Attorney-General (Qld) (Ex rel Nye) v Cathedral Church of Brisbane

[1977] HCA 15

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Mason, Jacobs and Murphy JJ.

ATTORNEY-GENERAL (Q.); Ex rel. NYE v. CATHEDRAL CHURCH OF BRISBANE

(1977) 136 CLR 353

15 March 1977

Charities—Religion

Charities—Charitable trusts—Public appeal for funds to build hospital on cathedral land—Whether land impressed with hospital trust—Conditional appropriation of land to purposes of hospital trust—Duration—Failure of purposes—Reverter. Religion—Church of England—Cathedral land—Cathedral purposes—Acquisition and appropriation of lands adjoining cathedral for purpose of establishing hospital—Desire to prevent undesirable commercial development—Whether cathedral purpose—Church of England Act of 1895 (Q.), s. 43—Church of England Act of 1895 Amendment Act of 1901, s. 2—Religious Educational and Charitable Institutions Act of 1861 (Q.)—Cathedral Canon of St John the Evangelist at Brisbane, cll. 25, 37, 38, 39.

Decisions

1976, March 15.
The following written judgments were delivered:-
BARWICK C.J. In the reasons for judgment prepared in this appeal by my brother Jacobs will be found a recital of the circumstances upon which the relators in the action decided by the Supreme Court of Queensland (Stable J.) base their claim. I have no need to supplement that statement of the relevant facts. (at p357)

2. But for one circumstance, there could be no doubt that no trust of any land acquired by the Synod or by the Lesser Chapter arose out of the facts there set out. All the lands on acquisition became "Cathedral" lands. The power of the Synod and the Lesser Chapter to deal with those lands was derived from the statutes and the ownership of the land. Neither the statutes nor that ownership created any trusts. The limitation of the use of the lands was effected by limitation upon the powers of the Synod or the Lesser Chapter, and not by the creation of trusts. (at p357)

3. No doubt from time to time part of the acquired lands were used for the purposes of a hospital. The Pyrmont lands were continued for that purpose upon and after their acquisition, partly as an economic measure to assist in paying for those lands and partly as a purpose suitable to be undertaken by a Christian church. It could be said that some of the acquired lands were "appropriated" to the use of a hospital, if that expression is used in the sense in which an owner, without creating any trust or accepting any obligation to maintain the situation, sets apart portion of his land for a particular use. (at p358)

4. The circumstance on which the relators fasten to justify their claim that the acquired lands or some designated part of them are impressed with a charitable trust is that, as a result of a public appeal by the Cathedral through a committee of the Synod, styled the St Martin's War Memorial Hospital Committee ("the Committee"), a substantial sum of money was raised for the purpose of building a hospital to be known as St Martin's War Memorial Hospital ("St Martin's Hospital") and to be a permanent War Memorial in relation to the First World War. This sum did not provide the full cost of erecting the hospital. Money had to be borrowed and in due course repaid. Clearly, the sum raised by public subscription was held by its recipient on trust to use it in the erection of the hospital. But, in my opinion, by accepting the public subscriptions, neither the Synod, by its committee, nor the Lesser Chapter accepted an obligation to declare a trust of the land on which the hospital should be erected. The undoubted circumstance that a hospital may be a charity in the relevant sense does not require the conclusion that the building of a hospital by the Cathedral created a charitable trust of the land on which it was built. (at p358)

5. It must be remembered that the moneys subscribed by the public were given to the Cathedral by way of the Committee. Also the War Memorial was to be a memorial "within the Church", to use an expression found in one of the constituting resolutions, and the hospital was to be erected on "Cathedral" lands. In so expressing myself, I see no need to distinguish between the Cathedral, the Synod and the Lesser Chapter. It was these circumstances, rather than the creation of a specific trust in that behalf, which would secure in the public mind the continuity of the hospital when built. The Cathedral had evidently made it a "Cathedral" project, though the day to day running was to be left to the Sisters of the Sacred Advent who were to have a sufficient proprietary interest to support their work. (at p358)

6. In my opinion, there never was an intention on the part of the Synod or the Lesser Chapter to create a trust of any of the acquired land for the charitable purpose of a public hospital. No such trust should be fastened on any of those lands, although within the management of the affairs of the Cathedral some of the acquired lands were set apart and devoted to the purposes of such a hospital. In my opinion, the only obligation, legal or equitable, which the Synod or the Lesser Chapter assumed by the acceptance of the publicly subscribed money was to employ it in the erection of a hospital and to treat that hospital as a war memorial for whatever such a course might involve. Beyond that, the enterprise was carried on for the Cathedral, though for internal accounting purposes an account styled "St Martin's Hospital Building Fund" ("the Fund") was created and maintained. (at p359)

7. I agree with my brother Jacobs in thinking that, in the particular circumstances, the use of parts of the acquired land for the purposes of a hospital was not beyond the power either in the Synod or the Lesser Chapter and that no conveyance or transfer or any legal estate in any of those lands was involved in such use. (at p359)

8. But I am unable to conclude that, because the purposes of the public appeal for funds were charitable, the land upon which the building was erected and the building itself became impressed with a charitable trust. My own analysis is, as I have said, that the Cathedral appealed to the public for funds to enable it to build a hospital on its own lands, the lands and the hospital remaining the absolute property of the Cathedral. No trust of land or building was, in my opinion, created. (at p359)

9. This conclusion is sufficient to dispose of this appeal. I have no need to deal with the use of the Moretti Bequest. Its terms will need examination and construction in the light of the circumstance that St Martin's Hospital could be regarded as the object of the gift. What follows from such a conclusion needs separate consideration. (at p359)

