Eurella Community Services Inc v Attorney General for the State of NSW

[21]

f) The school was to be run by, and have an association with the Western Suburbs Branch of the Sub-Normal Children's Welfare Association, which Association has since been reconstituted as the plaintiff, but that connection was dispensable ("the plaintiff connection"). 12 The plaintiff accepts that two of these six elements are elements of any trust. The plaintiff agrees that the trust was to be used as a school to be attended by students on a daytime basis, the school element. The plaintiff also agrees that the trust's assets could be applied to other activities or purposes reasonably ancillary to or connected to its primary purposes, the ancillary purposes element. As there is no dispute about the school element and the ancillary purposes element, four issues about the purposes of the trust remain to be determined between the parties. The parties take the following contrary positions on these four issues. 13 (1) The Intellectual Disability Element - Intellectual or any Disability? The Attorney General contends for a narrower definition of the charitable purpose of the trust, contending that the children who could be educated using the Eurella House property should be children with an intellectual disability. The plaintiff contends for a broader definition that the children concerned may be those with intellectual and/or a physical disability. 14 (2) The Children Element - 5 -18 Years Old or Any Age? The Attorney General's contention is that it is part of the definition of the charitable purpose of the trust that the uses of the property be as the Attorney General says "focused on or directed primarily at" children aged 5-18 years although not excluding other age groups. The plaintiff's contention is that the trust property can be applied to cater for people of any age such that indeed it might for example be used for no one aged from 5 to 18. 15 (3) The Residency Element - Focus on the Inner West or No Residency Requirement? The plaintiff disputes that there is a residency element in the users of the trust asset, Eurella House. The Attorney General's case on the contrary is that it is part of the definition of the charitable purpose of the trust that the property's uses be focused upon and primarily directed to the benefit of residents of the Ashfield, Burwood, Concord and Strathfield municipalities or their successors "the inner west" although not excluding people from other areas. 16 (4) The Plaintiff Connection - Plaintiff's Role Dispensable or Not? The plaintiff contends the definition of its charitable purposes required the trust to be administered by or connected to the plaintiff. The Attorney General contends that connection was dispensable.

[47]

27 Branch members located a suitable property, Eurella House, in time for a Committee member, Mr Davis to report on it to a Branch meeting held on 8 June 1953. On 13 June 1953 contracts for the purchase of the property were exchanged with Messrs Hadley and Davis as the purchasers "for and on behalf of the Sub Normal Children's Welfare Association Western Suburbs Branch". The Branch paid the deposit of £25. The Branch committee resolved to inspect the property. Mr Hadley sought a loan from head office of the Association to assist in the purchase. His request was refused. The Branch moved quickly on the purchase. The Branch committee convened an extraordinary general Branch meeting on 22 June 1953 to endorse the committee's action in purchasing the property. This same extraordinary general meeting appointed Mr Hadley and Mr Davis as trustees for the purchase, as the Branch was an incorporated Association. The meeting also resolved to draw a cheque for £55 to cover stamp duty on the purchase of the property. The same meeting also decided to involve a local Rotary Club as it looked like a fundraising appeal would be necessary. Rotary members agreed to give their assistance to help fund the purchase of permanent premises. Rotary took responsibility for conducting a fundraising appeal aimed at the businesspeople of the district as is recorded in the Branch's minutes. 28 The purchase of Eurella House was completed on 7 August 1953. Mr Hadley and Mr Davis were the registered proprietors. The property was mortgaged to the ANZ Bank. There is no direct evidence as to the source of the money paid to the vendor on settlement. It is likely that the balance of purchase price was borrowed until it could be raised by the public appeal and the mortgage discharged. The Combined Mayoral Appeal did not close until October 1953 when funds would have become available to pay down the ANZ Bank mortgage. 29 The Branch's income and expenditure account for the year ended 31 December 1953 discloses an entry for the purchase of the Eurella House property for £5,581 together with entries for the purchase of furniture and equipment, legal costs on the purchase and maintenance and repairs to the property. Since the purchase of Eurella House the Branch has maintained the property at its own expense. 30 Whether it was organised by the Branch itself or by Rotary is unclear but the idea of Combined Mayoral Appeal within the municipalities of Burwood, Strathfield and Concord emerged the same month. Branch members had a conference with the three Councils on 18 June 1953 to discuss raising money to buy this property. The expressed need was to raise the sum of £6,000. If it did not generate the idea of a public appeal, this conference on 18 June 1953 confirmed the idea of a public appeal to achieve this money target. Representatives of the Association and Rotary were also present at this conference. The objects of the appeal were described in many different local print media of the time. These various descriptions often included the description that the appeal was to purchase the building and to provide "suitable education facilities for those subnormal children not at present accepted in departmental schools."

