Re Anzac Cottages Trust [2000] QSC 175 (16 June 2000)

(1) That the Anzac Cottages Trust (including the net proceeds of the sale of Anzac Cottage No 37) be applied cy pres.

1. That the funds of the Anzac Cottages Trust ("the Fund") be applied cy pres by paying the same to the following charitable organisations in the shares set out as follows:-

(f) The Queensland Vasey Housing Auxiliary (War Widows' Guild) ACN 009 708 810 - one half.

Subject always to the scheme contained in the following provisions of this Order.

2. The Fund be used in conjunction with the assets of the charitable organisations to construct, repair and improve rental units on the organisations' properties (including future acquired property).

3. The dwelling units built with the use of the Fund ("Anzac Units") shall be maintained by the charitable organisations as accommodation for the purposes described in paragraph 4.

4. Anzac Units shall be provided by the charitable organisations to widows or widowers and their dependent children, if any, who meet one of the following criteria ("qualified widows or widowers"):

(a) Widows or widowers, and their dependent children, if any, of persons who enlisted in Queensland and who died while on active service with the Australian Defence Forces and who are in necessitous circumstances; or

(b) Persons designated as "war widows" or "war widowers" by the Commonwealth Department of Veterans' Affairs, and their dependent children, if any, who are in necessitous circumstances.

5. Provided always that if an Anzac Unit is vacant and there is no qualified widow or widower seeking accommodation of that rental unit, the charitable organisation may rent the Unit to such other disadvantaged persons as in the sole discretion of the Trustee most closely meet the above criteria.

6. The charitable organisations referred to in paragraph 1 must:

(a) use and administer the application of the funds ordered to be applied cy pres by and through the establishment of a separate trust fund, termed and styled "Anzac Cottages Trust Fund"; and

(b) invest and apply the capital and income thereof only in accordance with the Trusts Act 1973 and this scheme or as may be ordered by a Judge of the Supreme Court of Queensland.

(3) Liberty to apply to the Public Trustee and Catherine Bell with regard to the sale of Anzac Cottage No 37.

TRUSTS AND TRUSTEES - CHARITABLE TRUSTS - CY PRES - whether the Anzac Cottages Trust ought to be applied cy pres - which cy pres scheme ought to be approved

Trusts Act 1973 (Qld), s 105

Veterans' Entitlements Act 1986 (Cth), s 5E, s 5F

Attorney-General (NSW) v Perpetual Trustee Co Ltd [1940] HCA 12; (1940) 63 CLR 209, considered

Barby v Perpetual Trustee Co (Ltd) [1937] HCA 64; (1937) 58 CLR 316, considered

Forrest v Attorney-General [1986] VicRp 22; [1986] VR 187, considered

Fowler v Geelong College Vic SC No 5594 of 1996, 13 December 1996, considered

In re Prison Charities (1873) LR 16 Eq 129, considered

In re Weir Hospital [1910] 2 Ch 124, considered

Parker v Moseley [1965] VicRp 74; [1965] VR 580, distinguished

Phillips v Roberts [1975] 2 NSWLR 207, distinguished

Re Anzac Cottages Trust OS No 1418 of 1999, 19 July 1999, applied

Re Flynn [1975] VicRp 61; [1975] VR 633, distinguished

Re Lepton's Charity [1972] Ch 276, considered

Re Peirson Memorial Trust OS No 798 of 1995, 7 December 1995, applied

Varsani v Jesani [1999] Ch 219, applied

C Wilson for the respondent (Attorney-General for the State of Queensland)

D G Mullins for the respondent (Gold Coast Legacy Club Inc)

M P Sumner-Potts for the respondent (Cairns Legacy Club Inc)

S G Durward SC for the respondent (Townsville Legacy Inc, Bundaberg Legacy Inc and Legacy Club of Ipswich Inc)

R I Lilley for the respondent (RSL War Veterans' Homes Ltd)

N M Cooke QC with M M Varitimos for the respondent (War Widows' Guild of Australia (Queensland) and The Queensland Vasey Housing Auxiliary (War Widows' Guild) ACN 009 708 810)

R D Peterson for the respondent (RAAF Veterans' Residences Trust)

P W Matthew (respondent) appeared on his own behalf for T B Sailors, Soldiers and Airmen's Association of Qld