10. I should add that, if contrary to my own opinion it should be held that some trust, beyond the application of the subscribed funds to the erection of the building, should be thought to have arisen on the acceptance of those funds, I would be prepared to accept the solution offered by my brother Jacobs. (at p359)

11. In conclusion, I should say something as to the appropriate order to be made for the costs of this appeal. I do not accept the view that the moneys standing to the credit of the fund or paid into court by the Sisters of the Sacred Advent are other than the property of the Cathedral. I have regarded the hospital as carried on either for the profit of the Sisters - which they disclaim - or for the profit of the Cathedral, whether under the Synod, the Lesser Chapter or the Committee. Accordingly, I do not regard those moneys as in the disposition of the Court by an order for costs. The Attorney-General might well have brought suit without relators and thus conducted it at public expense. In all the circumstances, in my opinion there should be no order for costs. (at p360)

STEPHEN J. The reasons for judgment of my brother Jacobs represent without qualification my own views upon this appeal. I agree both with the orders which he proposes and with the reasons he has given for the making of those orders. (at p360)

MASON J. I have had the advantage of reading the reasons for judgment prepared by Jacobs J. with which I agree. (at p360)

2. Accordingly, it is my opinion that the appeal should be dismissed to the extent to which it relates to the lands in question. As to the Moretti Bequest, it should be declared that the Synod holds the moneys which represent the funds of that bequest upon trust for the charity St Martin's Hospital and that the Lesser Chapter holds all moneys and property of St. Martin's Hospital, including the moneys paid into court by the Sisters of the Sacred Advent upon the trusts of St Martin's Hospital. (at p360)

3. Likewise, for the reasons given by Jacobs J. I would substitute for the order that the relators pay the costs of the action an order that the costs of all parties be paid out of the trust funds of the St Martin's Hospital charity. (at p360)

JACOBS J. Two actions were heard before Stable J. (Supreme Court of Queensland), both concerning St Martin's Hospital in Brisbane. In the first of them, the Attorney-General ex relatione claimed a declaration that the Corporation of the Lesser Chapter of the Cathedral Church of Brisbane ("the Lesser Chapter") stood possessed of certain lands together with all buildings thereon including the building known as St Martin's War Memorial Hospital upon trust to conduct on the said lands a hospital for the healing of the sick situated beside and closely connected with the Cathedral Church of St John the Evangelist at Brisbane as a permanent War Memorial, and an injunction restraining the Lesser Chapter from dealing with the said lands except for the purpose of the carrying on on the said lands of a hospital for the healing of the sick and restraining the Lesser Chapter from demolishing the buildings on the said lands. Against the Corporation of the Synod of the Diocese of Brisbane ("the Synod") and the Lesser Chapter a declaration was sought that moneys and other property which the Lesser Chapter and the Synod had accumulated as a result of the conduct of the St Martin's War Memorial Hospital were held by them upon trust as aforesaid and an injunction was sought restraining the Lesser Chapter and the Synod from dealing with the said moneys and other property save in the performance and execution of the said trust. By amendment to this declaration specific mention was made of what are described as the Moretti Bequest moneys to which reference will be made hereafter. Against the Synod a declaration was sought that certain lands which in the course of the hearing came to be referred to as the St Clare lands were held upon trust as aforesaid, and an injunction was claimed restraining the Synod from dealing with those lands save in the performance and execution of the trusts. Stable J. dismissed this action with costs, and it is against that dismissal that the Attorney-General and the relators appeal. (at p361)

2. The second action was an action by the Lesser Chapter and the Synod against the Attorney-General seeking various declarations some of which relate to the same matters as are raised in the relators' action, such as the destination of the lands therein referred to and as to the trusts upon which funds of St Martin's Hospital are held but also a declaration was sought that it has ceased to be practicable to use and administer and manage all or any of the said funds in performance of the hospital trust by the operation of St Martin's Hospital upon the lands upon which it stands and praying that a proper scheme may be directed for the use, administration and management of all the said funds cypres. Stable J. made no final orders in this action which is therefore not the subject of any appeal to this Court. However, he determined the issues in that action so far as they were also raised in the relators' action and, further, made the finding of fact that it had become impracticable to carry out the trust by the operation of St Martin's Hospital upon the lands upon which the hospital was being conducted and that the funds of St Martin's Hospital should be applied cy-pres. (at p361)

3. The most important issue in the action by the relators which was determined against them by Stable J. and which is the subject of this appeal is whether the lands described in the pleadings form part of the property of a charitable trust, which may be described as St Martin's Hospital charitable trust, independently of the trusts upon which the Lesser Chapter and the Synod respectively hold the property of the Cathedral Church of Brisbane and of the Church of England in Queensland. The lands in question came to be shortly described as (a) the Pyrmont Hospital lands; (b) the Frascati lands; (c) the Wharf Street lands; (d) the Eton House lands; (e) the St Clare lands. (at p361)

4. The relevant history relating to these lands will appear in the course of a narration of the events which form the background to the present action. The Lesser Chapter is the registered proprietor of all the subject lands with the exception of the St Clare lands. The Lesser Chapter is a body corporate incorporated under the Religious Educational and Charitable Institutions Act of 1861 (Q.). Its duties and powers are regulated by the Cathedral Canon. By cl. 25 it may subject to conditions not presently relevant exercise in respect of the Cathedral property and the income thereof all functions and powers exercisable by the Synod by virtue of s. 13 of the Church of England Act of 1895 (Q.) and by virtue of s. 2 of the Church of England Act of 1895 Amendment Act of 1901 or of any other statute or of any deed, will or other instrument relating to any such property. By cl. 37 of the Cathedral Canon the lands upon which the Cathedral stands which are described in the schedule to the Canon are appropriated as Cathedral property for the purposes set forth in the Canon. These lands and all other property settled or thereafter settled for the Cathedral or Chapter or any of the purposes of the Canon and all moneys which might arise from any sale or mortgage of any such lands or property and all investments and property for the time being representing the same are referred to in the Canon as Cathedral property. By cl. 38 Cathedral property and the income thereof and other moneys applicable for the purposes of the Canon are required so far as is consistent with the express trusts if any affecting such property or income under the terms of any gift thereof or by virtue of any Act of Parliament, to be held and applied for the purposes mentioned in the Canon in such manner as the Lesser Chapter should from time to time direct. (at p362)