[83]

The June 1958 Deed 39 On 11 June 1958 the leaders of the project had the foresight to create a trust deed to record trusts on which Eurella House was held. The June 1958 Deed provided as follows: " THIS TRUST DEED made the eleventh day of One thousand nine hundred and fifty eight B E T W E E N ERIC BLAND HADLEY OF 8 Coventry Street Homebush in the state of New South Wales Civil Servant and GEORGE LEWIS DAVIS of 91 Burwood Road Concord in the said State Linotype Operator (Hereinafter called the "Original Trustees") of the first part AND FREDERICK JAMES PROWSE Mayor of the Municipality of Burwood in the said State the said ERIC BLAND HADLEY and the said GEORGE LEWIS DAVIS (hereinafter called the "Trustees") of the second Part AND THE WESTERN SUBURBS BRANCH OF THE SUB-NORMAL CHILDREN'S WELFARE ASSOCIATION (which said Association is a Company Limited by Guarantee duly incorporated under the Companies Act 1936-1955 and is hereinafter referred to as the "Association") the COUNCILS OF THE MUNICIPALITIES OF ASHFIELD BURWOOD CONCORD and STRATHFIELD and the ROTARY CLUB OF BURWOOD (hereinafter called the "Founders") of the third part WHEREAS the land and hereditaments more fully described in the Schedule hereunderwritten as "Eurella House" [address not published] Burwood in the said State (hereinafter called the "Home") were originally purchased with moneys raised by the Founders for the purpose of establishing a home or school for sub-normal children to be managed and administered by the said Western Suburbs Branch of the Association AND WHEREAS the original Trustees are now and have been at all relevant times the Trustees of the said Branch and have been so appointed in accordance with its rules and pursuant to the Articles of Association and by-laws of the Association AND WHEREAS the Contract for purchase of the Home was dated the Thirteenth day of June One thousand nine hundred and fifty three and was signed by the original Trustees as purchasers "for and on behalf of The Sub-Normal Children's Welfare Association Western Suburbs Branch" AND WHEREAS the Home was by Memorandum of Transfer dated the seventh day of August One thousand nine hundred and fifty three transferred into the names of the original Trustees and is held by them subject to a Mortgage Registered No. F 940752 in favour of the Australian & New Zealand Bank Ltd. NOW in consideration of the premises IT IS HEREBY AGREED AND DECLARED by and between the parties hereto AND THIS DEED WITNESSETH as follows: -

[98]