Official Solicitor to the Public Trustee for the applicant

Crown Solicitor for the respondent (Attorney-General)

Collas Moro Ross for the respondent (Gold Coast Legacy Club Inc)

Myles Thompson Lawyers for the respondent (Cairns Legacy Club Inc)

Giudes & Elliot for the respondent (Townsville Legacy Inc, Bundaberg Legacy Inc and Legacy Club of Ipswich Inc)

Deacons Graham & James for the respondent (RSL War Veterans' Homes Ltd)

Cranston McEachern for the respondent ( War Widows' Guild of Australia (Queensland) and The Queensland Vasey Housing Auxiliary (War Widows' Guild) ACN 009 708 810)

Phillips Fox for the respondent (RAAF Veterans' Residences Trust)

P W Matthew (respondent) appeared on his own behalf for T B Sailors, Soldiers and Airmen's Association of Qld

[1] ATKINSON J: The Public Trustee seeks a declaration from the Court that the funds held in the Anzac Cottages Trust (including the net proceeds of any sale of Anzac Cottage No 37) ought to be applied cy pres and that a cy pres scheme be approved. This matter has already been the subject of an application for directions before Shepherdson J where his Honour made a number of findings to which I shall refer.

[2] The Anzac Cottages Trust was originally a sub-committee of the Queensland War Council established on 25 September 1915. The first Anzac Cottage built in Queensland was at Wynnum, opened by the Governor on 12 August 1917. Many of the Anzac Cottages constructed in Queensland were funded from profits of three of the earliest Golden Caskets.

[3] Thirty-eight cottages were built in Brisbane and most had names reflecting Anzac themes, such as Kitchener, Haig, Monash, Hopetoun and Chauvel. The second last to be built was Anzac Cottage No 37, "Straithcairn", located at 16 Quarry Road, Alderley.[1]

[4] The Anzac Cottages Trust was formally established by the Queensland War Council on 26 August 1918. The trustee of the Anzac Cottages Trust is the Public Trustee. The objects of the Trust are set out in Rule 1 which provides:

"(a) To acquire suitable areas of land, whether by gift, purchase or otherwise and to make arrangements for the erection thereon of cottages to be occupied by homeless widows or other female dependants or descendants of persons who have enlisted in Queensland for Military or Naval service with His Majesty's Forces in the present war, and have died while in such service or other persons as provided in 8(a).

(b) To obtain gifts of money and goods to be used in the furtherance of (a)."

"The Committee shall, on the termination by death or from any other cause of any tenant's occupancy of a cottage, re-let such cottage, on the terms set forth in Rules 5 and 6 hereof, to a widow or female dependant or descendant of a deceased Queensland Soldier (as described in Rule 1(a) hereof); provided that if any such person shall make application to occupy such cottage within a reasonable time after the termination of the last preceding tenancy, they may re-let such cottage to any person whom they think fit, and for such period and on such terms as they think fit."

[6] Rules 5 and 6 allowed the Public Trustee[2] to permit occupation of the cottages in the following terms:

"5. The Public Curator shall permit the homeless widow or other female dependant or a descendant of a deceased Queensland Soldier as described in Rule 1(a) hereof, who shall have been nominated by the Committee in that behalf, to occupy such one of the abovementioned cottages as the Committee may direct, so long as such occupant being a female shall remain unmarried and of good behaviour, upon condition that there shall be paid to him as trustee, either monthly or at such other intervals as he shall decide, rent at the rate of one shilling and six pence per week, and also all rates and taxes. Before entering into possession, such widow or other female dependant or descendant shall conclude with the Public Curator as trustee an agreement of lease in writing embodying all the terms in this Rule hereinbefore set forth. The moneys received as rent for such cottages shall be paid into a fund which shall be applied by the Public Curator for the maintenance in good repair of the said cottages and for the payment of all Fire Insurance premiums thereon but not on any furniture therein.

Provided that the rent payable by any such tenant other than a widow or daughter of a deceased Queensland Soldier (as described in Rule 1(a) hereof) may in the discretion of the Committee, or, if the Committee shall at any time cease to exist, of the Public Curator, be fixed, either before the tenant signs his or her lease or at any time during the tenancy after six months' notice, at a rate higher than one shilling and six pence (1/6) per week.

