his recent visit to Sydney. 20 Notice has been given in accordance with orders made by me on 28 July 2008 at which time the form of notice was settled which not only gave details of the proceedings and next hearing date but which set out the preliminary views I had expressed. 21 None of the persons or organisations listed in the amended summons gave notice of intention to appear. The Attorney General does not suggest the question should be answered in any way which differs from my preliminary views. 22 I find that the legacy to Archbishop Duhig was a personal gift not a charitable gift. All other gifts to beneficiaries in the list were for charitable purposes either for the advancement of religion or the relief of poverty. The gift to the Trustees of the Roman Catholic Church Cemetery at Deniliquin was revoked by codicil. The codicil acts to republish the will so that the Trustees of the Cemetery are no longer a charity mentioned in the will. In the same way gift number 23 to the Fathers of Blessed Sacrament at St Francis' Church Melbourne being a gift by codicil takes effect as a charitable gift under a will. 23 There is now evidence that there was not at the date of the will and probably never was a monastery of the Augustinian Fathers known as St Michael and St John's Monastery at Dublin. There was however and still is an entity conducted by the Augustinian Order in Dublin known as St John's Priory which conducts a novitiate in Dublin. I find in this case there was a misnomer for the latter organisation. I advise that the trustee may act accordingly. 24 There is evidence that the beneficiaries numbered 14,19 and 21 existed at the death of the deceased but have ceased to exist. The successor to those organisations pursuant to MacKillop Family Services Act 1998 (Vic) is MacKillop Family Services Limited. That body takes pursuant to s 5 of that Act, which is as follows:- 5 Certain gifts, trusts, etc. not to fail If, before, on or after the commencement of this Act (a) a gift, disposition or trust of property has been or is made or declared or is deemed to have been made or declared; or (b) a trust fund has been or is created- (whether by deed, will or otherwise) to, in favour of, for the use of, or for a charitable purpose of, a Congregation or an agency of a Congregation, the gift, disposition or trust takes effect, or may take effect, or the trust fund may be applied, on or after that commencement as if made or declare to, or created in favour of, MacKillop for a charitable purpose of MacKillop that corresponds with, or is similar to, the charitable purposes of the Congregation or agency for which the gift, disposition or trust was made or declared or the trust fund was created. Each of the three beneficiaries is an agency of a Congregation defined in that Act. The charitable purposes of each of the three bodies is set out in Column 2 of the Schedule to the Act so that the appropriate share should be applied for that purpose. 25 There is evidence that the organisation known as St Anthony's Family Care, a company limited by guarantee, is the successor to beneficiary number 18 with one of its objects being to continue to ministry of caring previously carried out by beneficiary No. 18 and is engaged in charitable work of much the same kind as was beneficiary number 18. The share to which beneficiary number 18 would have been entitled should be applied cy-près and pass to St Anthony's Family Care. 26 The will does not provide for rateable distribution. In the absence of a positive direction against equal distribution equity would take the view that equality was proper. I so determine. 27 I wish to thank the Attorney General and the Crown Solicitor for their attention and assistance in this action. The Attorney General does not seek costs. The costs of the trustee should come out of the fund. However, the fund is quite small and the present trustee has been in that office since 1983 but has not succeeded in taking any useful action until 2005 and even then the action commenced was misconceived. For these reasons costs should not be on the indemnity basis. 28 I will now make orders giving effect to these reasons, thereby concluding the 2007 action and bringing to an end Matter 377 of 1943 by determination of that matter stood over by the court in 1948. So be it. 29 I answer the questions in the amended summons as follows: 1. On the true construction of the will and codicil of Michael Joseph Treacy who died on 20 May 1938 (a) All of the beneficiaries listed in paragraph 6 of the Judgment and in the schedule to the summons, except No. 5, are charities within the designation "the various charities hereafter to be mentioned in this will". (b) The provision for maintenance of a cemetery is a valid charitable gift. (c) The gift to beneficiary No 5 is an absolute personal gift and not a charitable gift. 2. On the true construction of the said will and codicil the reference to "the various charities hereafter to be mentioned in this will does not include a charity whose gift has been revoked by codicil but does include a charity not mentioned in the will but mentioned in the codicil. It includes all the beneficiaries listed in the schedule to the summons, other than the beneficiaries numbered 1 and 5 of the Schedule. 3. On the true construction of the said will and codicil the charities entitled to share in the fund should share equally. 4. (a) In relation to beneficiaries listed as 2-4, 6-13, 15-17, 20, 22 and 23 in the Schedule to the amended summons a distribution ought to be made to those beneficiaries. (b) In relation to potential beneficiary No. 9 in the schedule namely "the Provincial of the Augustinian Fathers Sts. Michael and John's Monastery Dublin for their Novitiate in Dublin" the entity intended to be benefited was the Augustinian Order in Dublin and in particular St John's Priory Dublin and the Augustinian Novitiate in Dublin associated with St John's Priory. The Administrator is justified in distributing the share of potential beneficiary 9 to the Provincial [currently the Rev G Horan] of St Augustine's, Taylor's Lane Ballyboden Dublin to be used for the training of novices and also used by the Prior or Fathers of St John's Priory Dublin for the celebration of masses for the deceased's soul and intentions. (c) In relation to potential beneficiaries Nos. 14, 19 and 21 in the schedule (namely The Foundling Home Broadmeadows Melbourne; St Augustin's Orphanage Geelong and The Boy's Orphanage St Melbourne conducted by Christian Brothers), those beneficiaries existed at the time of the deceased's death but have ceased to exist and the organisation known as MacKillop Family Services Ltd A.C.N. 078 299 288 is the successor organisation of those beneficiaries pursuant to the MacKillop Family Services Act 1988 (Victoria) and pursuant to that Act is entitled to receive the share to which these beneficiaries would have been entitled, to be used by MacKillop Family Services Ltd A.C. N. 078 299 288: (i) In the case of the share referrable to the Foundling Home Broadmeadows Melbourne for purposes associated with child care for babies, infants and pregnant women; (ii) In the case of the share referrable to St Augustin's Orphanage Geelong for purposes associated with the care and education of boys including residential care; (iii) In the case of the share referrable to The Boy's Orphanage St Melbourne for purposes associated with the care and education of boys including residential care. (d) In relation to potential beneficiary No. 18 in the schedule St Anthony's Home for Girl Mother's Sydney that beneficiary existed at the time of the deceased's death but has ceased to exist as such, and the organisation known as St Anthony's Family Care, a charitable corporation limited by guarantee is either the successor organisation or should receive cy pres the share to which St Anthony's Home for Girl Mother's Sydney would have been entitled, to be used by St Anthony's Family Care for purposes associated with the care and shelter of girl mothers and infant children. Additional Orders 5. The Court directs that the plaintiff is at liberty to make its distribution of the shares in the fund by reference to the current name of the beneficiaries rather than the name as specified in the will. 6. Order the costs of the plaintiff be paid out of the fund, such costs to be assessed or agreed by the solicitor for the Attorney General. Note such costs are not on the indemnity basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.