Attorney-General (Qld) (Ex rel Nye) v Cathedral Church of Brisbane

Attorney-General (Qld) (Ex rel Nye) v Cathedral Church of Brisbane - [1977] HCA 15 - HCA 1977 case summary — Zoe

[22]

Two actions were heard before Stable J. (Supreme Court of Queensland), both concerning St Martin's Hospital in Brisbane. In the first of them, the Attorney-General ex relatione claimed a declaration that the Corporation of the Lesser Chapter of the Cathedral Church of Brisbane ("the Lesser Chapter") stood possessed of certain lands together with all buildings thereon including the building known as St Martin's War Memorial Hospital upon trust to conduct on the said lands a hospital for the healing of the sick situated beside and closely connected with the Cathedral Church of St John the Evangelist at Brisbane as a permanent War Memorial, and an injunction restraining the Lesser Chapter from dealing with the said lands except for the purpose of the carrying on on the said lands of a hospital for the healing of the sick and restraining the Lesser Chapter from demolishing the buildings on the said lands. Against the Corporation of the Synod of the Diocese of Brisbane ("the Synod") and the Lesser Chapter a declaration was sought that moneys and other property which the Lesser Chapter and the Synod had accumulated as a result of the conduct of the St Martin's War Memorial Hospital were held by them upon trust as aforesaid and an injunction was sought restraining the Lesser Chapter and the Synod from dealing with the said moneys and other property save in the performance and execution of the said trust. By amendment to this declaration specific mention was made of what are described as the Moretti Bequest moneys to which reference will be made hereafter. Against the Synod a declaration was sought that certain lands which in the course of the hearing came to be referred to as the St Clare lands were held upon trust as aforesaid, and an injunction was claimed restraining the Synod from dealing with those lands save in the performance and execution of the trusts. Stable J. dismissed this action with costs, and it is against that dismissal that the Attorney-General and the relators appeal.

[57]

What is claimed by the appellants is that the Pyrmont lands and the Frascati lands at least were sold by the Lesser Chapter to the charity constituted by St Martin's Hospital. The question is not whether a sale or appropriation of the lands would be a breach of any trust upon which the lands were held but whether the sale or appropriation was within the powers of the corporation. Since there were no express trusts over these lands created by any original donor thereof or declared or contained in any Act of Parliament in which the lands were specially mentioned, the Lesser Chapter had power pursuant to cl. 25 of the Cathedral Canon which incorporates the power of the Synod contained in s. 13 of the Church of England Act of 1895 and s. 2 of the Church of England Act of 1895 Amendment Act of 1901 to mortgage, charge, alienate or otherwise deal with and dispose of the lands. It is therefore not correct that because the lands may have been purchased for Cathedral purposes they were thereafter irrevocably devoted to those purposes. They could nevertheless be sold or otherwise dealt with by the Lesser Chapter. Paragraphs (a), (b) and (c) of Canon 39 deal with the application of Cathedral property in ways unrelated on the one hand to investment which is dealt with in par. (d), and on the other hand to sales or other dealings with Cathedral property in its general administration. If St Martin's Hospital is a separate charity and if the intention was to appropriate the land outright to it, the Lesser Chapter had power under cl. 25 of the Canon for full consideration in furtherance of that appropriation to declare that thereafter it would hold the property upon trust for the charitable object or body from whose funds the consideration came, namely, St Martin's Hospital. The position is complicated by the fact that the Lesser Chapter was also the trustee of St Martin's Hospital, but on the assumption that St Martin's Hospital was a separate charity which happened to have the same trustee of its funds as the trustee of property from which it is claimed that the property was purchased with those funds then, provided that the intention was clear, there was nothing to prevent the Lesser Chapter declaring that for the full consideration received the beneficial interest in the property would thereafter be held by it for the charity providing the purchase price. Consequent entries in the accounts of the Lesser Chapter, again assuming that St Martin's Hospital is a separate and distinct charitable trust, are therefore not merely internal bookkeeping records of the Lesser Chapter but are evidence of its actions and intentions in relation thereto respecting the distinct beneficiaries of which it was the trustee. It is only if St Martin's Hospital and its Building Fund do not constitute a charitable trust distinct from the Cathedral itself that it might correctly be said that the entries in the books of account of the Lesser Chapter do no more than express preferred internal accounting procedures.

[66]

It therefore becomes necessary to determine whether the corporation has wholly parted with its beneficial interest in the lands in favour of the charitable object St Martin's Hospital so that the lands are held in trust for that object. If it has not wholly parted with its beneficial interest, then it is necessary to determine what, if any, interest the charity has had in the lands upon which its funds have been expended. This question concerns mainly the Pyrmont lands and the Frascati lands. On both of them hospital buildings have been erected. The funds were originally raised in order to rebuild on the Pyrmont lands. They were not raised in order to purchase the Pyrmont lands. The latter were to be provided by the Lesser Chapter. There is no clear evidence that the whole beneficial interest in the lands was intended to be transferred outright to the charity St Martin's Hospital. On 26th October 1920 the Chapter resolved that the site known as Pyrmont be appropriated for the purposes of St Martin's Hospital. An amount of £3,958.11.10 was debited shortly afterwards to the Hospital Account and an amount of £4,000 owing to the A.M.P. Society was later debited to the Hospital Account. Although an inference might be open that the whole beneficial interest in the land was intended to be transferred from the purposes of the Cathedral to the purposes of the hospital, it is slender evidence upon which to conclude that the Lesser Chapter in its capacity of trustee of Cathedral property intended unconditionally to relinquish in favour of the hospital trust all interest in the land. The Cathedral had a very great interest in ensuring that the Pyrmont lands were used only for the purposes of St Martin's Hospital being conducted upon that site. It had originally purchased the old hospital with a primary purpose of protecting the Cathedral against commercial development in such close proximity. In these circumstances despite the entries in the accounts it would be unsafe to draw the inference that the intention was to transfer the beneficial interest absolutely from the charitable object which was the Cathedral to the charitable object which was the hospital.

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Cited By (3)