5. I shall set out the next following clause, cl. 39:

"The purposes for which Cathedral property and capital moneys representing the same shall and may be held and applied are the following - (a) The erection of the Cathedral and the improvement furnishing and ornamentation thereof.

(b) The purchase of any freehold lands for Cathedral purposes or for the purposes of any Evangelic or educational work in connexion therewith;

(c) The erection or improvement of any buildings or erections upon Cathedral lands for Cathedral purposes or for the purposes of any Evangelic or educational work in connexion therewith.

(d) Investment ..." (at p362)

6. The Synod is also a corporation incorporated under the Church of England Act of 1895. By s. 13 of the Church of England Act of 1895 all property vested in or acquired by a Synod shall, so far as the same is subject to any express trusts created by the original donor thereof or declared or contained in any Act of Parliament, be held, managed and dealt with by the Synod in conformity with such trusts, and shall, so far as the same is not subject to any such trusts or so far as any such trusts shall not extend be held and managed and may be mortgaged, charged, alienated or otherwise dealt with and disposed of in such manner as the Synod may direct. Section 2 of the Church of England Act of 1895 Amendment Act of 1901 provides that it shall be lawful for any Synod to sell, mortgage and lease in such manner as the Synod may from time to time direct any lands for the time being vested in the Synod upon trust for Church of England purposes and for no other purposes whatsoever. (at p363)

7. As early as 1908 the Lesser Chapter decided to inspect the property "Pyrmont" with a view to acquiring the property in order to prevent it coming into the hands of an undesirable owner. That property is situated immediately west of the lands upon which the Cathedral itself is built and very close to the west wall of the Cathedral. No action was taken at this time but inquiries were continued in 1913 in relation to the Pyrmont lands upon which a private hospital was conducted, and also in relation to the Frascati lands, a private dwelling house adjoining the Pyrmont lands with a frontage to Ann Street between the Cathedral lands and the Pyrmont lands. Eventually after a report by a sub-committee in September 1916 it was decided that the Lesser Chapter should purchase the Pyrmont lands and in October 1916 an agreement for purchase was made. By December 1916 a sum of 7,681 pounds.17.4 had been paid on account of the Pyrmont lands of which 4,000 pounds was lent by the A.M.P. Society. The Lesser Chapter resolved that the hospital be rented to the Sisters of the Sacred Advent so that they could continue the carrying on of a hospital upon the lands. In 1917 the Pyrmont Hospital Account was incorporated with the Cathedral Building Fund. The lease to the Sisters of the Sacred Advent was continued. In 1918 the question again arose of the purchase of the Frascati lands, but the matter was deferred. (at p363)

8. In September 1918, as the Great War was drawing to its end, the Archbishop raised before the Lesser Chapter the requirement in the Cathedral of a definite scheme for a soldiers' memorial. The first suggestion was a completion of the choir stalls, but the matter was deferred. The following month before the Lesser Chapter the requirements of the Pyrmont Hospital were discussed, and it was resolved that it was desirable to contemplate the rebuilding of Pyrmont at an early date, and that subscriptions might be accepted for that purpose. Early in December 1918 the Diocesan Council resolved that there should be raised a permanent memorial within the Church to those who had fought and died in the Great War. Various suggestions were made as to the form of the memorial including the enlargement of the Cathedral, the erection of a new Pyrmont Hospital, and the purchase of more ground west of the Cathedral. A committee was formed. That committee reported to the Diocesan Council in February 1919 and it was resolved by the Council that the object of the scheme should take the form of:

"1. The rebuilding of the Pyrmont Hospital, the Committee being satisfied of the suitability of the present site for a hospital of fifty beds. 2. The acquisition of other property for the improvement of the Cathedral site. 3. In the event of the moneys subscribed permitting, the erection of another building included in the Cathedral scheme of buildings." (at p364)

9. In May 1919 a letter from the Archbishop was published in the "Church Chronicle" in which he reported that the Diocesan Council had decided that the war memorial should take the form of a hospital to be built on the site of the then Pyrmont Hospital, adjoining the Cathedral, and the acquisition of further property for the improvement of the Cathedral site. In June 1919 the Archbishop in his inaugural address to Synod recommended that there should be a permanent memorial in the form of "a beautiful and efficient memorial hospital at Pyrmont". The Synod indorsed the recommendation and determined "that no better memorial could be made than the erection of a hospital - closely linked to the central Church of the Diocese - worthy of the traditions of our Church". (at p364)

10. In August 1919 a public meeting was called and held for the purpose of launching the Church of England Central War Memorial - the erection of a new hospital on the site where Pyrmont Hospital then stood. The cost of the hospital was estimated at 50,000 pounds and the appeal for funds continued thereafter for a number of years. A large sum of money was raised. By June 1921 the total receipts of the St Martin's Hospital Fund were some 33,700 pounds and by November, 52,000 pounds. Further moneys were borrowed and the building work proceeded. The hospital was opened in November 1922. (at p364)

