Graeme Philip White as administrator of the Estate of Josephine Agnes Virgona v Attorney General of NSW [2019] NSWSC 917

Supreme Court New South Wales

Medium Neutral Citation: Graeme Philip White as administrator of the Estate of Josephine Agnes Virgona v Attorney General of NSW [2019] NSWSC 917 Hearing dates: 2 July 2019 Date of orders: 17 July 2019 Decision date: 17 July 2019 Jurisdiction: Equity Before: Henry J Decision: (1) The residual gift made in the will of Josephine Agnes Virgona, (deceased) dated 30 January 1973 to "Our Lady Of Loreto Nursing Home for the Aged being (a special work of the St Vincent de Paul Society in New South Wales)" be applied cy-près so that one-fifth of the residue of the estate of the deceased be held by the plaintiff on trust to pay the same to the St Vincent de Paul Society NSW solely for and incidental to the purposes of Frederic House for the Aged at 182 Young Street, Waterloo, NSW. (2) The costs of the plaintiff in these proceedings be paid from the estate on an indemnity basis. (3) The costs of the first and sixth defendants be paid on an ordinary basis with the burden of those costs to be borne out of the whole of the residue of the estate. Catchwords: CHARITIES AND NOT-FOR-PROFITS – charitable gifts and trusts in a will – cy-près scheme – failure of object – where one of the charitable institutions the object of the deceased's testamentary bounty ceased operating prior to the deceased's death – where all active parties agree that the trust property should be applied cy-près – whether the deceased's will displaces the statutory presumption of a general charitable intention – presumption maintained – trust property applied cy-près Legislation Cited: Charitable Trusts Act 1993 (NSW) ss 3, 4, 6, 9, 10 Cases Cited: Attorney General (NSW) v Public Trustee (1987) 8 NSWLR 550 Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 Coshott v Royal Society for Prevention of Cruelty to Animals (1996) 40 NSWLR 446 Estate Polykarpou; Re a charity [2016] NSWSC 409 Hatzantonis v Lawrence Cox [2003] NSWSC 914 Hilder v Church of England Deaconess' Institute of Sydney Ltd [1973] 1 NSWLR 506 Monds v Stackhouse (1948) 77 CLR 232 Morrison-Conway & Anor; Estate of the Late Judith Christine Walsh [2018] NSWSC 685 Perrin v Morgan [1943] AC 399 Phillips v Roberts [1975] 2 NSWLR 207 Re Fitzpatrick (1984) 6 DLR (4th) 644 Re Harwood [1936] Ch 285 Texts Cited: G E Dal Pont, Law of Charity (2nd ed, 2017, LexisNexis Butterworths) Category: Principal judgment Parties: Graeme Philip White as administrator of the Estate of Josephine Agnes Virgona (plaintiff) Attorney General of NSW (first defendant) Guide Dogs NSW/ACT (second defendant) Vision Australia (third defendant) Cerebral Palsy Alliance (fourth defendant) The Sydney Children's Hospital Network (Randwick and Westmead) (incorporating the Royal Alexandra Hospital for Children) (fifth defendant) St Vincent de Paul Society NSW (sixth defendant) Representation: Counsel: R Tregenza (plaintiff) Z Heger (first defendant) C Birtles (sixth defendant)