6. It shall be a further condition of the agreement mentioned in Rule 5 hereof, that, if any of the Children of a widow or other female dependant or descendant who so occupies a cottage marries, such child and his or her spouse shall not reside in such cottage or share the occupancy of the same with the said widow, or other female dependant or descendant except with the approval of the Committee."

[7] Rule 8(b) gave the Public Trustee the power to sell the cottages as necessary to provide for repairing or rebuilding of all such cottages.

[8] In 1960 Parliament passed the Anzac Cottages and TB Homes Act to enable the Public Trustee to sell the land on which any Anzac Cottages were built. Any payments for such land were to be made into an account entitled the "Anzac Cottages Maintenance Account".[3] However this Act was repealed by the Lands Legislation Amendment Act 1992, s 4, Schedule 2. There was accordingly no power extant under that Act[4] for the Public Trustee to sell any of the property the subject of the trust.

[9] The last tenancy of an Anzac Cottage commenced on 3 October 1978 and the last sale of an Anzac Cottage was in 1983. There is only one Anzac Cottage remaining, Anzac Cottage No 37, "Straithcairn", situated at 16 Quarry Road, Alderley. The property is now on the National Trust Register of places worthy of preservation as part of our national heritage. It has also been placed on the Heritage Register under the Queensland Heritage Act 1992. The reasons for its listing demonstrate its cultural significance:

"Straithcairn is important in demonstrating the pattern of Queensland's history, built under the Anzac Cottage Scheme to provide accommodation for the families of Queensland enlisted soldiers or sailors who died during World War I. These houses were funded with the proceeds of the Queensland lottery,[5] draws three, four and five.

Straithcairn is a rare aspect of Queensland's cultural heritage as one of the last Anzac Cottages, built under the Anzac Cottage Scheme, to be held by the Public Trustee.

Straithcairn is intact and in original condition, and as such is important in demonstrating the principal characteristics of an Anzac Cottage.

Straithcairn is of aesthetic significance, adding to the streetscape of Quarry Road.

The place has a special association with the Queensland community as evidence of the community's response of support for the families of those killed during World War I.

The place has a special association with the work of the Anzac Cottage Trust, a sub-committee of the Queensland War Council. Straithcairn also has a special association with the Queensland lottery. The Trust constructed many cottages with funds raised in Queensland lottery, draws three, four and five."

[10] The original tenant of Anzac Cottage No 37 was Mary Ann Warner. She was the widow of Private John Warner who enlisted at the age of 42 and was injured by a shell explosion at Ypres in 1917. He died in March 1920 and was buried in a war grave in Toowong. The Queensland Heritage Register reveals that the newly widowed Mrs Warner and their five children moved into the new Anzac Cottage, Straithcairn, in July 1920, and their son Jack was born soon after. Mrs Warner died at home in 1956. The Public Trustee then allowed Florence Richardson Handley, one of Mrs Warner's daughters, to become the tenant and occupant of the cottage. Mrs Handley was herself a war widow as her husband was killed in World War II and she had lived in the cottage until she died on 10 February 1998. Since then, the cottage has been vacant.

[11] Catherine Mulcahy Bell, one of the respondents to this matter, has signified her interest in occupying or purchasing the property. She is the great-granddaughter of the late Mrs Warner and a grand-niece of the late Mrs Handley. No other party to this application wishes to retain the cottage. The Public Trustee has the power to sell the cottage under s 32(1)(a) of the Trusts Act 1973. The Public Trustee has indicated that he is willing to sell the cottage to Ms Bell at a proper valuation and no party objects to that course. If there is any difficulty in the working out of that, then the Public Trustee and Ms Bell have liberty to apply to the court for further directions.

[12] The property, now the subject of the Anzac Cottages Trust, is a fund of $697,539.27 held by the Public Trustee in the Anzac Cottages Maintenance Account and Cottage No 37, which although historically and culturally significant, is a modest wooden cottage, badly in need of repair.

"the dominant purpose of the Anzac Cottages Trust was, by the acquisition of land and the building of cottages thereon to provide those cottages to be occupied by homeless widows or homeless other female dependants or homeless female descendants of persons who had enlisted in Queensland for military or naval service with His Majesty's forces in World War I and who had died while in such service."