During the whole of its existence the two major anxieties of branch members, who are almost entirely parents of children attending, have been their inability to accommodate all the children seeking admission and the cost of running the school and maintaining the building, despite very considerable voluntary work by members." 44 The Ashfield, Burwood, Concord and Strathfield councils were re-enlisted in another fundraising appeal. The Mayor of Concord made an appeal for financial assistance and Ashfield Council approved a donation of £500. In a newspaper article from the time Alderman Spillane, the Mayor of Ashfield was quoted as noting "a growing list of children unable to be assisted because there is a lack of classroom and playground accommodation" at Eurella House. Alderman Spillane, who had been involved in the original appeal in 1953 said that "Eurella House has been catering for retarded children for the past 13 years". He explained the object of this second appeal was to extend the facilities at Eurella House " so that additional children may be admitted and those at present attending may receive additional help in several much-needed directions." The Present Time 45 The passage of time changed the nature of the operations at Eurella House. By the early 1980s Eurella House had stopped functioning as a school for sub-normal children of school age. The two main programs now run by the plaintiff on the property are an early intervention program and day programs. These various programs require a little explanation. This description is drawn closely from the evidence of Mr Sims. There was no cross examination on this evidence. I accept it as correct. 46 The change at Eurella House away from a school for sub-normal children of usual school age occurred as a result of the passage of the Anti Discrimination Act 1977 (NSW). After the passage of that Act the NSW Department of Education commenced what was called an Assumption of Responsibility Program, which took over from many organisations such as Eurella House the responsibility for educating school-aged children with significant levels of disability. The process of the Department assuming responsibility took approximately two years from May 1983 through to May 1985. At the end of that two-year period Eurella House provided no more education to school-aged children. The service previously provided by Eurella became known as the Lucas Gardens Special School located in Queens Road, Five Dock.

[104]

52 Mr Sims' evidence, which I accept, is that Eurella does not currently provide services to people with only physical disabilities. Charitable Trust or Held Absolutely? 53 The first question for determination is whether the plaintiff holds Eurella House absolutely or on a charitable trust. 54 The plaintiff emphasises a number of factual matters in support of its argument that it holds Eurella House absolutely. First it submits that the property was purchased with a deposit from the Branch. The purchaser was the Branch. The trustees were referred to on the purchase only because an unincorporated Association could not hold the property in its own name. Secondly the plaintiff submits that the appeal for funds began sometime after contracts for the purchase were exchanged. Thirdly the appeals expressly mention that the Branch was to purchase the property. Fourthly there is no reference to any trust in the appeals and the creation of a charitable trust requires intention. Finally to be tax-deductible, gifts must have been made to the Branch. The Branch was, as the plaintiff is today, a public benevolent institution gifts to which were tax-deductible. The Branch could use such gifts for any purpose. The receipt of the donations is reflected in the Branch's expenditure account for the year ended 31 December 1953 showing £6152 as coming from "Donations and Gifts". 55 To answer the question posed, it is necessary to decide whether the funds raised by the appeal in 1953 were "a gift to an institution impressed with a trust for the application thereof to particular purposes" or " an absolute gift to such an institution as a result for instance of appeal by the institution for funds based on its need for moneys in order to carry out a particular project or purpose": Attorney-General for the State of Queensland v The Corporation of the Lesser Chapter of the Cathedral Church of Brisbane (1976) 136 CLR 353, per Jacobs J at 371. Both sides put submissions about the application of Jacobs J's reasoning in the Brisbane Cathedral Case to the present proceedings. The full passage from the Brisbane Cathedral Case follows. The passage is best understood by noting that the rebuilding of St Martin's Hospital was said to be the relevant charitable purpose and the defendant corporation was the institution that received the funds from the public appeal. "The questions which arise are first, whether St Martin's Hospital was a separate charity, and, secondly, if this question be answered in the affirmative, whether the lands were sold as alleged or were otherwise appropriated to the purposes of St Martin's Hospital, and, if so, the consequences thereof.

[108]

