John Greer v Attorney General for New South Wales [2018] NSWSC 725

Supreme Court New South Wales

Medium Neutral Citation: John Greer v Attorney General for New South Wales [2018] NSWSC 725 Hearing dates: 7 May 2018 Decision date: 23 May 2018 Jurisdiction: Equity Before: Emmett AJA Decision: The Court: 1 DECLARES THAT on the true construction of the will dated 22 December 2011 of Duncan James Bassett (the Will), and in the events which have happened: (1) the reference in cl 11(ii) of the Will to "The Avondale College Foundation" is a reference to "The Avondale Foundation ABN 54 252 903 699"; (2) the said donee in cl 11(ii) of the Will dissolved on about 16 April 2014; (3) the Testator made the gift in cl 11(ii) of the Will for charitable purposes and, as a consequence, the gift has not failed.

2 ORDERS THAT the gift made in cl 11(ii) of the Will should be administered by way of a cy-pres scheme in the following terms: (1) the Plaintiffs, being the Executors of the Will, hold the gift in cl 11(ii) of the Will (being 3/20ths of the balance of the residue) on trust for the eighth defendant in these proceedings, Avondale College Ltd; (2) the Plaintiffs pay the said gift to the eighth defendant; (3) a receipt of the treasurer or other proper officer of the eighth defendant is a sufficient discharge of the Plaintiffs' obligation to pay the said gift to the eighth defendant.

3 ORDERS THAT: (1) the Plaintiffs' costs be paid out of the Estate of the late Duncan James Bassett on the trustee basis; (2) the costs of the first defendant and the eighth defendant be paid out of the Estate of the late Duncan James Bassett on the ordinary basis; (3) the costs of the second defendant of a submitting appearance be paid out of the Estate of the late Duncan James Bassett on the ordinary basis. Catchwords: SUCCESSION – wills, probates and administration – whether gift to "the Avondale College Foundation" a reference to "the Avondale Foundation" – whether that entity dissolved – whether gift should be administered by cy-pres scheme – whether gift lapsed or failed Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 7.6 Cases Cited: GKN Bolts and Nuts Ltd Sports and Social Club Leek & Ors v Donkersley & Ors [1982] All ER 855 Tantua v MacFarlane [2010] NSWSC 244 Texts Cited: AS Sievers, Associations and Clubs Law in Australia and New Zealand (Federation Press, 2010) GE Dal Pont, Law of Associations (LexisNexis, 2017) Category: Principal judgment Parties: John Greer (First Plaintiff) Stuart Graeme Holden Tipple (Second Plaintiff) Attorney General for New South Wales (First Defendant) The Bible Society ACN 135 592 193 formerly known as The New South Wales Auxiliary of the British and Foreign Bible Society Incorporated (Second Defendant) (Submitting Appearance) Creation Ministries International (Australia) ACN 010 120 304 formerly known as Creation Science Foundation Limited (Third Defendant) Seventh-Day Adventist Church (SPD) ACN 093 117 689 Ltd as Legal Trustee of Signs of the Times (Fourth Defendant) Australasian Conference Association Ltd ACN 000 003 930 (Fifth Defendant) Seventh-Day Adventist (Australian Union Conference) Ltd ACN 112 101 783 (Sixth Defendant) 3ABN Australia Inc (Seventh Defendant) Avondale College Ltd ACN 108 186 401 (Eighth Defendant) Representation: Counsel: P Menadue (First & Second Plaintiffs) T L Wong (First Defendant) L Ellison SC (Eighth Defendant)