Save for Cottage No 37, the dominant purpose of the Anzac Cottages Trust has been fulfilled. Although the dominant purpose has been fulfilled, it is not at an end nor should it be cancelled pursuant to s 38(1)(a) of the Land Act 1994. His Honour observed that the trust was at a stage where the Public Trustee was under a duty to make an application for the property, subject to the Anzac Cottages Trust, to be applied cy pres.[7]

[14] Sherpherdson J referred with approval to the definition of cy pres found in the American Restatement of the Law: Trusts (2d) s 399:

"If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor."

This is similar to the judgment of Latham CJ in Attorney-General (NSW) v Perpetual Trustee Co Ltd:[8]

"Before the cy pres doctrine can be applied it is necessary to find an expression of a general charitable intention in addition to a particular charitable intention. It must be possible to hold that, notwithstanding the failure of the particular means mentioned in the will or other instrument for the effectuation of the charitable intention, there is an expression of a general charitable intention, even though it may be impracticable to give effect to the intention by such means."

There was a general charitable intention[9] which has now become impracticable of performance because of the large number of female descendants and the difficulty in discovering all members of the group. There is no doubt in this case that the trust property ought to be the subject of a cy pres scheme.

[15] Section 105 of the Trusts Act 1973[10] gives statutory expression to the equitable doctrine of cy pres. It provides, so far as is relevant to this case:

"105.(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable trust can be altered to allow the property given or part of it to be applied cy pres shall be as follows -

(a) where the original purposes, in whole or in part -

(iii) can not be carried out according to the directions given and to the spirit of the trust;

(e) where the original purposes, in whole or in part, have, since they were laid down -

(iii) ceased to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.

(2) Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy pres, except in so far as those conditions require a failure of the original purposes.

(3) References in subsections (1) and (2) to the original purposes of a trust shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.

(4) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy pres, to secure its effective use for charity by taking steps to enable it to be so applied."

Shepherdson J held that subsections 105(1)(a)(iii) and (e)(iii) apply to these circumstances.

[16] Section 105 of the Trusts Act extends the powers of the court when dealing with a cy pres application. As White J held in Re Peirson Memorial Trust[11]:

"It is clear that s 105 preserves the essence of the previous law but in s 105(1)(e)(iii) allows a certain liberality to a court in seeking to apply trust property cy-pres where the original purposes may no longer be effected, which it may not have previously have been confident in applying."

Her Honour quoted with approval the observation made by Sir John Pennycuick VC in Re Lepton's Charity:[12]

"Subsection (1)(e)(iii) [of s 13] appears to be no more than a final writing out large of paragraph (a)(ii). The expression `spirit of the gift' may be an echo of words used in the Campden Charities case [(1881) 18 Ch 310]. It must, I think, be equivalent in meaning to the basic intention underlying the gift, that intention being ascertainable from the terms of the relevant instrument read in the light of admissible evidence."[13]

[17] As Morritt LJ, as the Vice Chancellor then was, observed in the Court of Appeal in England in Varsani v Jesani,[14] one must be careful, when reading old cases[15] and considering the applicability today of the principles they embody, to remember the narrowness of the cy pres jurisdiction which preceded these statutory amendments.

[18] Australian courts have also taken the view that equivalent statutory changes[16] have made substantive changes to the common law[17] and that one must consider earlier judgments[18] with similar circumspection.

"Now the jurisdiction to make a cy-pres scheme depends on whether the case falls within one or other of the paragraphs of section 13(1). The relevant test in this case is now whether the original purpose has ceased to provide a suitable and effective method of using the property, regard being had to the spirit of the gift."