A further distinction needs to be borne in mind. A trust to a charitable institution such as a church of money or property for the improvement of the fabric of the church or some other purpose will in many instances be fully performed once the moneys have been so expended. There is no separate continuing trust of the improvements. The trustees of that property can deal with it in accordance with their powers appertaining to that property. However, where the purpose of the appeal is itself charitable and particularly where the purpose is identifiably distinct from a particular need of the institution which makes the appeal, then the moneys raised and the product thereof will be impressed with a continuing charitable trust for the purposes for which the moneys are so raised and the trust will be enforceable at the suit of the Attorney-General." 56 In my view the correct characterisation of the funds raised on the appeal for the acquisition of Eurella House is that the funds were a gift to the Branch impressed with a trust for its application to particular charitable purposes namely the acquisition and operation of Eurella House as a school for sub-normal and retarded children. The 1953 appeal funds were not raised as an absolute gift to the Branch based on its need for moneys to carry out a particular project. There are several reasons for this conclusion. 57 First, the evidence from the newspaper articles of the time as to what the donors were told strongly focuses the fund raising on the charitable purpose of purchasing and establishing a school at the Eurella House site. It is true, as the plaintiff submits, that many of the newspaper articles do refer to the plaintiff's acquisition of the site but read as a whole the material does not focus upon the Branch itself as the objective of the donations being sought. The only role the Branch is seen to play in the descriptive appeal material is as the vehicle for the implementation of the compelling purpose of setting up the school. There are multiple references in this material to "establishing the project", " establishing a centre" , that the funds were needed "for the purchase of the school" without direct reference to the Branch. The newspaper articles, recording no doubt what was being said to induce the donations, are not pitched to emphasise the Branch's need for funds. Rather they are pitched to emphasise the community's current need for this project to be fulfilled. The described role of the Branch is merely as the instrument by which the project will be fulfilled. Many of the references to the Branch merely give context to explain the means through which the purpose will be achieved. Jacobs J says in the Cathedral Church of Brisbane Case at 371 "if the purpose of the gift is a charitable purpose, the charitable purpose will more likely than not impress the subject matter of the gift with the charitable trust". In my view the charitable purpose of these 1953 appeal funds is readily discernible in exactly the place that one would expect to find it, in the surviving record of the acts of persuasion that elicited the donations to the appeal. It is true, as the plaintiff says that the mere fact that funds were garnered by public fund raising does not mean that they are impressed with a trust. Here the Court does not just look to the mere fact of public fund raising, but rather to the content of what was said to the donors. 58 Second, the appeal had a public character that went well beyond the single institution represented by the Branch. There was a combined Mayoral Appeal. Rotary were also involved. The fact of the Mayors were so readily asked and so quickly responded in a way that appeared to dominate the fund raising effort, demonstrates the public character of the appeal beyond one institution such as the Branch. The prominent role that these public authorities took makes it very difficult to characterise the appeal as "an appeal by the institution for funds based on its need for moneys in order to carry out a particular project or purpose": (emphasis added) per Jacobs J in the Cathedral Church of Brisbane Case at 371. This was not just an appeal by the Branch. The plaintiff indirectly recognises this difficulty and in its submissions skilfully attempts to characterise Rotary and the Councils as agents for the Branch. However that is not how the contemporary materials appear. In fact very little of the funds raised were raised directly by Eurella House auxiliaries. 