Chin Kwun Kwong v Dennis Ming Chung Low

Reasons for Judgment

These proceedings concern the Sze Yup Kwan Ti Temple in Glebe ("the Temple"). In 1897, a trust ("the Trust") arose by way of donations made by members of the public and the trustees attempted to record its terms in a deed dated 1 July 1897 ("the Trust Deed"). All of the land on which the Temple is situated is held by the Trust. The Plaintiff is one of the trustees of the Trust. The Defendants are all of the other current trustees of the Trust.
These proceedings commenced after disputes had arisen between the Plaintiff and the Defendants. The Defendants challenged the standing of the Plaintiff to bring the proceedings because, on the Defendants' contention, the Trust is a charitable trust and the proceedings are "charitable trust proceedings" within the meaning of s 5(2)(b) of the Charitable Trusts Act 1993 (NSW), with the consequence that either the Attorney-General's approval or leave of the Court is required and no approval or leave has been obtained. The Attorney-General has, however, intervened in these proceedings and the Plaintiff's position changed over time because, once the Attorney-General intervened, the Plaintiff asserted that the Trust was not a charitable trust.
I set out the terms of the Trust Deed: DECLARATION OF TRUST 1 JULY 1897 Number 171 Book 602 Declaration of Trust. Stamp date 1.7.97 TO ALL TO WHOM These presents shall come the Johnny May Sing of Sydney in the colony of New South Wales Cook, Chin Han Guan of Sydney aforesaid Lodging House Keeper, Hung Yen of George Street Sydney aforesaid Cook, and Ah Fong of Pitt Place off Pitt Street Sydney aforesaid Cabinet Maker SEND GREETINGS Whereas by indenture of conveyance made the Twenty fourth day of one thousand eight hundred and ninety seven and registered No 102 Book 602 and made between Elizabeth Downes of the first part Myles Downes of the second part and us the said parties hereto of the third part all in the said reciled indenture described as purchasers in consideration of the sum of three hundred and twenty five pounds then paid to the said Elizabeth Downes the said Elizabeth Downes did hereby appoint and the said Elizabeth Downes and Myles Downes did hereby convey the lands and hereditaments therein and hereinafter described unto and to the use of us the said parties hereto and our heirs and assigns forever and Whereas the said parties hereto have agreed between themselves to execute these present Nav Kicouife, and these presents witness That we the said Johnny Moy Sing, Chin Han Guam, Hung Yen and Ah Fong do hereby acknowledge declare and agree that we our heirs and assigns hold and will hold stand striped and possessed of All that piece of land containing by ……….thirty and three tenths perches or thereabouts situated in the parish of Petersham county of Cumberland and colony of New South Wales being part of lot Twenty Three of the Englington Estate Glebe Point commence you the south western building line of Francis Street at a point bearing North westerly and distant fifty feet from the intersection of that building line with the North Western boundary fence of the late Sir George Higrain Allenses Estate and bounded thence on the North East by Francis Street aforesaid bearing North Westerly fifty feet thence on the North west by a line parallel to North western boundary fence of the late Sir George Higrain Allenses Estate aforesaid bearing South west by one hundred and sixty five feet to the point of commencements to the use upon the Trusts and to and for the ends intents and purposes, and with and under and subject to the powers and promises hereinafter expressed of and concerning the same that is to say upon trust subject however to any rights given or created therein under the powers herein after contained to permit all persons of the Chinese race in the colony of New South Wales who are natives of the following districts in Canton China, namely Sun Ning, Sun Hay, Hoy Ping Ying Ping and which said districts are generally known as the See Yin or See Yap tn use the said lands and hereditaments and the building hereafter to be erected there on as Chinese Joss House according to the practices usages and customs inclusive of the payments of the fees appertaining to Joss Houses in the said See yip districts provided however that we the said parties hereto or other the trustee or trustees for the time being of the said lands and hereditaments may from time to time when we or they deem fit sell the said lands and hereditaments either by private sale or public contract and make or agree to any stipulations or provisions as to title or evidence of title and buy in at any sale by auction and rescind or vary any contract and enter into any new contract for sale and also raise money from any person or persons or company or corporation whatsoever at such