The "spirit of the gift" is "the basic intention underlying the gift or the substance of the gift rather than the form of the words used to express it or conditions imposed to effect it."[20] The task of the court when exercising this jurisdiction was expressed by Chadwick LJ in Versani v Jesani[21] as follows:

"The need to have regard to the spirit of the gift requires the court to look beyond the original purposes as defined by the objects specified in the declaration of trust and to seek to identify the spirit in which the donors gave property upon trust for those purposes.[22]

[20] The Public Trustee has proposed two draft cy pres schemes which are similar in terms in that both propose that the fund be divided between certain Legacy clubs and the War Widows' Guild of Australia (Queensland). However one draft scheme takes the form of the fund being sent directly to those charities and the other interposes the Public Trustee as trustee of the fund. As the Public Trustee submitted, however, the latter scheme has the undesirable effect of setting up another layer of bureaucracy with associated costs which appears unnecessary in the circumstances. Both, however, have the advantage of passing the Trust property to organisations whose objects and activities closely reflect the spirit of the trust without distributing the property amongst so many organisations that its beneficial effect is dissipated. The draft scheme which does not interpose the Public Trustee as trustee of the fund, proposes that the fund be divided as to one half to the War Widows' Guild of Australia (Queensland) through the Queensland Vasey Housing Auxiliary and one tenth to each of the Legacy clubs in Queensland which provide accommodation: the Gold Coast Legacy Club Inc, Cairns Legacy Club Inc, Townsville Legacy Inc, Bundaberg Legacy Inc and Legacy Club of Ipswich Inc.

[21] In determining the appropriate scheme to give effect to the "spirit of the trust" one must examine the original trust in the light of more recent developments. As White J said in Re Peirson Memorial Trust[23] of a trust set up to establish an orphanage and training farm for poor boys:

"Not only is it increasingly impracticable to give effect to the intention of the settlers of the trusts but to confine the activities of the trust in that way leads to a surplus of income which will accumulate. I am persuaded that the `spirit of the gift' is amply satisfied by the proposed scheme. Whilst the Misses Peirson might be somewhat bewildered were they to revisit the Wide Bay District now with the eyes of the 1940s and 50s, I am persuaded that their impulse to charity would by no means have been stifled by the revelation of social disintegration amongst many of the residents of that area and its effect on young people. That, in a sense, is what they were concerned to address. Their ideals were clearly both lofty and practical and will continue to be implemented by the proposals in the new deed."

The cy pres scheme took into account social and economic change as well as the changes in public policy towards families and children in need.

[22] When one examines the Anzac Cottages Trust to give effect to its spirit, a number of social and historical changes should be taken into account. Many of these are demonstrated by the history of Anzac Cottage No 37 and its residents. It is now known that not only did soldiers and sailors die during the First World War but many died after the war as a result of war injuries, leaving needy or destitute dependants. There have subsequently been other major conflicts where Australians lost their lives in the defence of their country including another world war. The services now include the air force[24] as well as naval and military services and both men and women enlist in those services. Government provision of pensions and benefits has ameliorated to some extent the economic destitution that once followed the death of the family income earner. In order to give effect to the "spirit of the trust", those changes must be taken into account. The spirit of the trust is the acquisition of land and the building of housing to be occupied by those dependants whose spouse or parent has died in or as a result of war service in the armed services of Australia and who are in necessitous circumstances. There seems no reason not to retain the restriction that the deceased member of the armed services must have enlisted in Queensland.

[23] In this case, the Court heard submissions from a number of worthwhile organisations and charities. The question of how the Trust is to be divided between them is answered by examining their objects and activities to see which of them best meet the spirit of the Trust.

TB Sailors, Soldiers & Airmen's Association of Queensland

[24] It was accepted by the Public Trustee and by the Association at the hearing that its interests were not directly affected by this application.

[25] There are 50 Legacy clubs in Australia, the first having been formed in Melbourne in 1923. All Legacy clubs are autonomous although there is a Legacy Co-ordinating Council which ensures that all clubs abide by the Legacy Statutes. The Charter of Legacy, to which all clubs subscribe, shows how close its objectives are to the spirit of the Trust:

"The care of dependants of veterans who served their country in a war area or an operational area and who died on service or subsequently affords a field for service. Personal effort is the main essential. Safeguarding the interests of children is a service worth rendering, and their interests include their mental, moral, vocational and physical welfare. Inasmuch as these are the activities of Legacy, it is our privilege to accept the Legacy of fallen comrades."

The first Legacy club in Queensland was formed in Brisbane in 1928. In 1929, a club was formed in Ipswich; in 1933, in Cairns; in 1947, clubs were formed in Rockhampton and Toowomba; in 1948, in Townsville, Mackay, Maryborough and Bundaberg; and in 1949, a club was formed in Southport (now Gold Coast).