59 Third, whatever the precise legal status of the 1958 Deed, it is evidence created within five years of the 1953 appeal as to the intentions of all involved in the fund raising in 1953. The trustees of the 1958 Deed had been involved in the events of 1953 and are unlikely to have acted inconsistently with their fundraising efforts five years earlier. I agree with the Attorney-General's submission that in the 1958 Deed one finds expression of a charitable purpose not a trust for the benefit of the Branch itself. The 1958 Deed recites the fact that the money used to buy the property was raised for a purpose rather than for an organisation such as the Branch. The 1958 Deed recites that the 1953 intention was that the property was to be managed and administered by the Branch but does not say that the Branch was to be the owner or beneficiary of the property. The 1958 Deed notes that the trustees had been both trustees of the branch and of the property thereby distinguishing their roles and distinguishing the charitable purpose from the charitable organisation. For the future the deed also makes it plain that the property was being held in perpetuity for a particular purpose. The property is not being held subject to the usual broad discretions vested in a beneficial owner. The property was always to be used for the purpose stated. Upon any failure of the trust, the property was not to revert to the Branch. It was to be given to a charitable or benevolent organisation. 60 The Attorney-General seeks to rely upon a passage from Jacobs J's judgment in the Cathedral Church of Brisbane Case at 372 that the moneys raised and the product thereof will be impressed with a continuing charitable trust for the purposes for which the moneys are so raised "particularly where the purpose is identifiably distinct from a particular need of the institution which makes the appeal". The Attorney General argues that the Association and the Branch had many activities and objectives only one of which was Eurella House and its school. It is further argued that there is therefore a clear distinction between the Branch and Eurella House and therefore a distinction between money donated for the purposes of buying the property and money donated to the Branch. The plaintiff has blunted this particular argument by drawing attention to the distinction between the Association and the Branch and pointing out that the Branch conducted very little activity other than the school at Eurella House. 61 The plaintiff's submission that the property was purchased with a deposit from the Branch failed to account for how little the Branch actually contributed compared with the support from the public appeal. Even though the appeal began after the exchange of contracts that does not strengthen the inference that the fundraising was for the Branch. The lack of reference to any trust in the appeal materials is not remarkable. Donors gave money directly to the Branch to gain a tax deduction but that is not an answer to the Attorney General's argument that when that money was received it was already impressed with a trust. Although the funds raised were used to repay the ANZ bank loan the stated purpose of the fundraising was more than just paying off this bank loan. 62 I conclude therefore that the funds raised for the purchase of Eurella House were impressed with a charitable trust. 63 It is now necessary to decide the terms of the charitable trust on which the plaintiff holds Eurella House. The parties are in dispute about the four elements of the purpose of the trust identified earlier in these reasons, the intellectual disability element, the children element, the residency element and the plaintiff connection element. Intellectual Disability Element 64 The plaintiff accepts in its submissions that students with intellectual disabilities were included in the purpose of any trust created by the 1953 fundraising but argues that the purpose was described as being for students who were "retarded" or "sub-normal" an expression that included merely physical rather than intellectual disability.

