Anglican Development Fund Diocese of Bathurst in its own capacity and in its capacity as trustee of the Anglican Development Fund Diocese of Bathurst (receivers and managers appointed) –v– The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst; Commonwealth Bank of Australia –v– The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst [2015] NSWSC 1856

Supreme Court New South Wales

Medium Neutral Citation: Anglican Development Fund Diocese of Bathurst in its own capacity and in its capacity as trustee of the Anglican Development Fund Diocese of Bathurst (receivers and managers appointed) –v– The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst; Commonwealth Bank of Australia –v– The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst [2015] NSWSC 1856 Hearing dates: 14, 15, 16, 20, 21, 22, 23, 27, 28, 29, 30 April 2015, 4, 5, 6, 7, 11, 12, 13, 14, 18, 19, 20, 21, 26, 27, 28 May 2015, 4, 9, 10, 11, 15, 16, 17, 18, 24, 25 June 2015, 19 August 2015, 8, 30 October 2015 Decision date: 10 December 2015 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: See paragraphs 610 and 611 Catchwords: CHURCHES AND RELIGIOUS ASSOCIATIONS – Anglican Church of Australia – Diocese of Bathurst (the Diocese) – constitution, management and powers – church property and trusts – CONTRACTS – a Diocesan corporation (the Debtor) borrowed money from a bank (the Bank) – in a letter under his signature and seal (the Letter of Comfort) the Bishop of the Diocese certified pursuant to a Church Ordinance that the Diocese undertook responsibility for the loan and also confirmed that the Diocese was committed to ensuring that the Debtor met its financial commitment to the Bank and undertook to use its best endeavours and powers conferred by legislative and other means to resolve issues which may arise with the loan – under another Church Ordinance the Debtor is guaranteed by the Diocese to the extent that should it have any deficiency in funds the Bishop-in-Council (BIC) is to promote an ordinance to levy the necessary funds from the parishes – whether the Letter of Comfort was intended to create legally binding relations – who are the parties to it – whether its terms are certain – AGENCY – whether the Bishop was authorised to bind BIC – VOLUNTARY ASSOCIATIONS – whether BIC as the management committee of the voluntary association which is the Diocese is liable to perform obligations undertaken in the Letter of Comfort – CHURCH LAW – whether certain ordinances (including the Ordinance under which the Debtor's deficiency is guaranteed) are binding as between BIC and the Bank and BIC and ADF – whether Certificates given by the Bishop are legally binding – STATUTORY CONSTRUCTION – Supreme Court Act s 65(1) – whether BIC owes an enforceable duty to the Bank in which it is personally interested – EQUITY – trusts and trustees – church trust property – whether there exists church trust property accessible to BIC to discharge its obligations – RELIEF – appropriate relief Legislation Cited: Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) Church of England Trust Property Incorporation Act 1881 (44 Victoria) (NSW) Corporations Act 2001 (Cth) Church of England Property Management Act 1866 (Act 30 Victoria) (NSW) Anglican Church of Australia Constitutions Act 1902 (NSW) Anglican Church of Australia Constitution Act 1961 (NSW) Anglican Church Trust Property Act 1917 (NSW) Charitable Trusts Act 1993 (NSW) Contracts Review Act 1980 (NSW) Fair Trading Act 1987 (NSW) Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Common Law Procedure Act 1899 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Church of England Property Act 1889 (52 Victoria) (NSW) Church Acts Repealing Act of 1897 (NSW) Cases Cited: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Norman; in the matter of Forest Enterprises Limited v FEA Plantation Limited [2011] FCAFC 99 Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Banque Brussels Lambert SA v Australia National Industries Ltd (1989) 21 NSWLR 502 Giliberto v Kenny (1983) 48 ALR 620 Prenn v Simmonds [1971] 1 WLR 1381 Tomko v Palasty [2007] NSWCA 258 Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640 Hillas & Co Ltd v Arcos Ltd [1932] All ER Rep 494 Meehan v Jones (1982) 149 CLR 571 Carlton Cricket & Football Social Club v Joseph [1970] VR 487 Ex parte Goddard; Re Falvey (1946) 46 SR (NSW) 289 Peckham v Moore [1975] 1 NSWLR 353 Scandrett v Dowling (1992) 27 NSWLR 483 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 Affleck v Newcastle Mind & Others [1999] ICR 852 Harrington v