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Part 11 Court powers
(b) proceed in the absence of the party or interested person.
(3) An order made in the proceeding is binding on the party or
interested person.
(4) In this section—
interested person, in relation to a proceeding, means a person,
or persons of a class, who the court considers—
(a) should be made a party or parties to the proceeding; or
(b) should be given an opportunity to attend and be heard in
the proceeding.
192 Court may charge costs on property
The court may order that the costs of an application under this
Act—
(a) be paid or raised out of—
(i) the property to which the application relates; or
(ii) the income of the property to which the application
relates; or
(b) be borne and paid in the way and by the persons the
court considers just.
193 Payment of particular trust property into court by
trustees
(1) This section applies in relation to trust property comprising
trust funds or securities.
(2) A trustee who holds the trust property, or has the trust
property under the trustee’s control, may pay the trust
property into court.
(3) The receipt of the proper officer of the court is a sufficient
discharge to the trustee for the payment of the trust property
into court.
(4) Subject to rules of court, the trust property is to be dealt with
as the court, by order, directs.
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(5) If the trust property is held by, or is under the control of, more
that 1 trustee, the trust property may be paid into court on a
decision of a majority of the trustees.
(6) If a majority of the trustees in whom the trust property is
vested wish to pay the trust property into court but the
agreement of the remaining trustees can not be obtained, the
court may order—
(a) that the trust property be paid into court without the
agreement of the remaining trustees; and
(b) if the trust property is deposited with a financial
institution, broker or other depositary—that the trust
property be paid or delivered to the majority of the
trustees for payment into court.
(7) The payment or delivery of the trust property under an order
made under this section is as valid and effective as it would be
if the payment or delivery were made by all of the trustees of
the trust property.
Part 12 Charitable trusts
Division 1 Trusts containing non-charitable
and invalid purposes
194 Inclusion of non-charitable and invalid purpose not to
invalidate trust
(1) This section applies if, under a trust, the purposes for which
the trust property is directed or allowed to be applied include,
or could be taken to include, both a charitable purpose and a
non-charitable and invalid purpose.
(2) The trust—
(a) is not invalid only because of the inclusion of the
non-charitable and invalid purpose; and
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(b) is to be construed, and has effect, as if the trust did not
direct or allow the trust property to be applied for the
non-charitable and invalid purpose.
(3) This section does not apply in relation to a trust declared
before, or to the will of a testator dying before, 1 July 1973.
Division 2 Applications to court in relation to
charitable trusts
195 Who may apply
Any of the following entities may apply to the court for an
order under this part in relation to a charitable trust—
(a) the Attorney-General or a person authorised by the
Attorney-General;
(b) a trustee of the trust;
(c) a person, or charity, interested in the proper
administration of the trust.
196 Notice of application
(1) The applicant must give written notice of the application to—
(a) if the applicant is the Attorney-General or a person
authorised by the Attorney-General—the trustees of the
charitable trust; or
(b) if the applicant is a trustee of the charitable trust—
(i) the Attorney-General; and
(ii) any trustee of the trust who is not a party to the
application; or
(c) if the applicant is a person, or charity, interested in the
proper administration of the charitable trust—
(i) the Attorney-General; and
(ii) the trustees of the trust.
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(2) Also, the applicant must give written notice of the application
to any other person or charity as directed by the court.
197 Orders
The court may make any of the following orders in relation to
the charitable trust—
(a) an order giving directions about the administration of
the trust;
(b) an order requiring a trustee to carry out the trust;
(c) an order requiring a trustee to comply with a scheme
approved in relation to the trust, whether under this part
or otherwise;
(d) an order requiring a trustee to satisfy the trustee’s
liability for a breach of the trust;
(e) an order about costs;
(f) an order about another matter that the court considers
just.
Division 3 Schemes to allow trust property to
be applied cy pres
Subdivision 1 Preliminary
198 References to purposes of charitable trust
A reference in this division to the purposes of a charitable
trust is a reference to—
(a) if paragraph (b) does not apply—the original purposes
of the trust; or
(b) if the application of the trust property has been changed
or regulated by a scheme approved under this division or
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otherwise—the purposes for which the trust property
may, for the time being, be applied.