rate and for such period as we or they may think fit on the security of the said land and hereditaments and in such sums as to us or mem shall seem fit and for that purpose to give Equitable or legal mortgages over the said land and hereditaments or any part there of. and from time to time to pay of such money and to re-borrow and with original powers and to re-mortgage the said land and hereditaments and such mortgage may contain powers of sale and all other usual and proper powers as we or they may be advised to give PROVIDED the receipt in writing by the said parties hereto or the survivor or survivors of us or if the trustee or trustees of the said lands and hereditaments for the time being for the purposes hereof shall be a sufficient and effectual discharge to all and every person or persons whomsoever paying the consideration money to us or them or any such sale as aforesaid or on any such mortgage or mortgages PROVIDED that we or they shall not sell or mortgage the said lands and hereditaments with out the consent of a majority of a meeting of the said Chinese who are residents in Sydney aforesaid and its suburbs or of such of the said church as shall attend the same summoned or called according to the custom of the said Chinese natives of the said See Yip or See Yap District and PROVIDED that the purchase money on any such sale or the consideration money of such mortgage or mortgages decided and used in such manner as the said Chinese residents from the said district shall in meeting summoned as aforesaid determine PROVIDED however and it is further declared that no person purchasing such land or taking a mortgage from us or the trustees or the legal owners for the time being of the said lands and hereditaments shall be affected by notice of these present or be bound to see or enquire whether such meetings have been duly held or summoned or whether such meetings shall have determined to sell the said land and hereditaments or be found to enquire into the legality of such sale or mortgage in any manner whatsoever and the receipt or receipts as aforesaid for the consideration money on any sale or mortgage shall be a sufficient discharge and shall also effectually discharge the person or persons paying the same from being bound to see to the applications or being answerable for the loss or mis-application thereof PROVIDED further and is hereby agreed that the said parties hereto may appoint next trustees of the said lands and hereditaments either by conveyance or by virtue of the provisions of the Trustees Property ACTS or otherwise as they may deem fit hereafter IN WITNESS whereof the said parties to these present herein seal their hands and seals the first day of July in the year one thousand eight hundred and ninety seven Signed and sealed and delivered by J. Moy Sing, Chin Han Guan, Hung Yee and Ah Fong.

Schedule A IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY REGISTRY EQUITY DIVISION 2014/327875 Kwong v. Low Short Minute of Orders by Consent

Without prejudice to any right of any party to apply to the Court in respect of issues relating to who the trustees are, should be or could in future be, the Court declares that the land comprising the five lots described in Folio Identifiers 1/996302, 3/60442, 1/34634, 22/71147 and 1/18115 ('the Land') is held upon charitable trust by the trustees (being the plaintiff and the defendants) in the terms stated in Schedule One hereto.
Without prejudice to any right of any party to apply to the Court in respect of issues relating to who the trustees are, should be or could in future be, pursuant to section 81 of the Trustee Act 1925, the Court orders that the trustee or trustees of the Land shall - on the terms, and subject to the provisions, stated in clause 2 of Schedule Two hereto - have general power as stated in clause 1 of Schedule Two hereto.
The Court grants leave to the parties to apply for any consequential directions or costs. Schedule One Whereas the Land was progressively acquired in 1897 and subsequently, and whereas upon the Land were built a temple dedicated to the worship and reverence (by people of several religions that are or were practised in the Sun Ning, Sun Hay, Hoy Ping and Ying Ping districts of the Guandong province in China ['the Sze Yup area']) of Kwan Ti ('the Principal Temple') and two adjacent temples, the Land (including as applicable any buildings on or improvements to it) shall be held on the following terms:
The Land shall principally be used as the location of the Principal Temple.
The trustee or trustees (hereinafter called 'the Trustee') may renovate or alter or demolish and rebuild (in similar or different form) the Principal Temple, and the said adjacent temples, provided that the results are not such as would detract from the Principal Temple's status as the principal temple on the Land.