11. As to the other properties in the vicinity of the Cathedral, the Frascati lands were purchased by the Lesser Chapter in July 1919 for a sum of 4,375 pounds and in September 1919 it was resolved that it was desirable that the Lesser Chapter should acquire the lands facing Wharf Street, which I have described as the Wharf Street lands and the Eton House lands. This resolution was passed after the Archbishop had spoken to the Lesser Chapter of the requirements of the extension of the Cathedral and St Martin's Hospital sites by the acquisition of these properties. In February 1920 action which had been taken to purchase the Wharf Street lands was approved. The property had been purchased at auction for 13,500 pounds on terms of 4,500 pounds cash and balance by instalments extending over five years. In June 1920 it was reported by the Lesser Chapter to the Synod that in connexion with the War Memorial Scheme the Chapter had purchased the Wharf Street properties and it was stated

"The ownership of this land by the Chapter will enable the building of St Martin's Hospital to be placed further from the Cathedral building, and will be a great benefit to both the Hospital and the Cathedral in other ways when the present tenancies have expired. The property will be vested in the name of the corporation of the Lesser Chapter. St Martin's Memorial Hospital Committee has assumed the responsibility for the payment of the purchase money".

The purchase of the Frascati lands was also reported. At a meeting of the Lesser Chapter in October 1920, after discussion of finances relating to the St Martin's Hospital Fund, it was resolved:

"1. That the site known as Pyrmont be appropriated for the purposes of St Martin's Hospital. 2. That the Cathedral Chapter agrees to finance the purchase of the Wharf Street property consisting of hotel and two adjoining buildings on behalf of the St Martin's Building Committee. 3. That the Treasurer be authorized to negotiate loan of a sum which in his opinion may be required to complete the building of St Martin's Hospital up to a limit of 30,000 pounds.0.0." (at p365)

12. Moving forward now to 1924, at a meeting of the Lesser Chapter the purchase of the Eton House lands, upon which at that time a Congregational Church was built, was approved. The purchase price was 24,000 pounds payable as to 8,000 pounds on contract and as to the balance on vacation of the property by the Congregational Church authorities. This was originally to be after a period of two years but this time was extended, and payment of the balance was not finally made until late in 1927. Thereafter the old Congregational Church was demolished, and a new building was erected on the Eton House lands, part of which was used as nurses' quarters. (at p365)

13. The St Martin's War Memorial Hospital Appeal Funds were, it would appear, paid into the accounts of the Lesser Chapter and no clear distinction was maintained between the St Martin's Hospital Account and the Cathedral Account in the records which were examined by Mr. Tucker of Hungerford's, accountants. In November 1920, following the resolutions of the Lesser Chapter of October 1920 which I have set out earlier, 3,958 pounds.11.10 was transferred out of the Pyrmont Hospital Account to the debit of St Martin's Hospital Account. The balance of 4,000 pounds of debit was at that stage left in the Pyrmont Hospital Purchase Account as that amount was owing by the Lesser Chapter to the A.M.P. Society. The liability in respect of this 4,000 pounds was by 1921 transferred to the St Martin's Hospital Account. In 1921 the whole of the Pyrmont Hospital Account, 7,958 pounds.11.10, was shown as an asset in the St Martin's Hospital Account. (at p366)

14. The Frascati lands remained an asset in the accounts of the Cathedral Fund until 1934. On 1st October 1934 the whole Frascati Account was transferred to the debit of St Martin's Hospital Account and it is no doubt this change which is referred to in the report of the Diocesan Finance and Property Board to the Synod of 31st March 1935. The report contained the following passage:

"The building on the site of St Martin's Hospital known as 'Frascati' was sold for removal, and the site has been laid out to conform with the hospital and Cathedral grounds. The Council was unsuccessful in its efforts to obtain exemption from city rates, the ground being regarded by the city valuer as portion of St Martin's Hospital site. Under an arrangement with the Sisters of the Sacred Advent, the debt of 4,600 pounds.17.11d. on the property, was transferred to the St Martin's Hospital. Rates are paid by the hospital."

At some later date extensions to the hospital, in particular operating theatres, were built on the Frascati lands. (at p366)

15. The Wharf Street property was never shown in the St Martin's Hospital Account as an asset but it does appear that at the time of purchase in 1920 it was intended that the Hospital Account should assume responsibility for the payment of the purchase money. However on the sparse information available it does not appear that any part of the funds for the purchase came permanently from the St Martin's Hospital Account. (at p366)

16. The Eton House lands, though purchased with the assistance of funds from the Building Fund Appeal Funds, do not, on the sparse information available, appear to have been treated as an asset of the hospital. There was a loan from the Building Fund to the Congregational Church Purchase Account at the time of the purchase in December 1924, but this appears to have been made good in March 1928. (at p367)

17. Having stated that all of the subject lands in the Cathedral area were held by the Lesser Chapter as registered proprietor, Stable J. said:

"There has never been any document of trust in a formal sense relating to any particular parcel of land (save for the (St Clare) land). So it seems that one must go to the Cathedral Canon, which indicates to me that each piece of land at the time of its acquisition came within the description of 'Cathedral property'. As such it was trust property and it was held for the purposes named in Cathedral Canon 39 which I have already quoted, the Chapter being the trustee. The scheme for the establishment of a war memorial was, as I have related in the narrative mixture of pleadings and facts herein contained, as set out in the Dioscesan (sic) Council resolution of 13th February 1919, which I have already quoted. The question, therefore, is was the erection of a War Memorial Hospital on grounds held in trust for cathedral purposes within the scope of such purposes."