[26] In common with other Legacy clubs, Brisbane Legacy provides financial and other assistance to eligible widows and other dependants by providing assistance with education, health, housing, youth activities, widows' clubs and other activities. Brisbane Legacy had adopted a sensible policy of providing advice and assistance with regard to housing options, including free property inspections, cheap removals and advice on where they can obtain property finance, and advocacy services for applications for the war widow's pension, rather than itself buying or building accommodation. Unfortunately, however, this takes Brisbane Legacy outside the spirit of the trust which includes the provision of accommodation.

[27] Five Legacy clubs in Queensland have invested in and provide accommodation (other than holiday accommodation) for eligible widows: Gold Coast Legacy Club Inc, Townsville Legacy Inc, Cairns Legacy Club Inc, Bundaberg Legacy Inc and the Legacy Club of Ipswich Inc. Of these, three, being the clubs in Townsville, Bundaberg and Ipswich, have objects in respect of the provision of accommodation. Townsville Legacy Inc does not acquire the land by freehold title nor does it exclude male applicants but neither of those factors offends the spirit of the Trust.

[28] The RSL (Qld) War Veterans' Homes Limited is a company limited by guarantee which was incorporated in 1983 for the purpose of being the trustee of a trust established by the Returned Services League (Queensland Branch) as settlor. Clause 2 of the Trust Deed provides:

"The trust is established and shall be maintained exclusively for the purpose of providing board lodging nursing care maintenance and administration for the following persons that is to say:

(a) any person who has served or shall serve in any branch of the Australian Defence Forces and any person of the British Commonwealth Defence Forces which have been allied in any war or which shall be involved in any future war as an ally of the Australian Defence Forces and whose application shall be approved by the committee of the company;

(b) any person who has served or shall serve in the Merchant Navy of Marine in any such war as referred to in clause 2(a) hereof and whose application shall be approved by the committee of the company;

(c) any person who has served or shall serve in the Defence Forces or Merchant Navy of any power allied or associated with any member of the British Commonwealth Defence Forces in any war in which Australia or any member of the British Commonwealth Defence Forces has been or shall be engaged and whose application has been approved by the committee of the company;

(d) any person who has served in the Defence Forces of any country of the British Commonwealth Defence Forces or any person who has served in the Defence Forces of any country which has been allied with Australia and any member of the British Commonwealth Defence Forces in any war under the same conditions and relationships as aforesaid may at the discretion of the company make application and such application may be approved by the committee;

(e) any dependants of any persons referred to in subclauses (a), (b), (c) and (d) hereof including Legacy widows;

(g) any such deserving persons as the committee of the company may in its absolute discretion choose."

It is a large and wealthy organisation. It can be seen that its objects are much wider than the spirit of the trust, in that it also has admirable aims of providing homes to persons who have served in the defence forces of Australia or its allies. The draft scheme proposed by them is restricted in the first instance to "widows of service men who enlisted in Queensland and who died while on active service with the Australian Defence Forces". Its objects are too wide and the proposed scheme too narrow to serve the spirit of the trust. I have also taken into account that this charity is already well provided for[25] and to spread the funds of the Anzac Cottages Trust too widely would be to lessen its beneficial effect.

Royal Australian Air Force Veterans' Residences Trust

[29] The Royal Australian Air Force Veterans' Residences Trust Fund is constituted by the Royal Australian Air Force Veterans' Residences Act 1953 (Cth).[26] The purpose of the Fund is said in s 4 of the Act to be "the provision of a residence or residences in which eligible persons who are in necessitous circumstances, and, if the Trust so approves, the dependants of such eligible persons, may be accommodated or supported". "Eligible persons" are defined in s 2 as:

"(a) a former member of the Royal Australian Air Force;

(b) a former member of the Royal Australian Air Force Nursing Service;

(c) a former member of the Women's Auxiliary Australian Air Force;

(d) a widow or widower of a person referred to in paragraph (a) or (b);

(e) a widower of a person referred to in paragraph (c); or

(f) a parent of a person referred to in paragraph (a), (b) or (c), being a deceased person who was not legally married at the time of his or her death, if the parent:

(i) is a widow or widower and was, at the time of the person's appointment to, or enlistment in, the Royal Australian Air Force, the Royal Australian Air Force Nursing Service or the Women's Auxiliary Australian Air Force, as the case may be, dependent upon the person; or

(ii) has a wife who is, or a husband who is, so incapacitated as to be unable to contribute materially to the support of the parent".