The Land may (in the discretion of the Trustee) be used as the location of the said adjacent temples and for such other purposes (including being the location of buildings and other improvements) as the Trustee shall determine: (a) will not detract from the principal use of the land as the location of the Principal Temple; and (b) will serve one or more of the following purposes: (i) being the location of a temple (whether or not affixed to the Land); (ii) being the location of a cultural centre (whether or not affixed to the Land) for the use of members of the New South Wales Sze Yup Community (being people who were born in the Sze Yup area and are now resident in New South Wales, people who are both descended from people born in the Sze Yup area and are now resident in New South Wales, and people who have joined the New South Wales Sze Yup Community by religious affiliation, marriage, friendship or other personal connexion [regardless of their personal or family origins]), including by being a place of contact, companionship and mutual support between members of the New South Wales Sze Yup Community; (iii) providing material assistance and accommodation for travellers, new migrants and the sick; (iv) conducting celebrations and festivals that are part of or connected to any cultural or a religious practices of members of the New South Wales Sze Yup Community; (v) housing the remains of deceased persons before they are taken to China for permanent burial or providing permanent memorials for deceased persons; (vi) keeping items used for or in connexion with the foregoing purposes; (vii) facilitating the maintenance of the Land and any items kept on it for the foregoing purposes; and (viii) facilitating the use of the Land for the foregoing purposes.
The Land shall be used pursuant to arrangements determined from time to time by the Trustee in accordance with the following requirements, authorities and limitations: (1) All use of the Land shall be in accordance with and subject to law and equity. (2) The Principal Temple shall be used for the worship or reverence of Kwan Ti in accordance with the practices, usages and customs of any religion that are practices, usages and customs that are from time to time, or were in or have been since 1897, practised: (a) in the Sze Yup area, or (b) by the New South Wales Sze Yup Community. (3) The Trustee may require the payment of fees for the use of the Land or any temple thereon, being fees consistent with the practices, usages and customs pertaining to temples in the Sze Yup area or by the New South Wales Sze Yup Community in or since 1897. (4) In so far as the Trustee ascertains that the said practices, usages and customs have changed over time or have diverged between the Sze Yup area and the New South Wales Sze Yup Community, the Trustee shall make arrangements for the use of the different temples, or of the same temple at different times or simultaneously, to accommodate all practices, usages and customs that the Trustee ascertains people wish to pursue in accordance with this trust. (5) Insofar as the resources of the trust allow and subject to the proper needs of maintenance and security of the Land, and in any event for not less than seven hours each week (unless the safety of persons requires the temporary closure of the Land or part thereof), the Trustee shall ensure that the Land (not, however, including all buildings and other improvements) and the Principal Temple are open to the public for as long and often as reasonably practical, provided that the Trustee or the Trustee's appointee may require any person to leave or not enter the Land or any part thereof if the person's presence or behaviour is or would be inconsistent with the use and enjoyment of the Land in accordance with this trust. (6) In the discharge of the Trustee's functions (including when ascertaining what were, have been or are relevant practices, usages and customs), the Trustee shall: (a) make such inquiries as the Trustee considers necessary or desirable to ascertain any relevant opinions held by the members of the New South Wales Sze Yup Community; and (b) give the consideration that the Trustee considers appropriate to any relevant opinions expressed to the Trustee by any person or body who or that the Trustee is satisfied is a representative of a significant part of the New South Wales Sze Yup Community (which satisfaction shall not be unreasonably withheld). (7) The Trustee shall not enter into any arrangement pursuant to which any profit, payment, remuneration or benefit is derived by: (a) the Trustee (or if there is more than one trustee - either or any of the trustees), (b) any relative of any trustee, (c) any related entity or subsidiary of any trustee, or (d) any entity owned, managed or controlled by any trustee or relative of a trustee from the Land, the Other Property or any other asset or income of the trust, except: (e) to compensate the trustee, relative, or entity - on terms better for the trust than otherwise available and for not more than fair value - for goods provided or services rendered in pursuit of the purposes stated in clause 3 of Schedule One; or (f) in so far as the trustee or relative may wish to engage in worship or reverence or cultural or other activities - to do so on the same terms as any member of the New South Wales Sze Yup Community.