He held "that the use of cathedral land for the establishment of a hospital whose cost was subscribed to as already indicated and which was the subject of another trust was inconsistent with the trust on which the land was held by the Chapter". (at p367)

18. Later he said:

"I have already mentioned that all of the land with which I am concerned in the cathedral area is held by the Chapter as registered proprietor, and what I consider flows from that. It is held on charitable trust, and, as I understand the law, the Church cannot dispose of that trust or vary it without the leave of the court. It is said in Tudor on Charities 6th ed., p. 131 that when a charity has been founded and trusts have been declared the founder has no power to revoke, vary or add to the trusts. A number of book entries have been made, and reversed, concerning lands within the scope of what I shortly call the charitable trust of the Church. But I accept that these entries are not sales, there is nothing in the nature of contract of sale between two parties, there is no documentation in terms of the Real Property Acts. In considering this aspect I have had considerable regard to the approach of Walsh J. in Glennon v. Federal Commissioner of Taxation (1972) 127 CLR 503 . The book entries appear to me to have no more effect as a transfer of property than does the action of a man in transferring money from his right-hand trouser pocket to his left-hand trouser pocket. I repeat, there is no question of credibility involved in this aspect of the actions, so that an appellate court is in just as good a position as I am in considering the evidence. What were put forward as sales or transactions transferring property from one trust to another were in my view nullities, so that the land claimed to be affected by them remains subject to the original trusts for the end referred to in the Cathedral Canon, cl. 39, with which I have already dealt. The result is that, so far as the relators' action is concerned St Martin's Hospital was set upon land which was and is subject to a trust whose purpose did not and does not include the erection and running of a War Memorial Hospital. I consider that the Church is entitled to have its land - which means that the hospital building may be taken down. I shall, of course, if need be restrain the Church from any such action until the end of this litigation or further earlier order, for I realise that I am but a whistle stop on the way to a more important terminus. The relators' action fails." (at p368)

19. So far I have not dealt with the St Clare lands. The registered proprietor of these lands was the Synod. This land had been the site of a home for aged and poor women but that home had burnt down and in 1965 an order was made by the Court that the Synod as trustee of the trusts set out in the nomination of trustees indorsed on the certificate of title be at liberty to sell to itself the said lands for a price of 20,000 pounds and to transfer the land to itself freed from the trusts referred to in the said schedule. There is no occasion to inquire into the correctness or otherwise of the procedure thus adopted, but it may be taken that after the order of the Court in 1965 the St Clare lands were held by the Synod free from the express trusts and for the benefit of the Church of England pursuant to s. 13 of the Church of England Act of 1895. Thereafter it appears to have been determined that the St Clare lands would be a site for a new St Martin's Hospital. In 1969 there was held by the Synod a sum of approximately $60,000 which has been described as the Moretti Bequest. This had been a bequest of one-half of the residue of an estate to the Synod for the benefit of St Martin's Hospital. It was apparently determined that the bequest would be utilized in a proposed appropriation of the St Clare site for the purposes of the Hospital at a price of $40,750. Thereafter, an amount of $15,049 was spent on filling of low lying areas on the St Clare site and the cost of this in addition to the said $40,750 was charged against the Moretti Bequest in the books of the Synod. However at no stage was the site in fact devoted to the purposes of the Hospital by any utilization of the lands for those purposes. (at p368)

20. It was about this time that the scheme was conceived of moving St Martin's Hospital to a new site, the former St Clare's Home property in Taringa being thought to be a suitable site, and of demolishing all buildings between the Cathedral and Wharf Street pursuant to a plan to devote this area to a Cathedral Square. Plans to this end proceeded in conjunction with the Brisbane City Council. Planning continued through 1969 and 1970 and in late 1970 it was decided and announced that St Martin's Hospital would be closed on 30th June 1971. (at p369)

21. By then it had been decided not to use the St Clare land but to erect a new hospital at Zillmere. In view of some doubt expressed by Stable J. on the continued devotion of the Moretti Bequest to charitable purposes it should be stated that it does not appear that those doubts are well founded. St Martin's Hospital was an active charitable trust at the time of the testator's death, and the Moretti Bequest falls to be applied to the purposes of that charitable trust or if necessary cy-pres. However, any intention of applying the funds of that bequest to the St Clare lands as a purpose of St Martin's Hospital never came to fruition and those funds must be regarded as held intact by the Synod upon trust for St Martin's Hospital. In addition to these funds, there are accumulated funds of St Martin's Hospital amounting to some $272,000. These funds after the closure of the hospital were paid into court by the Sisters of the Sacred Advent who claim no interest in them and acknowledge that they are held upon the trusts of St Martin's Hospital. (at p369)

22. Although my conclusion in respect of the subject lands is similar to that of the trial judge I see difficulties in the approach adopted by him. His solution would only be correct if the Lesser Chapter had held the lands upon trusts which did not allow it to sell or otherwise deal with them. None of the lands were impressed with particular express trusts. (at p369)