Coote (2013) 119 SASR 152 Ward v Eltherington [1982] Qd R 561 Cameron v Hogan (1934) 51 CLR 358 Fielding v Houison (1908) 7 CLR 393 Watkinson v Hollington [1944] 1 KB 16 City of Vancouver v BCP Telephone Co [1951] SCR 3 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Crabtree-Vickers v Australian Direct Mail Advertising & Addressing Co (1975) 133 CLR 72 Placer Development Limited v The Commonwealth of Australia (1969) 121 CLR 353 Bailes v Modern Amusements Pty Ltd [1964] VR 436 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 Allcars Pty Ltd v Tweedle [1937] VLR 35 Thorby v Goldberg (1964) 112 CLR 597 Yaroomba Beach Development Co Pty Ltd v Coeur De Lion Investments Pty Ltd (1989) 18 NSWLR 398 at 404 Head v Kelk (1963) 63 SR (NSW) 340 Egel v Drogemuller [1936] SASR 407 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Hospital Products Limited v United States Surgical Corporation and Others (1984) 156 CLR 41 Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640 Sheffield District Railway v Great Central Railway Co (1911) 27 TLR 451 Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 Pips (Leisure Productions) Ltd v Walton (1980) 43 P & CR 415 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 MacarthurCook Fund Management Ltd v Zhaofeng Funds Ltd [2012] NSWSC 911 Hickman v Kent or Romney Marsh Sheep-Breeders' Association [1915] 1 Ch 881 Residues Treatment & Trading Co Ltd v Southern Resources Ltd (No 2) (1988) 51 SASR 177 Eley v Positive Government Security Life Assurance Co Ltd (1875) 1 Ex D 20 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc (1994) 181 CLR 404 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Attorney-General v Gould (1860) 28 Beav 485 Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 Attorney-General and Others v Church of England Property Trust Diocese of Sydney (1933) 34 SR (NSW) 36 The Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) and Others (1940) 63 CLR 209 Alghussein Establishment v Eton College [1991] 1 All ER 267 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Re King; Jackson v Attorney General [1917] 2 Ch 420 Metropolitan Petar & Ors v Mitreski & Ors [2001] NSWSC 976 Maks v Maks (1986) 6 NSWLR 34 Mack v Lenton (1993) 32 NSWLR 259 Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010 Minassian v Minassian [2010] NSWSC 708 United Australia Limited v Barclays Bank Limited [1941] AC 1 Texts Cited: K.L. Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand, (1st ed 1986, The Law Book Company Limited) Stewart, Campbell, Baughen, The Law of Unincorporated Associations, (1st ed 2011, Oxford University Press) Macquarie Concise Dictionary (4th ed 2006, Macquarie Dictionary Publishers Pty Ltd) Oxford English Dictionary (2nd ed 1989, Oxford University Press) M. Furmston and G.J. Tolhurst, Contract Formation: Law and Practice, (1st ed 2010, Oxford University Press) LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW, vol 2 (at Service 98) J.D. Heydon and M.J. Leeming, Jacobs' Law of Trusts in Australia (7th ed 2006, LexisNexis Butterworths) New South Wales, Parliamentary Debates, Legislative Assembly, 30 November 1916, 3139 (Attorney-General, D.R. Hall) Category: Principal judgment Parties: Proceedings 2014/75940 Anglican Development Fund Diocese of Bathurst in its own capacity and in its capacity as trustee of the Anglican Development Fund Diocese of Bathurst (receivers and managers appointed) – Plaintiff The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst – First Defendant Ellen Sharp – Second Defendant The Venerable Francis Hetherington – Third Defendant The Very Reverend Anne Wentzel – Fourth Defendant Robert Woods – Fifth Defendant The Reverend Canon Craig Moody – Sixth Defendant The Reverend Canon Margaret Finlay – Seventh Defendant The Reverend Canon Grahame Yager – Eighth Defendant The Reverend Brett Watterson – Ninth Defendant The Reverend James Hodson – Tenth Defendant The Reverend Gary Neville – Eleventh Defendant The Reverend Dr Max Wood – Twelfth Defendant The Reverend Leigh Gardiner – Thirteenth Defendant Marilyn Baker – Fourteenth Defendant Graham Leatherland – Fifteenth Defendant Coral McFarland – Sixteenth Defendant Ray Norman – Seventeenth Defendant Janet Price – Eighteenth Defendant Sue West – Nineteenth Defendant Leigh Edwards – Twentieth Defendant Anglican Property Trust Diocese of Bathurst (ABN 15 968 693 964) – Twenty-first Defendant All Saints' College Bathurst Council (ABN 43 418 897 717) – Twenty-second Defendant Bathurst Endowment of the See Board (ABN 89 509 521 070) – Twenty-third Defendant