As can be seen, this is both too wide and too narrow to be within the spirit of the Trust. It is too wide because it covers many more people than widows and widowers and too narrow because it applies only to the air force and not all the armed services.

War Widows' Guild of Australia (Queensland) and the Queensland Vasey Housing Auxiliary (War Widows' Guild) (ACN 009 708 810)

[30] The War Widows' Guild of Australia ("the Guild") was formed in Victoria in 1945 by Mrs Jessie Vasey CBE, the widow of Major-General George Vasey. In 1947 the War Widows' Guild of Australia (Queensland) ("the Queensland Guild") was established as an autonomous organisation. The Queensland Guild has 8,500 members, 82 of whom are widows of World War I veterans. It has 23 sub-branches throughout Queensland, including in Central and North Queensland. On 11 May 2000, a general meeting of the Queensland Guild voted in favour of a new constitution, which will enable them to incorporate under the Associations Incorporation Act 1981. Membership of the organisation is confined to war widows, war widowers and defence widows. The affidavit of the Queensland Guild's President deposes to the many activities in which the Guild engages to benefit and protect its members.

[31] The Queensland Vasey Housing Auxiliary (War Widows' Guild) (ACN 009 708 810) is a company limited by guarantee established in 1961 to service a need for accommodation for war widows. All members of the Queensland Guild are members. Its primary objective is the provision of accommodation for war widows and their children. The Auxiliary owns 13 units at Redcliffe (with 30 people on the waiting list), 56 units at New Farm (with 20 on the waiting list), 15 units at Nundah (with 8 on the waiting list), 15 at Milton (with 8 on the waiting list), 10 at Kelvin Grove (with 1 on the waiting list) and 11 at Toowong (with 7 on the waiting list). The Auxiliary charges nominal rental to the war widows using the accommodation. Many of the buildings owned by the Auxiliary are two or three storey apartment blocks. None of them presently has a lift which is a significant need given the increasing age of the residents.

[32] The War Widows' Guild has branches throughout the State, but its accommodation is confined to Brisbane and Redcliffe. By dividing the Trust fund in the manner suggested by the Public Trustee, the Court would be ensuring the use of the fund throughout Queensland which, in my view, is more in keeping with the spirit of the trust.

[33] I have made certain amendments to the scheme proposed by the Public Trustee. The payment proposed to the War Widows' Guild of Australia (Queensland) will instead, at their request, be made to the Queensland Vasey Housing Auxiliary (War Widows' Guild) ACN 009 708 810 which is a public company set up to hold land. Because of the changed composition of the armed forces, I have inserted "or widowers" after "widows" wherever it appears. I have added reference to dependent children, if any, to give effect to the spirit of the trust. I have deleted the reference to "Defence Service widow" since I can find no reference to such a term in Commonwealth legislation; whereas, the terms "war widow" and "war widower" are defined in s 5E of the Veterans' Entitlements Act 1986 (Cth). The term "dependent child" is presently defined in s 5F of the Veterans' Entitlements Act and s 5 of the Social Security Act 1991 (Cth). I have allowed the expenditure of the fund on the repair and improvement of housing in addition to construction. As the War Widows' Guild submitted, the requirement of homelessness for the eligible beneficiaries is now too stringent. It is preferable for this to be replaced by a requirement that the person be in "necessitous circumstances". Certain of the undertakings offered to the Court by the Gold Coast Legacy Club Inc offer a suitable level of protection to the trust funds once dispersed to the charitable organisation and should be incorporated in the scheme. They are found in paragraph 6 of the approved scheme.

[34] I declare that the funds held in the Anzac Cottages Trust (including the net proceeds of any sale of Anzac Cottage No 37) ought to be applied cy pres and I approve the cy pres scheme proposed by the applicant Public Trustee subject to the alterations which have been made. The approved scheme is in the following terms:

1. That the funds of the Anzac Cottages Trust ("the Fund") be applied cy pres by paying the same to the following charitable organisations in the shares set out as follows:-

(f) The Queensland Vasey Housing Auxiliary (War Widows' Guild) ACN 009 708 810 - one half.

