That is upon the understanding that the proposed beneficiary is now represented by the incorporated association that is the sixth defendant.
Whether The Trust is a Valid Charitable Trust
92 In my view the trust is a valid trust for the purposes of the Macedonian Orthodox Religion, although limited to the use of the subject property as a property for a church of that Religion and ancillary purposes. As I have already said, I take the view that the gift was a gift for that religious purpose and not a gift to an unincorporated association that conferred any beneficial estate or interest in the property: the only right of the unincorporated association was its entitlement to be the body permitted by the trustee to use the property for those purposes. Although there are many cases in which doubts have been cast upon whether a trust for the purposes or particular purposes of a church is bad as a charitable trust by being so wide as to extend to non-charitable purposes of the church (Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1; In re Moroney; Maguire v Reilly (1939) 39 SR(NSW) 249; McCracken v Attorney-General for Victoria [1995] 1 VR 67; and see generally G Dal Pont, Charity Law in Australia and New Zealand (2000) 154 - 157), that has not been argued in this case. No one has submitted that the ancillary purposes as defined in the deed of trust are so wide as to extend beyond charitable purposes. In my view that is the correct view. It is emphasised by the fact that the other buildings and activities must be concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion. I am therefore of the view that the trust at its inception was a valid charitable trust.
93 So far as properties other than the first property are concerned, it is my view that, as they were acquired, they became subject to a trust on the same terms as the purpose stated above in respect of the first property. The only one of the properties in respect of which there is a separate declaration of trust is the Arncliffe property. There, in my view, the "Church Trust" referred to in the Arncliffe declaration of trust upon which that property was to be held was the trust as declared in the deed of trust and set out above. In relation to the other properties, all parties have proceeded on the basis, in the absence of any separate declarations of trust, that they became subject to the same trust upon acquisition. The only ones in relation to which there can be any difficulty arising from this are the second unit and the third unit, where the legal title upon acquisition was vested, not in separate trustees, but in the Macedonian Orthodox Church St Petka, which must be taken to have been at the time the unincorporated association. However, in my view, despite some awkwardness arising from the trustee and the proposed beneficiary being identical in those cases, the second unit and the third unit became subject to the same trust as the other properties. The trust was to permit the use by itself (or itself to use) the properties for the purpose of the original trust. It could be argued that the result would be different if those units were the only properties held on the trust. However, where there is a body of property, of which they were only a small part, held upon the same trust, in my view the trust should be regarded as being identical in respect of each property. I do not see in the evidence any indication that the second unit and the third unit were to be held on different terms. Everything in the evidence points to the intention that the whole body of property should be held on the same trust.
Does the Charitable Trust Still Exist: The Effect of the Incorporation Act
94 Now that I have found that there was a valid charitable trust, which subsisted at least to the time of the incorporation of the incorporated association, the question is whether the incorporation of the incorporated association affected the subsistence of the trust. The defendants' primary argument is that on incorporation the whole of the property subject to the charitable trust vested for a legal estate in the incorporated association and that the effect of the Incorporation Act was to free it from the charitable trust, leaving it, however, subject to the provision of clause 2(2) of Schedule 2, to the effect, both before and after the 1992 amendments, that the property which vested should "not be dealt with contrary to the provisions of any trust affecting the property immediately before incorporation of the association under this Act, being provisions as to the purposes for which the property may or is required to be applied." It is to be inferred, say the defendants, that the Parliament regarded as necessary the insertion in the legislation of a provision in those terms to preserve the purposes of a pre-existing trust for purposes; that bespeaks a legislative intention that the property should be freed from the provisions of the trust itself and that the trust should no longer bind the property. The mechanism of its demise is, the argument goes, that the property was held "in trust or otherwise, for or on behalf of a former association of the incorporated association or for its objects"; property that answers that description "shall, subject to this Act and to the extent that the property was so vested or held, vest in the incorporated association"; and that vesting is of the whole legal and beneficial interest in the property. There remain limitations on its use, but those limitations are now provided by clause 2(2) and the objects of the incorporated association.
95 It should be added that it is the defendants' contention that, although the effect of the vesting is that the property is now held legally and beneficially wholly by the incorporated association, this does not mean that it is removed from the purview of the jurisdiction of the Court over charities. Mr Walker referred to cases in this regard such as In re Vernon's Will Trusts [1972] Ch 300 and Liverpool and District Hospital for Diseases of the Heart v Attorney-General [1981] Ch 193, where the Court's jurisdiction over charities was said to be available even where there could not be said to be a charitable trust, but there was a charitable purpose within the meaning of the law of charity. The situation, Mr Walker said, is therefore that the incorporated association holds the whole of the legal and beneficial interest in the property. It does not hold it upon any trust. It does, however, hold it subject to the statutory limitation contained in clause 2(2) of Schedule 2 and to be used for its objects; but being held for a purpose which is charitable within the meaning of the law of charity, it is subject to the supervision of the Court in that regard. However, the plaintiffs contest the existence of this principle. As in my view the charitable trust was not discharged or terminated by the vesting, the existence of the principle need not be considered further.
