Australian Youth & Health Foundation v Perpetual Trustee Company Ltd [2017] NSWCA 127

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australian Youth & Health Foundation v Perpetual Trustee Company Ltd [2017] NSWCA 127 Hearing dates: 20 April 2017 Date of orders: 06 June 2017 Decision date: 06 June 2017 Before: Bathurst CJ at [1]; Beazley P at [50]; Meagher JA at [51] Decision: 1. Direct the parties within 7 days to bring in short minutes of orders to give effect to this judgment.

2. In the event the parties are unable to agree on the appropriate orders within the period of 7 days, direct that each of them within 14 days of the date hereof file with the Court draft short minutes of orders together with submissions in support of them. Catchwords: TRUSTS AND TRUSTEES – construction of charitable trust in a will – whether question posed for judicial advice not a proper question under s 63 of Trustee Act – whether error in advice that trustee justified in forming opinion under proviso to will – whether failure to have regard to the effect of s 63 of the Trustee Act on the right to litigate the propriety of any formulation of opinion under proviso by trustee – whether error in proper construction of clause – whether error in finding that arguable that beneficiary utilised funds for a purpose other than that set out in clause – whether error in finding trustee had no obligation to reconsider the opinion formed under the proviso to the clause Legislation Cited: Corporations Act 2001 (Cth) Charitable Trusts Act 1993 (NSW) Trustee Act 1925 (NSW) Cases Cited: Beck v Henley (2014) 11 ASTLR 457; [2014] NSWCA 201 Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36 Gale v Gale (1914) 18 CLR 560; [1914] HCA 53 James v Douglas [2016] NSWCA 178 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Category: Principal judgment Parties: Australian Youth & Health Foundation (Appellant) Perpetual Trustee Company Limited (Respondent) Representation: Counsel: N Cotman SC / D Knoll AM (Appellant) B Coles QC / S Robertson (Respondent)