Attorney-General (NSW) v Donnelly - [1958] HCA 1

98 CLR 538

HER MAJESTY'S ATTORNEY-GENERAL

IN AND FOR THE STATE OF NEW

SOUTH WALES

DONNELLY AND OTHERS

RESPONDENTS.

LEAHY AND OTHERS

DONNELLY AND OTHERS

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Will-Constitution-Grazing property-Trust for orders of nuns-To be selected by

trustees- Orders "-Term of canon law-Congregations of ters-Whether included in objects of trust-Trust for provision of amenities in convents-To be SYDNEY,

selected by trustees-Active orders--Contemplative orders-Charitable and non- 1957,

charitable purposes-Validity of trusts-Conveyancing Act 1919-1954 (N.S.W.), Nov. 21, 22,

Section 37D of the Conveyancing Act 1919-1954 (N.S.W.) provides :- MELBOURNE,

" (1) No trust shall be held to be invalid by reason that some non-charitable 1958,

and invalid purpose as well as some charitable purpose is or could be deemed Mar. 11.

to be included in any of the purposes to or for which an application of the trust funds or any part thereof is by such trust directed or allowed. (2) Any such trust shall be construed and given effect to in the same manner in all respects as if no application of the trust funds or of any part thereof to or for any such non-charitable and invalid purpose had been or could be deemed to have been

SO directed or allowed."

A testator devised a grazing property to trustees by cl. 3 of his will upon trust for such Order of Nuns of the Catholic Church or the Christian Brothers as my said Executors and Trustees shall select and I again direct that the

98 CLR 539

selection of the Order of Nuns or Brothers as the case may be to benefit under

shall be in the sole and absolute discretion of my said Execu- tors and Trustees' By cl. 5 he disposed of his residuary estate to his trustees "upon trust to use the income as well as the capital to arise from any sale thereof in the provision of amenities in such Convents as my said Executors and Trus- tees shall select either by way of building a new Convent where they think necessary or the alteration of or addition to existing buildings occupied as a Convent or in the provision of furnishings in any such Convent or Convents' The clause went on to provide (inter alia) for a complete discretion in the trustees as to the order or orders of nuns who should benefit thereunder. The evidence established that the canon law of the Roman Catholic Church dis- tinguishes between order of nuns and congregations of sisters, reserving the first title for organisations which take solemn vows and the second for those which take simple vows, but this distinction is not generally known to the laity and the terms " order" congregation" "nun" and "sister" are commonly used indiscriminately by laymen and clergy alike, when there is no call for canonical precision. It further appeared that some convents include contemplative orders whose members were not engaged in any activity recognised by the law as charitable,

Held: (1) by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1958] HCA 1
Decision Date: 11 March 1958

CaseChat Overview and Summary

The Attorney-General (NSW) appealed from a decision of the Supreme Court of New South Wales concerning the interpretation of certain trusts in a will. The primary dispute involved the validity of a trust established for "such Order of Nuns of the Catholic Church or the Christian Brothers as my said Executors and Trustees shall select" and a further trust for the provision of amenities in convents. The core of the disagreement lay in whether these trusts were valid charitable bequests, particularly in light of the inclusion of potentially non-charitable purposes or beneficiaries.

The legal issues before the court were whether the trust for the selected order of nuns or Christian Brothers was valid, and whether the residuary trust for the provision of amenities in convents was valid. Specifically, the court had to determine if the terms "Order of Nuns" and "amenities" were sufficiently certain and charitable, and whether the trusts were saved from invalidity by section 37D of the Conveyancing Act 1919-1954 (NSW), which addresses trusts with both charitable and non-charitable purposes. The court also considered whether the testator's use of the term "orders" was intended in a technical canonical sense or a broader, non-technical sense.

A majority of the High Court (Williams, Webb, and Kitto JJ.) held that the trust in clause 3 of the will was valid, finding that section 37D of the Conveyancing Act did not apply to it. However, the entire Court agreed that the trust in clause 5, and for some judges also clause 3, was saved from invalidity by the operation of section 37D. The Court further determined, by a majority, that the testator's reference to "orders" of nuns was intended in a non-technical sense, thus encompassing both orders and congregations of sisters. The court also considered the absence of a territorial limitation on the beneficiaries.

The High Court's decision affirmed in part and reversed in part the decision of the Supreme Court of New South Wales. The trust concerning the grazing property "Elmslea" was upheld as valid, while the trust concerning the residuary estate was also found to be valid, largely due to the application of section 37D of the Conveyancing Act.

Orders