Baptist Community Services v Attorney General of NSW [2013] NSWSC 500

Supreme Court New South Wales

Medium Neutral Citation: Baptist Community Services v Attorney General of NSW [2013] NSWSC 500 Hearing dates: 03/05/2013 Decision date: 03 May 2013 Jurisdiction: Equity Division Before: Young AJ Decision: Scheme of administration & cy pres approved Catchwords: CHARITIES - Administrative scheme - no question of principle. Legislation Cited: Associations Incorporation Act 1984 (NSW) Charitable Collections Act 1934 (NSW) Charitable Trusts Act 1993 (NSW) Category: Principal judgment Parties: Baptist Community Services - NSW & ACT (Plaintiff) Attorney General of New South Wales (Defendant) Representation: Counsel: BAJ Coles QC / S Robertson (Plaintiff) DL Ward (Defendant) Solicitors: Church & Grace (Plaintiff) Crown Solicitor (Defendant) File Number(s): 2013/42420

Judgment (ex tempore - revised 6 may 2013) 1HIS HONOUR: This is an application in respect of a charity whose purpose is to provide accommodation for persons aged 65 and over of limited means in the Five Dock area. The application is brought under the Charitable Trusts Act 1993 (NSW) and the inherent jurisdiction of the Court. 2It is unnecessary to my mind to go into great detail about the matter. It would seem that Mrs Kitty Doyle and other people of good heart in the Five Dock area in the 1950s decided that there was a need to provide low cost accommodation for people of limited means in their area and they worked together to contribute to a fund, which initially appears to have been called "The Drummoyne-Five Dock Pensioners' Appeal Fund". That fund raising was successful. The fund obtained a considerable sum of money and the administration of it became registered under the then Charitable Collections Act 1934 (NSW). 3In due course the fund purchased a property at number 8 xxxxx Road Five Dock and today there are 32 bedsit units erected at number 8. The fund also bought cottages, which it still owns, at numbers 10 and 12 in that road which remain and are occupied by beneficiaries. 4The ensuing 60 years meant that the original founders got too old to be involved in the administration or died and the administration of the enterprise went through various stages. At one stage an association incorporated under the then Associations Incorporation Act 1984 (NSW) known as Kitty Doyle Home Units Trust Incorporated" was formed and became the trustee until 16 September 2003 when the plaintiff became the trustee. The registration of "Kitty Doyle Home Units Trust Incorporated" was cancelled in 2004. 5The plaintiff is a corporation and is, as its name suggests, closely allied with the Baptist Churches. The Baptist Churches have various divisions to administer their charitable works and the plaintiff is involved with administering its involvement with services for the community including provision of homes for the less wealthy citizens of the state. It has administered the present trust since 2003. 6The assets of the trust are the three parcels of real estate to which I have referred plus some cash. However, over the years that cash has diminished and over the years the buildings on the land have needed more and more maintenance or renovation. The situation now is that the annual expenses exceed the income and it is quite clear that this situation cannot continue because if it does the properties would need to be sold and a cy pres scheme put in for the moneys that would be generated. 7The plaintiff proposes that the trust be amalgamated with other schemes it has to produce low cost housing for the needy. It put the proposal to the Attorney General and the Attorney General by his delegate the Solicitor General duly gave consent to the present proceedings to be instituted. These proceedings really are a scheme to administer the trust though there are some cy pres aspects to it. 8The case to my mind is very clear. The trust is clearly a charitable trust for the relief of poverty. It is in a situation where unless something happens the original purpose will no longer be capable of being carried out. A scheme is being proposed whereby the great majority of the purposes will be continued and the beneficiaries who are currently in residence will be able to remain where they are. 9The alternatives to the present scheme are less conducive to the carrying out of the objects of the trust. The plaintiff and the Attorney General agree that the proposed scheme is the best way forward and having considered all the evidence I wholeheartedly agree and congratulate the parties for coming to such a sensible arrangement. 10Accordingly, I make order 1 in the summons, that is to set up the scheme which the scheme should be identified as being PX3 in these proceedings, and I order that the costs of and incidental to these proceedings and to the establishment of the scheme be provided out of the assets of the "Kitty Doyle Trust." Those are the orders I make. 11I order the return of the exhibits other than exhibit 3.