Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666

Supreme Court New South Wales

Medium Neutral Citation: Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 Hearing dates: 26 October 2018 Date of orders: 31 October 2018 Decision date: 31 October 2018 Jurisdiction: Equity Before: Kunc J Decision: Administrative scheme ordered; parties' costs to be paid out of the fund on the indemnity basis Catchwords: CHARITIES — Charitable gifts and trusts — Validity and practicability — Administrative scheme Legislation Cited: Charitable Trusts Act 1993 (NSW) Royal Botanic Gardens and Domain Trust Act 1980 (NSW) Cases Cited: Corish v Attorney-General's Department of NSW [2006] NSWSC 1219 College of Law Pty Limited v Attorney-General of NSW [2009] NSWSC Perpetual Trustee Ltd v Attorney General of NSW (Will of Hon G Nesbitt) [2018] NSWSC 1456 University of Adelaide v Attorney General (SA) [2018] SASC 82 Category: Principal judgment Parties: Royal Botanic Gardens and Domain Trust (Plaintiff)

The Attorney General of New South Wales (Defendant) Representation: Counsel: D Barlin (Plaintiff) Dr C Mantziaris (Defendant)

Solicitors: Finn Roache (Plaintiff) Crown Solicitor for New South Wales (Defendant) File Number(s): 2018/40809 Publication restriction: No

Judgment

Summary 1. The public gardens of Sydney are among the glories of our city. They are oases of recreation and research. Their staff are dedicated and skilled. 2. The Court has no doubt that the late Lorna May Backhouse ("Mrs Backhouse") shared those sentiments. Her home was on the Old Bells Line of Road at Mount Tomah, not far from the Blue Mountains Botanic Garden at Mt Tomah (the "Mt Tomah Garden"), where she was a regular volunteer. 3. Mrs Backhouse died on 31 May 2010. By her will dated 4 January 1996, she left part of the residue of her estate to the plaintiff, Royal Botanic Gardens and Domain Trust ("RBGDT"), on trust to establish "The Lorna and Clive Backhouse of Mt Tomah Scholarship" to be awarded every two years to a member of staff at the Mt Tomah Garden (the "Scholarship Trust"). RBGDT received just over $1.1 million from Mrs Backhouse's estate to form the corpus of the Scholarship Trust. With accumulated interest income, the current value of the Scholarship fund is approximately $1.3 million. 4. These proceedings were brought by RBGDT because it wishes to be able to award the scholarship annually and to more than one person in any year. 5. RBGDT and the defendant, the Attorney General of New South Wales, have agreed that, subject to the consent of the Court, an administrative scheme be ordered to give effect to RBGDT's intention (the "Scheme"). Although the parties have agreed on the orders to be made, the administration of charitable trusts is a matter of public interest and it remains a matter for the Court to determine whether the orders should be made. These are the reasons why the Court is satisfied that the Scheme should be ordered. The Scheme is set out at the conclusion of these reasons as part of the orders of the Court.