[133]

A word of warning is necessary about these investigations lest they should raise unfounded optimism. They were carried out on selected groups and only show what is within the power of some subnormal children and adults, who have no gross physical handicap, are of stable personality and who have had the benefit of good home conditions and good training. We do not know, moreover, whether they represented all types of subnormality - whether, for instance, they included any Mongol children. 1 [p147 fn 1 There is also some most encouraging information on successful training of subnormal adolescents in the following numbers of Mental Health (National Association for Mental Health, London): Autumn 1942 : Agricultural Hostels for Defectives , Central Association for Mental Welfare, Autumn 1952 : The Education and Training of Mental Defectives at Darenth Park , J. K. Collies Laing, Autumn 1954 : A Rehabilitation Programme for Certified Mental Defectives , A. D. B. Clarke and A. M. Clarke (Psychological Department of Manor Hospital, Epsom.]" [pp144-147] 73 The plaintiff sought to answer the Attorney General's argument that caring for children with an intellectual disability is an element of the purpose of this charitable trust by tendering a series of photographs showing students at the school who only appeared to have physical disabilities. The difficulty with this approach is that it was very difficult to work out whether the subjects of the various photographs did not have an intellectual disability as well as their demonstrated physical disability. This kind of response from the plaintiff was ultimately inconclusive. All that it really showed was that children with physical disabilities were often included in the early work of Eurella House. 74 The other contemporary evidence shows the objects of the Association were clearly connected to mental rather than physical disability. The Branch's prior names, the Psycho Care Society and the Society for the Welfare of Mental Deficients were wholly consistent with an interest in support for children with intellectual rather physical disabilities. The Branch's affiliation with the Association confirms the consistency of its own objects with those of the Association. The origins of Eurella House were of students who had intellectual disabilities and whose parents wished to save them from classification for institutionalised psychiatric care. 75 Thus I conclude that, as contended for by the Attorney General the charitable purpose covers persons with an intellectual disability whether or not they also had a physical disability. But it does not cover students with only a physical disability and no intellectual disability. The Children Element 76 The Attorney-General argues that the focus of the school was to provide for children aged approximately 5 to 18, although it could also cater for other ages. The plaintiff contends that the trust extends to children of all ages who by reason of disability were like children who never grew up. 77 The evidence does not support the Attorney-General's contention that Eurella House should maintain a focus for children aged approximately 5 to 18, namely children of school age. There are far too many evidentiary indicators that children both younger and older than this were an integral part of the school's activities right from the beginning. But more importantly, no such restriction appears in the appeal promotion or the 1958 Deed. I find that the plaintiff is correct that the trust charitable purpose extends to children of all ages for the following reasons. Although the appeal promoters stated that the fundraising was "for the purpose of a school and hostel the children in the western suburbs" it cannot be inferred from such statements that the funds were raised with the central focus on serving the needs of children of school age (of 5 to 18 years). This is for at least two reasons. The first is that the purpose for which the appeal is promoted includes not just children at "school" but children in a "hostel". No natural age restriction is implied by the provision of hostel accommodation. The same duality appears in the 1958 Deed itself in which the trustees agree that they will hold Eurella House "in perpetuity as and for a home and for a school for sub-normal children": clause 2. The 1958 Deed required that the home shall at all times be used for "the care, education, treatment, maintenance, benefit and welfare of sub-normal or mentally handicapped children". The expression of purpose here extends sufficiently beyond the borders of conventional schooling as to be incompatible with the provision of services principally to 5 to 18 year olds. 78 Second, the word "children" in the composite expression "sub-normal children" in the early 1950s was apt to embrace persons well beyond the age of 21. The idea that people described as "children" must be a class of persons under the age of 18 is not justified by the evidence in this case. The register of members of the Branch in 1953 identifies seven persons with disabilities over the age of 18 years. The enrolment record shows specific instances of enrolments of new "children" at Eurella House aged 21, 24, 27 and 44 years. For example in July 1959 there were 48 children at Eurella House of whom 31 were over 16 years. An early photograph of the property displays a sign saying "School for Retarded Children of All Ages". A directory of facilities issued by the New South Wales Council for the Mentally Handicapped in 1966 described the facilities at Eurella House as, "the minimum age for attendance is four years with no upper age limit". That general description is consistent with the enrolment records. A newspaper article in 1964 described Eurella House as being a school for retarded children with boys and girls aged 5 to 35 years. 79 Ald. Shrimpton, the Mayor of Concord publicly described Eurella House as "a home that can be school, hostel and recreation centre, where mothers can leave their children in competent hands knowing they are living a life as close to normal as is possible for them to live". Ald. Shrimpton is here using the expression "children" for the purposes of the appeal in different terms to the Attorney-General's argument. The appeal literature is consistent with the view that "children" means those who must be supervised at all times by parents or someone in the place of parents. It is not age specific or age focused. In this area of discourse one is called a child if one cannot look after oneself. 80 Finally, there are many photographs tendered in evidence clearly showing persons over the age of 21 in the Eurella House student body. 81 It is true as the Attorney-General submits that some of the appeal literature refers to benefits to "small children" and "young girls and boys". But such expressions are certainly not used consistently.

[134]