23. What is claimed by the appellants is that the Pyrmont lands and the Frascati lands at least were sold by the Lesser Chapter to the charity constituted by St Martin's Hospital. The question is not whether a sale or appropriation of the lands would be a breach of any trust upon which the lands were held but whether the sale or appropriation was within the powers of the corporation. Since there were no express trusts over these lands created by any original donor thereof or declared or contained in any Act of Parliament in which the lands were specially mentioned, the Lesser Chapter had power pursuant to cl. 25 of the Cathedral Canon which incorporates the power of the Synod contained in s. 13 of the Church of England Act of 1895 and s. 2 of the Church of England Act of 1895 Amendment Act of 1901 to mortgage, charge, alienate or otherwise deal with and dispose of the lands. It is therefore not correct that because the lands may have been purchased for Cathedral purposes they were thereafter irrevocably devoted to those purposes. They could nevertheless be sold or otherwise dealt with by the Lesser Chapter. Paragraphs (a), (b) and (c) of Canon 39 deal with the application of Cathedral property in ways unrelated on the one hand to investment which is dealt with in par. (d), and on the other hand to sales or other dealings with Cathedral property in its general administration. If St Martin's Hospital is a separate charity and if the intention was to appropriate the land outright to it, the Lesser Chapter had power under cl. 25 of the Canon for full consideration in furtherance of that appropriation to declare that thereafter it would hold the property upon trust for the charitable object or body from whose funds the consideration came, namely, St Martin's Hospital. The position is complicated by the fact that the Lesser Chapter was also the trustee of St Martin's Hospital, but on the assumption that St Martin's Hospital was a separate charity which happened to have the same trustee of its funds as the trustee of property from which it is claimed that the property was purchased with those funds then, provided that the intention was clear, there was nothing to prevent the Lesser Chapter declaring that for the full consideration received the beneficial interest in the property would thereafter be held by it for the charity providing the purchase price. Consequent entries in the accounts of the Lesser Chapter, again assuming that St Martin's Hospital is a separate and distinct charitable trust, are therefore not merely internal bookkeeping records of the Lesser Chapter but are evidence of its actions and intentions in relation thereto respecting the distinct beneficiaries of which it was the trustee. It is only if St Martin's Hospital and its Building Fund do not constitute a charitable trust distinct from the Cathedral itself that it might correctly be said that the entries in the books of account of the Lesser Chapter do no more than express preferred internal accounting procedures. (at p370)

24. The questions which arise are first, whether St Martin's Hospital was a separate charity and secondly, if this question be answered in the affirmative, whether the lands were sold as alleged or were otherwise appropriated to the purposes of St Martin's Hospital, and, if so, the consequences thereof. (at p370)

25. I turn to the first question, whether St Martin's Hospital is, as a result of the circumstances of its founding, a separate charity. It is true that where a body of persons, corporate or unincorporate, holds land or buildings beneficially and uses them for a charitable purpose, for example, a hospital which is charitable, it does not thereby dedicate or appropriate the lands in perpetuity for that charitable purpose. It is at liberty to discontinue or to alter the charitable uses or purposes because such a charitable use, unless a charitable trust has been declared, is a private, not a public, use. Thus the Lesser Chapter, if it were otherwise within its power, might conduct a hospital on lands owned by it and it might at any time cease to conduct that hospital and apply the lands to other purposes; for the lands are never impressed with the public charitable purpose. (at p371)

26. However, the particular feature of the present case is that moneys raised from the public for the purposes of the hospital have been expended on the improvement of lands standing in the name of the corporation. That corporation happens to be a religious corporation and therefore its purposes are themselves primarily charitable but that is not immediately relevant. What must first be determined is whether the funds which were raised for the rebuilding of St Martin's Hospital were a gift to the corporation impressed with a trust for the application thereof to particular charitable purposes or were an absolute gift to the Lesser Chapter as a result of an appeal by the Lesser Chapter for funds based on its need for moneys in order to carry out a particular project or purpose. (at p371)

27. It is necessary to make clear this distinction between a gift to an institution impressed with a trust for the application thereof to particular purposes and an absolute gift to such an institution as a result for instance of an appeal by the institution for funds based on its need for moneys in order to carry out a particular project or purpose. The distinction is one which can be difficult in its particular application. Where the expressed purpose is not a charitable purpose the gift will fail if the purpose is held to create a trust unless the trust is found to be a private trust enforceable by the donor until the purpose has been achieved, but meanwhile revocable - the so-called trust of imperfect obligation where there is a resulting trust to the donor if the moneys are not expended. Such a gift may however be construed as an absolute gift motivated by the expressed intention of the institution. However, if the purpose of the gift is a charitable purpose, the charitable purpose will more likely than not impress the subject matter of the gift with a charitable trust. (at p371)

28. A further distinction needs to be borne in mind. A trust to a charitable institution such as a church of money or property for the improvement of the fabric of the church or some other purpose will in many instances be fully performed once the moneys have been so expended. There is no separate continuing trust of the improvements. The trustees of that property can deal with it in accordance with their powers appertaining to that property. However, where the purpose of the appeal is itself charitable and particularly where the purpose is identifiably distinct from a particular need of the institution which makes the appeal, then the moneys raised and the product thereof will be impressed with a continuing charitable trust for the purposes for which the moneys are so raised and the trust will be enforceable at the suit of the Attorney-General. (at p372)

29. In the present case the moneys were raised from the public for the erection of a new hospital, to be called St Martin's Hospital. It was to be on the site on which the old Pyrmont Hospital stood, an existing property and existing charitable activity of the Lesser Chapter. But the purpose of the appeal was not the mere renovation of the old hospital. The essence of the appeal was a new hospital, a hospital which would itself be a war memorial. The erection of such a hospital, intended to be supported by the payment of fees by patients, but one from which the poor were not excluded and which was not intended to be operated for commercial profit(In re Resch's Will Trusts (1969) 1 AC 514 ) and which was intended to make special provision for shell-shocked soldiers (cf. Verge v. Somerville (1924) AC 496 ) was a valid charitable purpose and was a purpose distinct from the general purposes of the Lesser Chapter. In my opinion the Lesser Chapter was in these circumstances distinctly a trustee of the funds so raised for that particular charitable purpose. (at p372)