96 The primary reason why the defendants' submission should be rejected is that it is simply not tenable on the 1992 wording of the relevant provisions. In my view the effect of clause 6 of Schedule 3 is to replace with the amended clause 2 the 1984 clause 2 in respect of all incorporations since the commencement of the Act. The 1992 provisions therefore have some retrospective operation. But unless they are given, at least literally, retrospective operation, the clear stipulation that they are to apply to pre 1992 incorporations has no operation at all, which cannot have been intended. It is therefore to the 1992 provisions that attention must be given. In my view, the meaning of those provisions is reasonably clear. The interpretation contended for by the defendants is really not open upon the amended clause 2, into which the new definitions in clause 1 are subsumed, read in the context of the whole of the Incorporation Act. What is vested under the 1992 clause 2 is "the assets" of the unincorporated association. The operation of the provision in cases where the unincorporated association held, not the whole estate or title, but a limited interest only in property, is to vest only the limited interest in the incorporated association. Anything more than the limited interest could not fall within the denotation of "the assets" which were vested. I have already held that the unincorporated association had no equitable estate or interest as beneficiary in the trust property. It had only a right (which may or may not be a right of property, I do not need to analyse that at this stage) to be the entity to use the property for the charitable purpose which was the object of the trust. The legislative purpose of clause 2(2) is to confirm the preservation of trusts, not to destroy them or indicate their destruction. The charitable trust continues to subsist and to bind the property.
97 When I suggest in [96] above that the retrospective operation of the 1992 amendments may be literal only, I advert to the argument, espoused by at least the defendants and the Attorney-General, that there is no difference in effect between the 1984 and the 1992 provisions. The Explanatory Memorandum describes the relevant provision of the Amendment Act as being one for clarification and simplification. It does not state that the amendment changes the effect of the vesting provision. This also reinforces my conclusion that, even upon the 1984 clause 2, all that was intended by the Parliament to be vested in the incorporated association was the limited interest of the unincorporated association. In other words, the Parliament which in 1992 intended only clarification and simplification was proceeding on the basis that the intention of Parliament in 1984 was to produce the same result as was more clearly stated in the amended provision. The other benefit (and, indeed, strength) of this interpretation is that it means that the amendment, although it literally has retrospective operation, has no substantive effect retrospectively, in that the incidence of any previous vesting is not altered.
98 If I am right, that the 1992 provision is clear in its meaning that the charitable trust is not affected by the vesting of property in the sixth defendant, there is no need to have resort to the presumption in favour of the preservation of vested legal and equitable interests. However, to any extent that the 1992 provisions can be characterised as unclear or ambiguous, the presumption against the destruction of the existing vested interest, namely, the charitable trust, should lead the Court to adopt the interpretation which would preserve the existing vested interest. This is all the more so since the interest to be preserved is not entirely a private interest (important as the preservation of a private interest would be), but an interest, being a religious charitable trust, in respect of which there is a public interest in its preservation.
99 Even if I am wrong in my conclusion that the 1992 amendments are the applicable provisions of the Incorporation Act, and the 1984 provisions apply to the incorporation of the sixth defendant, that would not in my view change the result. Since my view is as recorded in [96], I shall not go into this in great detail. Suffice it to say that, on my view, it is quite clear that the provisions of the 1984 clause 2(1) are ambiguous in a number of ways. Some of these are referred to in [77] above. In view of its ambiguities the Court would not in my view, where the interest of the unincorporated association is limited, construe the provision to have the radical effect of vesting the whole legal and beneficial interest in the incorporated association, thereby destroying the vested interest constituted by an existing charitable trust. For that reason Mr Walker's argument on behalf of the defendants would fail even if the 1984 provisions were the relevant provisions.
100 At one stage, I tended to the view that the fee simple in the properties under the RPA was wrongly transferred to the sixth defendant by the Registrar-General, acting on an erroneous certificate. However, I have now been convinced me that this is not so. That is because Schedule 2 clause 2 in its present form, at least, can operate in two ways. First, by the direct operation of clause 2(1)(a) any beneficial interest in the property under the trust would be vested in the incorporated association. If the entitlement to use the property for the purposes of the trust falls within the definition of "assets", which I doubt, it would so vest. But, quite separately, clause 2(1)(b), if the trustees of the various pieces of property were members of the unincorporated association and held the legal titles to the property as members, then, by virtue of the definition of "former association" in clause 1, the legal titles are assets of a former association and those legal titles vest in the incorporated association by virtue of clause 2(1).
101 In my view, I should draw the inference that all the trustees held their interest in the property as members. This statement involves two propositions. The first is that the trustees were all members of the unincorporated association. The second is that their holding of the property was as members. I invited submissions as to whether it was shown that all the trustees were members. It is clear that the ten individuals name as trustees in Schedule A to this judgment were members when appointed see [30]. The evidence shows that it was the policy to select members to be trustees. It is not shown that any trustee was not a member. Nor is it shown that any trustee who was a member ceased to be a member before the vesting date, although it seems that two of the original ten may have ceased to be trustees, reducing the number to eight. Furthermore, no submission was put to me that I should find that any trustee was not a member at any relevant time. But it was submitted on behalf of the plaintiffs that the trustees could not be said to hold any property in their role as members, but only in the role of trustees. The construct obtained by inserting the words "any … members of the former association as members" into the fabric of clause 2(1)(a) is inelegant. But it appears to me to mean any property held by any members of the association not for themselves but as members, ie, for the benefit or purposes of the association. The reference is not in my view to any formal structure of holding as members. Holding as trustees for (or to permit) use by the unincorporated association for its purposes is in my view sufficient. Therefore the legal titles (but only the legal titles) in the RPA land and the first unit were vested in the incorporated association by the Incorporation Act. It is clear that the legal titles to the second unit and the third unit, which stood in the name of the association, were equally so vested. The incorporated association was correctly recorded as holding the legal titles by the Registrar-General and by the unit company.
102 As a result of the foregoing, the questions posed for my decision should be answered as follows: