Application by Riley

[2016] NSWSC 1676

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Riley [2016] NSWSC 1676
Hearing dates:	22 November 2016
Decision date:	22 November 2016
Jurisdiction:	Equity
Before:	Stevenson J
Decision:	Trustee would be justified in applying that part of the Trust property that Mr Johnson bequeathed to "The Trustees of BoysTown at Beaudesert" cy pres to BoysTown Limited, now known as YourTown Limited.  Trustee is justified in concluding that this gift has not lapsed and that he is justified in applying this part of the Trust property to the Diocesan Trustees to be used by them for the purposes of St Joseph's Cowper Limited.
Catchwords:	TRUSTS AND TRUSTEES – application for judicial advice – bequest in will to charity at nominated location – where charity conducted by unincorporated association at date of will and later by incorporated association – charity no longer operative at location mentioned in the will – where further bequest to successors of nominated charity
Legislation Cited:	Association Incorporation Act 1984 (NSW) Trustee Act 1925 (NSW)
Category:	Principal judgment
Parties:	Matthew John Riley (Plaintiff)
Representation:	Counsel: J M Atkin   Solicitors: Riley & Riley (Plaintiff)
File Number(s):	SC 2016/269047

EX TEMPORE Judgment

1. Brian Johnson died on 30 August 2013.

2. He left a will dated 14 January 1994.

3. By that will he left the residue of his estate (which comprises some $232,000) to a named individual as to one-third and otherwise as follows:

"[A] one third share to THE TRUSTEES OF BOYSTOWN at Beaudesert and a one third share to THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH OF THE DIOCESE OF LISMORE for the work of the successors of the Cowper Children's Home". [Emphasis in original]

4. Probate of the will was granted on 11 July 2016 to the plaintiff, Mr Matthew Riley (“the Trustee”).

5. The Trustee seeks advice under s 63 of the Trustee Act1925 (NSW) about those bequests.

6. I am satisfied that all entities potentially affected by the bequests have been given notice of this application. None has sought to appear.

“The Trustees of BoysTown at Beaudesert"

7. At the date of the will, there was an unincorporated association called "BoysTown at Beaudesert" which operated a residential service at Beaudesert for boys who were wards of the State. That association was established in 1961 by two De La Salle Brothers, Brothers Alban Dwyer and Kieran Rush, in conjunction with the then Beaudesert parish priest.

8. From 1991, the activities of BoysTown expanded into other areas throughout Australia. However, the service at Beaudesert was closed in 2001.

9. In 2002, the activities of that association were taken over by BoysTown Limited, a company limited by guarantee, and owned by the trustees of the De La Salle Brothers. That company is now known as YourTown Limited.

10. Since 2002, that company has provided services to children, young people and families nationally. Its services include a national "Kids Helpline" and accommodation to women and children escaping domestic violence, especially in Queensland.

11. The Trustee seeks advice as to whether he is justified in treating the gift to "The Trustees of BoysTown at Beaudesert" as having lapsed, and if so whether he is justified in applying the Trust property cy pres.

12. The use of the uppercase and underlining for the words "the trustees of BoysTown" (in contrast to the lowercase used for "at Beaudesert") suggests that Mr Johnson's primary intention was to benefit those "trustees" and that the reference to the town of Beaudesert reflected no more than Mr Johnson's knowledge, at the date of his will, that BoysTown was conducting its charitable activities in that town.

13. At the date of the will, there were no “trustees”, as such, of BoysTown. There is no suggestion in the evidence that Brothers Dwyer and Rush, who established the associations, were, in terms, trustees.

14. Accordingly, the Trustee would be justified in concluding, for that reason, that the gift had lapsed.

15. However, the will plainly bespeaks a general charitable intention on the part of Mr Johnson.

16. BoysTown Limited is, in substance, carrying out the work formerly conducted by that unincorporated association (albeit no longer at Beaudesert).

17. In those circumstances, the trustee would be justified in applying that part of the Trust property that Mr Johnson bequeathed to "The Trustees of BoysTown at Beaudesert" cy pres to BoysTown Limited, now known as YourTown Limited.

“The Trustees of the Roman Catholic Church of the Diocese of Lismore”

18. At the date of the will, there was an unincorporated association called "St Joseph's Cowper Children's Home" run by the Sisters of Mercy, a Roman Catholic Order, on a site in Grafton. That site was then, and is still, owned by the trustees of the Roman Catholic Church of the Diocese of Lismore (“the Diocesan Trustees”). That association provided residential care for children whose family in foster care arrangements had broken down.

19. In 1997, St Joseph's Cowper Incorporated (an association incorporated under the then Association Incorporation Act 1984 (NSW)) was incorporated and took over the provision of residential care at the Grafton site.

20. Those activities are now conducted by another entity, St Joseph's Cowper Limited, a company limited by a guarantee which was incorporated in 2014.

21. The gift in the will is, in terms, to Diocesan Trustees. Those Trustees own the land on which the various entities that I have described have conducted the Cowper Children's Home. The will states that the bequest is to be for the work of "the successors" of the Cowper Children's Home which, in my opinion, now means St Joseph's Cowper Limited.

22. In those circumstances, in my opinion the Trustee is justified in concluding that this gift has not lapsed and that he is justified in applying this part of the Trust property to the Diocesan Trustees to be used by them for the purposes of St Joseph's Cowper Limited.

23. I invite Mr Atkin, who appears for the plaintiff, to bring in short minutes to give effect to those reasons.

24. I order that the costs of this application be paid from the estate.

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Decision last updated: 28 November 2016