30. In the circumstances I do not think that the trust was wholly performed when the moneys raised in the appeal were expended in the rebuilding of the hospital. If there had not previously been a hospital upon the site carried on by an order of the Church of England I do not think that there could be any doubt that the purpose of the trust was not only the building of the hospital but also the carrying on in the hospital when it was built of the charitable purpose for which it was built. I do not think that there is any different view open in the present case. The new hospital was in my opinion so distinct from the previous hospital that, although the appeal was for a rebuilding, the size of the contribution and the purpose stated in the appeal not only of building but also of conducting the hospital resulted in the conduct of the hospital being part of the charitable purpose. (at p372)

31. The duty of the Lesser Chapter was to apply the moneys for the purpose of rebuilding and, that having been done, to ensure so far as it could that the hospital was carried on for the purpose for which it was built. This does not mean that the Lesser Chapter was required itself to apply its funds or even to raise other funds for the purpose of carrying on the hospital. If the hospital could not be carried on the purpose failed, but there is no suggestion that it could not be carried on as a charitable undertaking until recent years. The Lesser Chapter was, of course, always until recent times and until the events which have led to the present proceedings, more than willing to carry out the terms of this trust; but if it had not been so willing then new trustees would have had to be appointed at the suit of the Attorney-General. If and when it became impracticable to carry on the hospital then in respect of all funds and property of the trust a cy-pres scheme would need to be settled but until then there was a duty to see that the trusts were carried into effect. (at p373)

32. It therefore becomes necessary to determine whether the corporation has wholly parted with its beneficial interest in the lands in favour of the charitable object St Martin's Hospital so that the lands are held in trust for that object. If it has not wholly parted with its beneficial interest, then it is necessary to determine what, if any, interest the charity has had in the lands upon which its funds have been expended. This question concerns mainly the Pyrmont lands and the Frascati lands. On both of them hospital buildings have been erected. The funds were originally raised in order to rebuild on the Pyrmont lands. They were not raised in order to purchase the Pyrmont lands. The latter were to be provided by the Lesser Chapter. There is no clear evidence that the whole beneficial interest in the lands was intended to be transferred outright to the charity St Martin's Hospital. On 26th October 1920 the Chapter resolved that the site known as Pyrmont be appropriated for the purposes of St Martin's Hospital. An amount of 3,958 pounds.11.10 was debited shortly afterwards to the Hospital Account and an amount of 4,000 pounds owing to the A.M.P. Society was later debited to the Hospital Account. Although an inference might be open that the whole beneficial interest in the land was intended to be transferred from the purposes of the Cathedral to the purposes of the hospital, it is slender evidence upon which to conclude that the Lesser Chapter in its capacity of trustee of Cathedral property intended unconditionally to relinquish in favour of the hospital trust all interest in the land. The Cathedral had a very great interest in ensuring that the Pyrmont lands were used only for the purposes of St Martin's Hospital being conducted upon that site. It had originally purchased the old hospital with a primary purpose of protecting the Cathedral against commercial development in such close proximity. In these circumstances despite the entries in the accounts it would be unsafe to draw the inference that the intention was to transfer the beneficial interest absolutely from the charitable object which was the Cathedral to the charitable object which was the hospital. (at p374)

33. There was however an appropriation of the land for the charitable object, St Martin's Hospital, for a limited duration, the limit being until St Martin's Hospital should cease to be conducted upon the site. There is nothing in law to prevent an appropriation of lands for charitable purposes of limited duration, with a reverter to the donor, conveyor or assignor as the case may be. See Bankes v. Salisbury Diocesan Council of Education Incorporated (1960) Ch 631 . It seems that the intention may be inferred from the circumstances. Cf. Gibson v. South American Stores (Gath and Chaves) Ltd. (1950) Ch 177 . In my opinion the circumstances of the appropriation of the Pyrmont Hospital site for the purposes of the new St Martin's Hospital pursuant to the resolution of the Lesser Chapter passed in October 1920 lead to the conclusion that upon a failure of those purposes the site should revert to the Cathedral. (at p374)

34. I now consider the Frascati property. On the facts which I have earlier set out it does not appear to me that any conclusion can be drawn that in 1934 and 1935 it was intended to transfer the whole beneficial interest in these lands to the St Martin's Hospital charity. Certainly the lands were intended to be used partly for purposes of the hospital but the intention remained that the lands should be laid out so that the grounds of the Cathedral itself should be enhanced. The debt on the property was transferred to St Martin's Hospital Account in 1934 and the account was transferred to the debit of St Martin's Hospital Building Fund, but, as in the case of the Pyrmont lands, this evidence is not sufficient to warrant a conclusion that the Lesser Chapter was doing more than appropriating so much of the Frascati lands as was needed for the purposes of the hospital and that when those purposes came to an end the lands would revert to the Lesser Chapter for its corporate purposes. (at p374)

35. As to the Wharf Street lands and the Eton House lands the evidence preponderates in favour of the view that, despite an initial intention to finance the purchases through or with the assistance of the Hospital Building Fund, the purchases and development proceeded as an activity of the Lesser Chapter little related to the hospital. There is not sufficient evidence upon which it could be concluded that there was any appropriation of these lands for the purposes of St Martin's Hospital. The particular feature of the Pyrmont lands and, to some extent, the Frascati lands that large sums of money were expended thereon for the purposes of St Martin's Hospital does not exist in the case of these lands. (at p375)

36. The result of the appropriation of the Pyrmont lands and at least part of the Frascati lands to the purposes of St Martin's Hospital and the subsequent building of the hospital on the Pyrmont lands and the subsequent extensions thereof on to the Frascati lands was that those lands were and remained appropriated to the purposes of the hospital so long as the hospital might be carried on in the buildings so erected. Thereafter the lands would revert to the Lesser Chapter as part of its corporate property. (at p375)