Subject always to the scheme contained in the following provisions of this Order.

2. The Fund be used in conjunction with the assets of the charitable organisations to construct, repair and improve rental units on the organisations' properties (including future acquired property).

3. The dwelling units built with the use of the Fund ("Anzac Units") shall be maintained by the charitable organisations as accommodation for the purposes described in paragraph 4.

4. Anzac Units shall be provided by the charitable organisations to widows or widowers and their dependent children, if any, who meet one of the following criteria ("qualified widows or widowers"):

(a) Widows or widowers, and their dependent children, if any, of persons who enlisted in Queensland and who died while on active service with the Australian Defence Forces and who are in necessitous circumstances; or

(b) Persons designated as "war widows" or "war widowers" by the Commonwealth Department of Veterans' Affairs, and their dependent children, if any, who are in necessitous circumstances.

5. Provided always that if an Anzac Unit is vacant and there is no qualified widow or widower seeking accommodation of that rental unit, the charitable organisation may rent the Unit to such other disadvantaged persons as in the sole discretion of the Trustee most closely meet the above criteria.

6. The charitable organisations referred to in paragraph 1 must:

(a) use and administer the application of the funds ordered to be applied cy pres by and through the establishment of a separate trust fund, termed and styled "Anzac Cottages Trust Fund"; and

(b) invest and apply the capital and income thereof only in accordance with the Trusts Act 1973 and this scheme or as may be ordered by a Judge of the Supreme Court of Queensland.

[35] I give the Public Trustee and Ms Bell liberty to apply with regard to the sale of Anzac Cottage No 57. I shall hear submissions as to costs.

[1] Entry in the Heritage Register, File No 602064, Queensland Heritage Act 1992.

[2] The role of the Public Curator of Queensland (now known as the Public Trustee of Queensland) as manager of the tenancies of the Anzac Cottages commenced on 1 January 1919.

[3] s 6.

[4] But see s 32 of the Trusts Act 1973 referred to in [10].

[5] Known as the Golden Casket: Vagrants, Gaming, and Other Offences Act 1931, s 53.

[6] Re Anzac Cottages Trust OS No 1418 of 1999, 19 July 1999 at 19.

[8] [1940] HCA 12; (1940) 63 CLR 209 at 216-217.

[9] See Barby v Perpetual Trustee Co (Ltd) [1937] HCA 64; (1937) 58 CLR 316 at 323, 324.

[10] Which is in similar terms to s 13 of the Charities Act 1993 (UK).

[11] OS No 798 of 1995, 7 December 1995 at 8.

[12] [1972] Ch 276 at 285.

[13] See also Forrest v Attorney-General [1986] VicRp 22; [1986] VR 187 at 189-190 per Nathan J.

[14] [1999] Ch 219 at 230. See also Re Lepton's Charity (supra) at 284-5.

[15] See eg Craigdallie v Aikman (1813) 1 Dow 1; [1813] EngR 392; 3 ER 601; Attorney-General v Pearson [1817] EngR 645; (1817) 3 Mer 353; 36 ER 135; General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515.

[16] eg Charities Act 1978 (Vic) s 2.

[17] Forrest v Attorney-General (supra) at 189-190; Fowler v Geelong College Vic SC No 5594 of 1996, 13 December 1996, Eames J at 16.

[18] For example, Phillips v Roberts [1975] 2 NSWLR 207; Parker v Moseley [1965] VicRp 74; [1965] VR 580; Re Flynn [1975] VicRp 61; [1975] VR 633.

[19] Varsani v Jesani (supra) at 233.

[22] Once the cy pres jurisdiction has been invoked, the Court has traditionally been able to consider the advantages of various charitable objects and to adopt by the scheme the one that seems most beneficial: In re Weir Hospital [1910] 2 Ch 124 at 132.

[24] The Royal Australian Air Force was established in 1921.

[25] Cf In re Prison Charities (1873) LR 16 Eq 129.

[26] The Trust was initially funded by the proceeds of the sale of a German ship, the MV Rostock, which was captured during World War II.