Attorney General of New South Wales v Homeland Community Ltd [2015] NSWCA 15

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v Homeland Community Ltd [2015] NSWCA 15 Hearing dates: 9 and 10 October 2014 Date of orders: 16 February 2015 Decision date: 16 February 2015 Before: Macfarlan JA at [1]; Meagher JA at [106]; Sackville AJA at [107] Decision: The appeal is dismissed with costs Catchwords: TRUSTS – charitable trusts – Attorney General brought proceeding to enforce charitable trust – purported creation of charitable trust – whether valid – transfer of trust property by putative trustees to respondent company – whether primary judge erred in allowing company to amend its defence and withdraw admission that trust existed – whether the company took the transfer of the property with notice that it was intended to hold the property on charitable trust – whether a solicitor who drafted relevant documents was an agent of the company – whether agency could be inferred from informal communications – application to adduce further evidence on appeal refused – appeal dismissed Legislation Cited: Charitable Collections Act 1934 (NSW) Real Property Act 1900 (NSW), ss 42, 43 Stamp Duties Act 1920 (NSW) Supreme Court Act 1970 (NSW), s 75A Trustee Act 1925 (NSW), s 63 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Attorney General in and for the State of New South Wales v Homeland Community Ltd [2013] NSWSC 723 Bahr v Nicolay (No 2) [1988] HCA 16; 164 CLR 604 Bogdanovic v Koteff [1988] 12 NSWLR 472 Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337 Fox v Percy [2003] HCA 22; 214 CLR 118 Frazer v Walker [1967] 1 AC 569 Gerard Cassegrain & Co Pty Limited v Felicity Cassegrain [2013] NSWCA 453 In re the Will of Gilbert [1946] 46 SR (NSW) 318 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Overall v Family Voice Australia Incorporated [2014] NSWSC 736 Re Coulson [2014] VSC 353 Saunders v Vautier [1841] 41 ER 482 Sir Moses Montefiore Jewish Home v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406 Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Category: Principal judgment Parties: Attorney General in and for the State of New South Wales (Appellant) Homeland Community Ltd (Respondent) Representation: Counsel: R C Newlinds SC/N L Sharp (Appellant) M A Ashhurst SC/A G Martin (Respondent)