37. The appropriation was not in my opinion ultra vires the Lesser Chapter under Canon 39. The words "Cathedral purposes" are very wide. The question is not whether the carrying on of St Martin's Hospital was a Cathedral purpose. That does not need to be decided but I should not be taken to imply any view that it would not be such a purpose. The question is whether the Lesser Chapter had power to purchase and then appropriate land adjoining the Cathedral land for the purposes of a hospital when it was the desire of the corporation to ensure that the land did not become subject to undesirable commercial development and when the view was held by the corporation that the conducting upon the lands of a hospital regarded in law as charitable was a use of such adjoining lands suited to the environs of the Cathedral. In my opinion such a purchase and appropriation in those circumstances fell within the words "Cathedral purposes". A purpose of the Cathedral was thereby advanced. (at p375)

38. Upon the appropriation of the lands and upon the subsequent building of St Martin's Hospital thereon, the lands could not be withdrawn from the purposes of the hospital charity until the purposes should fail. This follows from an application of the principle stated in Ramsden v. Dyson (1866) LR 1 HL 129 . Stable J. found that the carrying on upon the present site of a hospital for the acutely sick, the purpose of its foundation, was at the time of its closure in 1971 and at the time of the trial quite impracticable. The resolution of this question depended upon the facts found and the evidence accepted by the trial judge. He has expressed his reasons for his conclusion in considerable detail and I do not propose to repeat those reasons. I find those reasons quite compelling, and, in any event, it was peculiarly a question for determination by the judge at first instance, depending largely upon his assessment of the various witnesses. No doubt the buildings could be used as a convalescent hospital or something of that kind but that was not the purpose for which the Lesser Chapter appropriated the lands. (at p376)

39. There is, therefore, a reverter of the lands to the Lesser Chapter as property of that corporation held by it for purposes within its constitution. Therefore the appeal fails in so far as the various lands are concerned. It does not however wholly fail. The conclusion expressed by the trial judge respecting the Moretti Bequest was wrong and it must be declared that the Synod holds the moneys which represent the funds of that bequest upon trust for the charity St Martin's Hospital and that the Lesser Chapter holds all moneys and property of St Martin's Hospital, including the moneys paid into court by the Sisters of the Sacred Advent in another action, upon the trusts of St Martin's Hospital. It would appear that an inquiry will be necessary upon the question of what otherwise are now the funds and property of the charity St Martin's Hospital and that a scheme will need to be settled for the application of those funds and that property cy-pres. These questions will no doubt be dealt with in the action by the Lesser Chapter against the Attorney-General which, it would appear, remains part heard before Stable J. (at p376)

40. There is also an appeal against the order of Stable J. that the relators pay the respondents' costs of the action. The allowance of the appeal to the extent of making the declarations proposed above does not decide matters upon which there was any issue raised by the respondents and would not itself warrant an alteration in the order for costs made by Stable J. However, the issues which were fought and determined by him were issues which needed to be determined by the Court in a contested action. If there had been no relators, the Attorney-General would have been obliged to raise for determination by the Court very many of the questions which were decided. The legal position in relation to the Pyrmont lands and the Frascati lands was not at all clear and the manner in which the Lesser Chapter failed to keep wholly separate in its accounts and other records its obligations as the corporation charged with the conduct of the affairs of the Cathedral and its obligations as trustee of the charity St Martin's Hospital added in no small measure to the lack of clarity. Moreover, the decision that it was no longer practicable to carry on St Martin's Hospital on its existing site was one which needed to be reached after the evidence for and against that conclusion had been advanced in a contested action, especially as the trustee, the Lesser Chapter, was concerned in its other corporate capacity in the decision and was therefore not able to be regarded as impartial and disinterested. The relators' action was probably the best way in which this very important question could be determined after exhaustive inquiry. In my opinion the relators ought not to have been ordered to pay the costs of the action. In the circumstances I think that the proper order for costs was that all parties have their costs out of the trust funds of the charity St Martin's Hospital. (at p377)

41. As to the costs of the appeal, it appears to me that the appellant relators have sufficiently succeeded to be entitled to some costs but it must be borne in mind that they have failed in the most substantial grounds of their appeal. In the circumstances the proper order for costs is that one-half of the costs of the appellants and the whole of the costs of the respondents be paid out of the trust funds of the charity St Martin's Hospital. (at p377)

MURPHY J. Although this appeal involves a church property dispute affecting others, it can be decided on neutral principles of property law without investigation of religious doctrine, practice or procedure. (at p377)

2. I agree with the conclusions Jacobs J. has reached and the orders he has proposed. (at p377)

3. THE COURT pronounced the following order:- (at p377)

Orders

The appeal dismissed in so far as it relates to the lands described in par. 19 (a) and 19 (c) of the amended statement of claim. The appeal is allowed in so far as it relates to the moneys described in par. 19 (b) of the amended statement of claim and to the costs of the action.

The order of the Supreme Court of Queensland in so far as it relates to such moneys and to the costs of the action set aside and in lieu thereof: (1), declare that the second defendant holds all moneys which represent the funds of the Moretti bequest upon trust for the charity, St Martin's War Memorial Hospital; (2), declare that the first defendant holds all moneys and property of St Martin's War Memorial Hospital, including the moneys paid into the Supreme Court by the Sisters of the Sacred Advent in action no. 783 of 1972 upon the trusts of St Martin's War Memorial Hospital; (3), liberty to apply for any necessary accounts and inquiries and generally; (4), order that the costs of all parties to the action be paid out of the trust funds of the charity, St Martin's War Memorial Hospital, and that one half of the costs of the appellants and the whole of the costs of the respondents in the appeal to be paid out of the trust funds of the charity, St Martin's War Memorial Hospital.