199 Circumstances in which purposes of charitable trust may
be changed under sdiv 2 or 3
(1) The circumstances in which the purposes of a charitable trust
may be changed under subdivision 2 or 3 to allow the trust
property to be applied cy pres are as follows—
(a) the purposes, wholly or in part—
(i) have been, as far as may be, fulfilled; or
(ii) can not be carried out; or
(iii) can not be carried out according to the directions
given and to the relevant considerations;
(b) the purposes provide a use for part only of the trust
property;
(c) the trust property and other property that may be applied
for similar purposes—
(i) can be more effectively used in conjunction; and
(ii) can be appropriately applied to common purposes,
having regard to the relevant considerations;
(d) the purposes refer to—
(i) an area that was, but has since ceased to be, a unit
for some other purpose; or
(ii) a class of persons, or an area, that has ceased to be
suitable, having regard to the relevant
considerations, or to be practical in administering
the trust;
(e) the purposes, wholly or in part—
(i) have been adequately provided for in other ways;
or
(ii) have ceased to be charitable; or
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(iii) have, in any other way, ceased to provide a suitable
and effective way of using the trust property,
having regard to the relevant considerations.
(2) For subsection (1), the relevant considerations are—
(a) the spirit of the trust; and
(b) the social and economic conditions prevailing at the
time of the proposed change to the purposes of the trust.
(3) Subsection (1) does not affect the conditions that, apart from
this Act, must be satisfied in order that property given for
charitable purposes may be applied cy pres, except to the
extent the conditions require a failure of the purposes.
200 Relationship with Charitable Funds Act 1958
This division does not affect the application of the Charitable
Funds Act 1958 to the funds to which that Act applies.
Subdivision 2 Approval of schemes by court
201 Court may approve scheme
(1) This section applies if—
(a) an application is made to the court for an order
approving a scheme to change the purposes of a
charitable trust to allow the trust property to be applied
cy pres; and
Note—
See section 195 for who may apply to the court.
(b) the court is satisfied that 1 or more of the circumstances
mentioned in section 199(1)(a) to (e) apply in relation to
the charitable trust.
(2) The court may—
(a) grant, or refuse to grant, the order; and
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(b) make any other order the court considers just.
Subdivision 3 Approval of schemes by
Attorney-General
202 Trustee may apply to Attorney-General to approve
scheme
(1) This section applies if—
(a) the trustee of a charitable trust seeks approval of a
scheme to change the purposes of the trust to allow the
trust property to be applied cy pres; and
(b) the purposes of the trust have not previously been
changed by the court under subdivision 2 or otherwise;
and
(c) the value of all the trust property does not exceed the
monetary limit under the District Court of Queensland
Act 1967, section 68.
(2) The trustee may, instead of applying to the court under
subdivision 2 or otherwise, apply to the Attorney-General to
approve the scheme.
(3) The application must—
(a) be in the approved form; and
(b) comply with any requirements prescribed by regulation
for the application; and
(c) be accompanied by any fee prescribed by regulation for
the application.
203 Requirements for public notice etc.
(1) On receiving the application, the Attorney-General must, by
written notice given to the trustee, require the trustee to give
public notice of the application in a stated way the
Attorney-General considers appropriate.
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(2) The trustee must give public notice of the application in the
way stated in the notice given under subsection (1).
(3) The public notice must—
(a) invite persons and charities interested in the proper
administration of the charitable trust to make written
submissions to the Attorney-General within a stated
period of at least 28 days after the day the notice is
published; and
(b) state how submissions to the Attorney-General may be
made.
204 Powers of Attorney-General
(1) The Attorney-General may do 1 or more of the following—
(a) ask the trustee to provide any information, opinions or
advice the Attorney-General considers appropriate;
(b) make any other investigations and inquiries the
Attorney-General considers appropriate;
(c) propose a variation of the scheme.
(2) If the Attorney-General proposes a variation of the scheme,
the Attorney-General must consult the trustee on the proposed
variation.
205 Deciding application
(1) The Attorney-General must consider the application and
decide to—
(a) approve the scheme; or
(b) approve the scheme with a variation proposed under
section 204(1)(c); or
(c) refuse to approve the scheme.
(2) In making the decision, the Attorney-General must have
regard to any written submissions made to the
Attorney-General, within the submission period for the
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application, by a person or charity interested in the proper
administration of the charitable trust.