The Land shall not be sold or mortgaged, except: (a) in the case of a sale - for the purpose of applying the proceeds of sale to the acquisition of other land in the County of Cumberland, such land to be held on the same terms as stated above; (b) in the case of a mortgage - except to raise funds for the purposes stated above (and in the event of any mortgagee selling the Land, the proceeds received by the mortgagor shall be held for the purpose of acquiring land to be held on the terms stated above); and (c) in either case - without seeking judicial advice from the Supreme Court obtained in proceedings in which the Court is advised of such information as the Trustee has obtained about the relevant opinions of members of the New South Wales Sze Yup Community. Schedule Two
Without limitation of any powers conferred by the Trustee Act 1925, the trustee or trustees of the Land (hereinafter called 'the Trustee') shall have power generally: (a) to receive land, money and other property ('the Other Property') and to hold it upon the same terms as the Land is held, and to do so in accordance with the terms of any donation by which that other property was received (provided that those terms are not inconsistent with the application of the terms in Schedule One to the Land or the Other Property); (b) to manage the Land and the Other Property, including by promulgating rules (not inconsistent with the terms stated in Schedule One) for the use of the Land and Other Property; (c) to receive on trust other land, other money and other property, and on trust to hold, manage, use, apply, sell, charge, mortgage and otherwise deal with it for or in aid of the purposes stated in clause 3 (and subject to clause 4) of the terms stated in Schedule One, or for the purpose of raising income for those purposes, and to do so in accordance with the terms of any donation by which that other land, other money or other property was received (provided that those terms are not inconsistent with the application of the terms in Schedule One to the Land or the Other Property); (d) to conduct activities on the Land or other land held by the trust, and to use or expend any property held by the trust, in pursuit of the purposes stated in clause 3 (and subject to clause 4) of the terms stated in Schedule One, including activities in pursuit of raising money to be held by the trust or spent in pursuit of the said purposes (provided that those activities are not inconsistent with the application of the terms in Schedule One to the Land and the Other Property); and (e) to employ or otherwise retain a person or persons or business or businesses: (i) to manage and maintain the Land, the Other Property and any other property held by the trust; and (ii) to manage the activities undertaken on the Land or other land held by the trust.
The Trustee: (a) shall in the discharges of the Trustee's functions (including when ascertaining what were, have been or are relevant practices, usages and customs): (i) make such inquiries as the Trustee considers necessary or desirable to ascertain any relevant opinions held by the members of the New South Wales Sze Yup Community; and (ii) give the consideration that the Trustee considers appropriate to any relevant opinions expressed to the Trustee by any person or body who or that the Trustee is satisfied is a representative of a significant part of the New South Wales Sze Yup Community (which satisfaction shall not be unreasonably withheld); (b) shall keep accounts of the assets, liabilities, income and expenditure of the trust and: (i) the accounts shall be maintained according to the Australian Accounting Standards from time to time published by the Australian Accounting Standards Board, and (ii) the accounts shall (within a year of the end of each financial year) be published on an Internet website that the Trustee has established in respect of the Land and that is accessible by the public; (c) shall not allow the trust to incur debts that cannot be met without selling or mortgaging the Land or the Other Property; (d) shall not enter into any arrangement pursuant to which any profit, payment, remuneration or benefit is derived by: (i) the Trustee (or if there is more than one trustee - either or any of the trustees), (ii) any relative of any trustee, (iii) any related entity or subsidiary of any trustee, or (iv) any entity owned, managed or controlled by any trustee or relative of a trustee from the Land, the Other Property or any other asset or income of the trust, except: (v) to compensate the trustee, relative, or entity - on terms better for the trust than otherwise available and for not more than fair value - for goods provided or services rendered in pursuit of the purposes stated in clause 3 of Schedule One; or (vi) in so far as the trustee or relative may wish to engage in worship or reverence or cultural or other activities - to do so on the same terms as any member of the New South Wales Sze Yup Community; and (e) without derogating from any power of the Trustee to delegate, if there is more than one trustee then decisions in the administration of the trust must be made by: (i) written resolution endorsed in writing by all the trustees; (ii) written resolution endorsed in writing by a majority of trustees, the proposed resolution having been sent to each trustee's nominated electronic or other address for the purpose and either: (A) all trustees have in writing acknowledged (including, without limitation, by way of voting on the resolution) receipt of the notice; or (B) five days have elapsed between the sending of the notice and the adoption of the resolution; (iii) resolution of a majority of the trustees passed at a meeting attended (whether in person or by telephonic, televisual or analogous electronic means) by all of the trustees (even if some of the attendees are no longer present at the time the resolution is passed - provided that not less than half the trustees remain present); or (iv) resolution approved by a majority of those present (whether in person or by telephonic, televisual or analogous electronic means) at a meeting of the trustees, provided that at the time the resolution is passed not less than half of the trustees are present and that notice of the meeting was given by written notice sent to each trustee's nominated electronic or other address for the purpose and either: (A) all trustees have in writing or by their presence at the meeting acknowledged receipt of the notice; or (B) five days have elapsed between the sending of the notice and the start of the meeting. Dated: 20 April 2018

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Judgment (3 paragraphs)

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