Bodalla Aboriginal Housing Company Ltd v Eurobodalla Shire Council

The appeal concerned the Bodalla Aboriginal Housing Company Ltd (the appellant) and the Eurobodalla Shire Council (the respondent) regarding the appellant's liability for rates. The central dispute was whether the land owned by the appellant was exempt from council rates under section 556(1)(h) of the *Local Government Act 1993* (NSW), which provides an exemption for land owned and used by a public charity. This, in turn, hinged on whether the appellant itself could be properly categorised as a "public charity" for the purposes of the Act. The matter was heard in the Court of Appeal of New South Wales.

The court was required to determine two primary legal issues. Firstly, whether the appellant qualified as a "public charity" under section 556(1)(h) of the *Local Government Act 1993*. This involved considering whether the non-charitable objects listed in the appellant's memorandum of association were merely ancillary, incidental, dependent, or concomitant to its four stated charitable objects. Secondly, the court had to consider whether section 23 of the *Charitable Trusts Act 1993* (NSW) operated to excise any non-charitable or invalid purposes from the memorandum of association, thereby impacting the determination of the appellant's charitable status for the purposes of the *Local Government Act*. The court also considered whether regard could be had to the appellant's actual activities when its memorandum of association clearly set out its purposes and objects.

The Court of Appeal dismissed the appeal, upholding the primary judge's decision. The court reasoned that for the appellant to be considered a public charity under section 556(1)(h) of the *Local Government Act 1993*, all its objects must be charitable. It found that the memorandum of association contained non-charitable objects that were not merely ancillary or incidental to the charitable objects. The court also determined that section 23 of the *Charitable Trusts Act 1993* did not operate to sever the non-charitable objects from the memorandum in a way that would render the appellant a public charity for the purposes of the *Local Government Act*. Therefore, the appellant did not meet the criteria for a public charity and was not entitled to the rate exemption. The appeal was dismissed with costs.