TRUST COMPANY LIMITED re PETER MITCHELL v ATTORNEY-GENERAL OF NEW SOUTH WALES [2011] NSWSC 206

Supreme Court New South Wales

Medium Neutral Citation: TRUST COMPANY LIMITED re PETER MITCHELL v ATTORNEY-GENERAL OF NEW SOUTH WALES [2011] NSWSC 206 Hearing dates: 15 March 2011 Decision date: 15 March 2011 Before: Tamberlin AJ Decision: The Court: 1. Determines that the original Empire purposes of the Peter Mitchell British Military Forces Trust and the Peter Mitchell British Empire Naval Forces Trust have ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trusts. 2. Orders that a cy-pres scheme be settled to apply: (i) the capital and income of the Peter Mitchell British Empire Military Forces Trust to augment the capital of the Peter Mitchell Australian Military Forces Trust; and (ii) the capital and income of the Peter Mitchell British Empire Naval Forces Trust to augment the capital of the Peter Mitchell Australian Naval Forces Trust. 3. Orders that Orders made by Justice Myers in this matter on 14 April 1961 which were taken out on 27 March 1972 be vacated and that the above orders be made in lieu thereof. 4. Orders that the Plaintiff's costs be paid equally on an indemnity basis from the Peter Mitchell Empire Military Forces Trust and the Peter Mitchell British Empire Naval Forces Trust. 5. Orders that the Defendant's costs be paid equally on an indemnity basis on the Peter Mitchell British Empire Military Forces Trust and the Peter Mitchell British Empire Naval Forces Trust. 6. Liberty for either party to apply on three days' notice. Catchwords: EQUITY - trusts - charitable trusts - application of cy-pres scheme where purpose not suitable and effective method of using the trust property - application of Charitable Trusts Act 1993 (NSW), s 9 to proceedings commenced before enactment of Act considered - operation of cl 5.26 - whether substantive or procedural Legislation Cited: Charitable Trust Act 1993 (NSW), ss 9, 26 Cases Cited: Attorney-General for New South Wales v Fulham [2002] NSWSC 629 Permanent Trustee Company Ltd v Attorney-General (Re Byrnes Estate) (No 2) (Unrep 1 March 1995 NSWSC) (BC9504291) Category: Principal judgment Parties: Trust Company Limited as trustee for the Peter Mitchell British Empire Military Forces Trust and the Peter Mitchell British Empire Naval Forces Trust - Plaintiff Attorney-General of New South Wales - Defendant Representation: Counsel: R N S Young - Plaintiff M Izzo - Defendant Solicitors: E Lawson, The Trust Company - Plaintiff I V Knight - Defendant File Number(s): 2000/38257