June Shirley Overall v Family Voice Australia Incorporated [2014] NSWSC 736

Supreme Court New South Wales

Medium Neutral Citation: June Shirley Overall v Family Voice Australia Incorporated [2014] NSWSC 736 Hearing dates: 29 May 2014 Decision date: 05 June 2014 Jurisdiction: Equity Division Before: Darke J Decision: (1) Declare that upon the true construction of clause 3(a) of the will of the late Malcolm Charles Smith, and in the events which have happened, the gift to "the Australian Festival of Light of 115 Liverpool Road, Enfield" is payable to the first defendant. (2) Order, subject to order 3, that the plaintiff pay the said gift to the first defendant. (3) Order that the plaintiff's costs be paid, on the indemnity basis, out of the said gift. Catchwords: WILLS AND ESTATES - charitable gift to unincorporated association - lapse - association subsequently becomes incorporated - incorporated body subsequently becomes a branch of a national incorporated body and is then wound-up - objects and activities remain the same throughout - whether organisation the subject of gift ceased to exist - gift over if organisation has ceased to exist - charitable gift does not lapse

EQUITY - trusts - charitable trusts - gift to unincorporated association - lapse - association subsequently becomes incorporated - incorporated body subsequently becomes a branch of a national incorporated body and is then wound-up - objects and activities remain the same throughout - whether organisation the subject of gift ceased to exist - gift over if organisation has ceased to exist - charitable gift does not lapse Legislation Cited: Associations Incorporation Act 1958 (SA) Charitable Trusts Act 1993 (NSW) s 10(2) Cases Cited: Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539 Cram Foundation v Corbett-Jones [2006] NSWSC 495 Public Trustee v Cerebral Palsy Association of Western Australia Limited [2004] WASC 36 Re Flynn [1975] VR 633 Re Goodson [1971] VR 801 Re Tyrie (No.1) [1972] VR 168 Re Vernon's Will Trusts [1972] Ch 300 Sir Moses Montefiore Jewish Home v Howell & Co Pty Ltd (No.7) [1984] 2 NSWLR 406 Category: Principal judgment Parties: June Shirley Overall (plaintiff) Family Voice Australia Incorporated (first defendant) Australian Christian Nation Association Incorporated (second defendant) Anglicare (third defendant) Christian Democratic Party (Fred Nile Group) Incorporated (fourth defendant) Representation: Counsel: M Lawson, J Moshides (plaintiff) G Blake SC (first defendant) Solicitors: Redmond Hale Simpson (plaintiff) Prolegis Lawyers (first defendant) Rocco Mimmo Lawyer (second and fourth defendants) Dooley & Associates (third defendant) File Number(s): 2013/341680 Publication restriction: Nil.