The Residency Element 82 The Attorney-General argues that the school was defined to focus on serving the municipalities of Burwood, Concord, Ashfield and Strathfield or their successor local government entities such as Canada Bay or the residents of those local government areas. The plaintiff disagrees that the trust was limited by a formal restriction on serving those particular suburbs. 83 The Attorney-General's contention is that the inner western suburbs of Ashfield, Burwood, Concord and Strathfield are "the geographical focus of the charitable purpose and it is part of the terms of the charitable trust that the property be used primarily for "intellectually disabled children living in (the inner west)". There are a number of difficulties with the Attorney-General's arguments here. The first difficulty is one of definition, what does the Attorney-General's statement of the residency qualification really mean? The second difficulty is attempting to justify such a restriction based upon the available evidence. I will deal with each of these in turn. 84 The Attorney-General's statement of the Residency Element is too diffuse to do any useful work in relation to this trust. It is difficult to know when the trust would pass or fail the Residency Element so defined. If it is part of the terms of the charitable trust that the property "be used primarily for" intellectually disabled children that criterion could be satisfied by any number of different regimes giving: preference to local students; excluding all children not from the inner west; excluding children not from the inner west so that the overall numbers of inner west children do not fall below 50% of all students or, at all times maintaining a policy of giving first preference to children from the inner west. All of these possibilities seem compatible with the notion that the property "be used primarily for" children in the inner west. There is no easy way of choosing among them. The vagueness of this concept attracts the conclusion that there is no Residency Element in the charitable purposes for Eurella House. To the extent there is a Residency Element it is probably satisfied merely by the Eurella House property being in Burwood which makes it more naturally attractive to children in the inner west and their parents. 85 There is very little in the evidence which would support the idea that there should be any restriction upon the residency of children using Eurella House over and above the existence of the trust property in Burwood. Merely because the Branch was involved in leading the appeals in 1953; that the Mayors of Ashfield, Burwood, Concord and Strathfield were involved; that the Mayor of Ashfield thought the facility would be "for children in the western suburbs" would not now justify a requirement that a particular minimum proportion of the students should come from the inner western suburbs. No such requirement appears anywhere in the trust deed or the public statements made during the public appeal in 1953. The Dispensability of the Plaintiff Connection 86 The Attorney-General submits that the school was to be run by and have association with the plaintiff although that connection was dispensable. The plaintiff accepts that its involvement was a core element of the school's identity but disagrees that its connection with the school was dispensable. 87 The close connection between the Branch (now the plaintiff) and the operation of Eurella House was created by the very fabric of the appeal in 1953. As Mr Fred Jackson's history of the Branch declares, the connection started with the Branch committee deciding to place a holding deposit on Eurella House which Mr Jackson describes as "almost a crazy gesture, seeing we had no money, only faith and a challenge to help those less fortunate than ourselves." The actual connection is the product of that original decision and the commitment of successive committees of the Branch and the plaintiff to continue to operate Eurella House. Although there is a connection, the hypothetical question whether it is dispensable is not one that the Court has to decide in the absence of an application to separate the plaintiff from the operations of the trust. The Attorney-General has invited the Court not to decide this question and that is the course that I will take. 88 Although this question does not have to be decided two observations about it are appropriate. 89 First, the current attempt of the parties to frame this question as an element of the charitable purposes of this trust is not sound. Who is or is not the administrator of the trust cannot readily be embedded into the definition of the charitable purpose. The trustee, and those that the trustee employs, are always able to be removed to protect charitable property or because of a risk associated with some incapacity of the trustee: Charitable Trusts Act 1993 (NSW) ss 7 and 8. All charitable trusts are trusts for purposes, not persons: BSH Holdings Pty Ltd v Commissioner of State Revenue (2000) 2 VR 454 at [9]. The parties' approach seems inconsistent with the idea that a charitable trust is a trust for purposes. 90 Second, the plaintiff points to the recitals in the 1958 Deed that the property was purchased with funds on the basis it was to be managed and administered by the Branch. All the 1958 Deed does is to affirm who the trustees are for the time being. The 1958 Deed provides no support for the plaintiff's position on this question. Clause 19 of the Deed only places the management of Eurella House with the Branch "until otherwise determined by the trustees". Conclusions and Orders 91 I have found that the plaintiff holds Eurella House on a charitable trust. I agree with the Attorney General's submission that the issue for present consideration is not whether the trust has "failed" but whether the original purposes of the charitable trust, wholly or in part, have since they were laid down ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust: Charitable Trusts Act s 9. This is decided by contrasting my findings as to the purposes of this charitable trust with the evidence as to the plaintiff's current conduct of operations at Eurella House.

Eurella Community Services Inc v Attorney General for the State of NSW - [2010] NSWSC 566 - NSWSC 2009 case summary — Zoe

At a glance

Court

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Before

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Judgment (139 paragraphs)

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Legislation Cited (5)

Cases Cited (2)

Cited By (2)