Bodalla Aboriginal Housing Company Ltd v Eurobodalla Shire Council [2012] NSWCA 408

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bodalla Aboriginal Housing Company Ltd v Eurobodalla Shire Council [2012] NSWCA 408 Hearing dates: 1 November 2012 Decision date: 12 December 2012 Before: McColl JA at [1]; Hoeben JA at [2]; Tobias AJA at [3]. Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: RATING - whether the subject land is exempt from the payment of rates pursuant to s 556 (1) (h) Local Government Act - whether it was proper to categorise the appellant as a "public charity" within the meaning of s 556 (1) (h) Local Government Act- whether the non charitable objects of the memorandum of association were ancillary, incidental, dependant or concomitant to the four charitable objects

STATUTORY INTERPRETATION - whether s 23 Charitable Trusts Act excised the non charitable and invalid purposes of the memorandum of association and had application to the issue calling for determination under s 556 (1) (h) Local Government Act - whether regard can be had to the activities of the appellant where the memorandum sets out details of its purposes and objects Legislation Cited: Charitable Trusts Act 1993 Church of England Trust Property Act 1917 Civil Procedure Act 2005 Conveyancing Act 1919 Companies Act 1961 Land and Environment Court Act 1979 Local Government Act 1993 Supreme Court Act 1970 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Bodalla Aboriginal Housing Company Limited v Eurobodalla Shire Council [2011] NSWLEC 146; (2011) 184 LGERA 315 College of Law (Properties) Pty Ltd v Willoughby Municipal Council (1978) 38 LGRA 81 Federal Commissioner of Taxation v Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204 Joyce v Ashfield Municipal Council (1959) 4 LGRA 195 Ku-ring-gai Municipal Council v Nalty (1949) 17 LGR (NSW) 136 Maclean Shire Council v Nungera Co-operative Society Ltd (1995) 86 LGERA 430 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Re Inman [1965] VR 238 Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48 Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521; (1975) 33 LGRA 11 Texts Cited: G E Dal Pont, Law of Charity (2010) LexisNexis Butterworths I J Hardingham, "Trusts including Charitable and Non Charitable purposes - special statutory provisions" (1973) 47 ALJ 68 J D Heydon, M J Leeming, Jacobs Law of Trusts in Australia, 7th ed (2006) LexisNexis Butterworths Category: Principal judgment Parties: Bodalla Aboriginal Housing Company Ltd (Appellant) Eurobodalla Shire Council (Respondent) Representation: Counsel: P McEwen SC (Appellant) J Robson with C Ireland (Respondent) Solicitors: Warren McKeon Dickson (Appellant) Andrew Warren Associates (Respondent) File Number(s): CA32167 of 2012 CA274517 of 2012 Decision under appeal Date of Decision: 2012-08-25 00:00:00 Before: Preston CJ File Number(s): 40456 of 2011