(3) The Attorney-General may decide to approve the scheme
under subsection (1)(a) or (b) only if satisfied that—
(a) the value of all the trust property does not exceed the
monetary limit under the District Court of Queensland
Act 1967, section 68; and
(b) 1 or more of the circumstances mentioned in section
199(1)(a) to (e) apply in relation to the charitable trust;
and
(c) the trustee has given public notice of the application in
compliance with section 203(2) and (3); and
(d) for an approval under subsection (1)(b)—the trustee
consents to the variation of the scheme proposed by the
Attorney-General.
(4) The Attorney-General must decide to refuse to approve the
scheme if the Attorney-General considers it more appropriate
that the application be dealt with by the court—
(a) because of the contentious nature of the application; or
(b) because a special question of law or fact arises; or
(c) for another reason.
(5) If the Attorney-General decides to refuse to approve the
scheme, the Attorney-General must give the trustee written
notice of the decision, including the reasons for the decision.
(6) In this section—
submission period, for an application, means the period stated
in the public notice given under section 203(3)(a) in relation
to the application.
206 Public notice of Attorney-General’s decision
(1) The Attorney-General must give public notice, in the way the
Attorney-General considers appropriate, of the
Attorney-General’s decision in relation to the scheme.
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(2) If the decision is to approve the scheme, the public notice
must also state—
(a) that, under section 208, a person aggrieved by the
decision may, within 28 days after the day the notice is
given, appeal against the decision to the Supreme Court;
and
(b) the day the scheme takes effect if an appeal against the
decision is not started under section 208.
207 Effect of decision to approve scheme
(1) If the Attorney-General decides under section 205 to approve
the scheme, the scheme takes effect on—
(a) if an appeal against the decision is started under section
208—the day the Supreme Court affirms the decision or
dismisses the appeal; or
(b) otherwise—the day that is 28 days after the day public
notice of the decision is given under section 206 or, if
the public notice states a later day, the later day.
(2) On taking effect, the scheme is as effective, for all purposes,
as it would be if it were approved by an order of the court
under subdivision 2.
208 Appeal against decision to approve scheme
(1) If the Attorney-General decides under section 205 to approve
the scheme, a person aggrieved by the decision may appeal
against the decision to the Supreme Court.
(2) The appeal must be started within 28 days after the day public
notice of the decision to approve the scheme is given under
section 206.
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209 Application for court approval not prevented by decision
to refuse to approve scheme
If the Attorney-General decides under section 205 to refuse to
approve the scheme, the decision does not prevent the trustee
applying to the court under subdivision 2 or otherwise to
approve the scheme.
210 Register of approvals
(1) The chief executive must keep a register of all schemes
approved by the Attorney-General under section 205.
(2) The register may—
(a) be kept in any form, including electronically, that the
chief executive decides; and
(b) include any other information relating to a scheme
mentioned in subsection (1) that the chief executive
considers appropriate, including, for example, details of
any appeal started under section 208 against the
Attorney-General’s decision to approve the scheme.
(3) The register must—
(a) if kept electronically—be published on, or accessible
through, the department’s website; or
(b) otherwise—be available for public inspection, during
the department’s ordinary business hours, at a place
decided by the chief executive.
Subdivision 4 Duty of trustees to make cy pres
applications
211 Duty of trustee in relation to application of property cy
pres
(1) This section applies to the trustee of a charitable trust if the
circumstances permit the trust property to be applied cy pres.
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Part 13 Gifts by particular trustees to charity-like government entities or other entities
(2) The trustee has a duty to secure the effective use of the trust
property for charitable purposes by making an appropriate
application under this division or otherwise to have the
property applied cy pres.
Part 13 Gifts by particular trustees to
charity-like government entities
or other entities
212 Definitions for part
In this part—
deductible gift recipient see the Income Tax Assessment Act
1997 (Cwlth), section 30-227.
eligible recipient means—
(a) in relation to any prescribed trust, a deductible gift
recipient that—
(i) is mentioned in the Income Tax Assessment Act
1997 (Cwlth), section 30-15, table, item 1; and
(ii) is not a charity because of its connection with
government or being a government entity; and
(iii) would be a charity if it did not have the connection
with government or were not a government entity;
or
(b) in relation to a prescribed trust that is a relevant trust, an
entity that—
(i) is not a charity or an eligible recipient under
paragraph (a); and
(ii) is prescribed by regulation.
government entity see the Charities Act 2013 (Cwlth), section
4.
prescribed power, for a prescribed trust, see sections 213(2)
and 214(3).
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