Charities—Charitable purpose—Trusts to establish and maintain home for homeless, stray and unwanted animals—Construction—Validity—Practicability of trusts—Test for determining practicability—Cy-pres application. Rule against Perpetuities—Power to postpone carrying out of trusts until sufficient funds accumulated—Whether rule infringed—Costs.

Decisions

1964, February 25.
The following written judgments were delivered:-
DIXON C.J. This appeal from the Supreme Court of South Australia arises out of proceedings by way of originating summons dealing with the provisions of the will of the late May Annie Sarah Hodge, formerly of 3 Esplanade, Somerton Park. The late Mrs. Hodge died a widow on 30th October 1957. Her last will was dated 23rd November 1951 and was duly admitted to probate. Bagot's Executor and Trustee Company Limited was the sole executor and trustee and that company is the plaintiff in the originating summons. Mrs. Hodge died at the age of seventy eight. She had no children. The nearest next of kin appeared to be the defendant, Harry Midwinter Bray, a first cousin, and another first cousin, Olive Hornabrook. An order was made appointing the defendant Harry Midwinter Bray to represent the next of kin of the testatrix for the purpose of the proceedings and dispensing with service upon any other person. Apparently nothing else is known of the next of kin of the testatrix. The deceased had a brother, however, and he left a widow but there appear to have been no issue. (at p409)

2. The will of the testatrix after the usual clauses, including the appointment of the executor and trustee, directed that the trustee stand possessed of her estate upon the following trusts: "(a) To purchase and properly equip a home for the purpose of the maintenance and care of or for otherwise mercifully and kindly dealing with homeless, stray and unwanted animals (b) to invest the balance of such estate and to apply the income thereof for the permanent upkeep including wages of the aforesaid home (4) I empower my trustees to postpone the carrying out of the trusts contained in sub-paragraphs (a) and (b) of paragraph three hereof for such period as shall be necessary in order to accumulate a fund sufficient in the opinion of my trustees to carry out the trusts contained in sub-paragraphs (a) and (b) of paragraph three hereof and for this purpose to capitalize the net income of my estate during such period of postponement. (5) I empower my trustees to postpone the realization of my estate for such period or periods as they in their discretion shall think fit." The remainder of the will dealt only with the form of investments and estate, succession and other death duties, and so far as I can see nothing turns on it here. (at p410)

3. The originating summons was issued on 6th May 1959 by the executor and the defendants joined were simply the Attorney-General and Harry…

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.

Continue reading Attorney-General (SA) v Bray

Details

AGLC: Attorney-General (SA) v Bray [1964] HCA 3
Case: [1964] HCA 3
Decision Date: 25 February 1964

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Attorney-General of South Australia against a decision of the Supreme Court of South Australia concerning the validity of a regulation made under the *Land Tax Act 1936* (SA). The dispute centred on whether the regulation, which purported to prescribe a method for valuing land for the purposes of land tax, was a valid exercise of the power conferred by the Act.

The primary legal issue before the High Court was whether the regulation was *ultra vires* the powers granted to the Governor-in-Council by section 174 of the *Land Tax Act 1936* (SA). Specifically, the Court had to determine if the regulation, by prescribing a specific method of valuation that differed from the general principles of valuation set out in the Act, exceeded the scope of the legislative authority delegated by Parliament.

The Court reasoned that the power to make regulations under section 174 was intended to supplement and facilitate the operation of the Act, not to alter or override its substantive provisions. It was held that the regulation, by dictating a particular valuation method that could lead to a different outcome than that achieved by applying the Act's general valuation principles, effectively amended the Act itself. This was considered an improper exercise of the regulation-making power, as it encroached upon the legislative function reserved for Parliament. The Court applied the principle that subordinate legislation must be consistent with the principal Act under which it is made.

The appeal was allowed, and the regulation was declared invalid.

Orders