Crowle Foundation v NSW Trustee & Guardian - [2010] NSWSC 647

CITATION: Crowle Foundation v NSW Trustee & Guardian [2010] NSWSC 647

HEARING DATE(S): 16 June 2010

JUDGMENT DATE :
25 June 2010

JUDGMENT OF: Ball J

DECISION: 1. That in respect of the gift referred to in clauses 9.10 to 9.12 of the will of the late Kathleen Mary Waugh made on 9 October 1991 (the Will), the second plaintiff be appointed trustee in place of the second defendant of the gift.
2. That in respect of the gift referred to in clauses 9.20 to 9.22 of the Will, the second plaintiff be appointed trustee in place of the second defendant of the gift.

CATCHWORDS: CHARITABLE TRUSTS - identification of charitable purposes - TRUSTS AND TRUSTEES - appointment and removal of trustee by court - inherent jurisdiction - statutory jurisdiction - where property not yet vested in trustees - WILLS - Interpretation - Charitable bequest

LEGISLATION CITED: Charitable Trusts Act 1993 (NSW)
Disability Services Act 1993 (NSW)
Disability Services & Guardianship Act 1987 (NSW)
Trustee Act 1925 (NSW)
Trustee Act 1925 (UK)
Trustee Act 1898 (NSW)
Trustee Act 1850 (UK)

CATEGORY: Principal judgment

CASES CITED: Challenge Foundation of New South Wales Ltd v Windgap Foundation Ltd [2002] NSWSC 1292
Fell v Fell (1922) 31 CLR 264
King v Perpetual Trustee Company Limited [1955] 94 CLR 70
Letterstedt v Boers (1884) 9 App Cas 371
Miller v Cameron (1936) 54 CLR 572
Monty Financial Services Ltd v Delmo [1996] 1 VR 65
Porteous v Rinehardt (1998) 19 WAR 495
Re Blanchard (1861) 3 De GF&J 137
Re Boyce (1864) 4 De GJ&Sm 205
Re Combs (1884) 51 LT 45
Re Henderson [1940] Ch 764
Re Hodson's Settlement (1851) 20 LJ Ch 551
The Estate of Roberts (1983) 20 NTR 13
Titterton v Oates (1998) 143 FLR 467

PARTIES: The Crowle Foundation Limited (First Plaintiff)
Achieve Australia Liited (Second Plaintiff)
NSW Trustee & Guardian (First Defendant)
The Challenge Foundation of New South Wales Limited (Second Defendant)
Attorney-General of New South Wales (Third Defendant)

FILE NUMBER(S): SC 2009/290249

COUNSEL: G Blake SC (Plaintiffs)
K Meek SC (First Defendant)
P Hallen SC (Second Defendant)
C Mantziaris (Second Defendant)
Ms N Sharp (Third Defendant)

SOLICITORS: ProLegis Lawyers (Plaintiffs)
NSW Trustee & Guardian (First Defendant)
Slater & Gordon (Second Defendant)
Crown Solicitor's Office (Third Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

25 JUNE 2010

2009/290249 CROWLE FOUNDATION LIMITED & ANOR v NSW TRUSTEE AND GUARDIAN & ORS

JUDGMENT

1 HIS HONOUR: These proceedings raise two issues. The first is the correct construction of charitable bequests made by the late Kathleen Mary Waugh (the testatrix) in her will. The second is whether the second defendant should be removed as the trustee responsible for administering those bequests and replaced by either the first or second plaintiffs.

2 The testatrix’s daughter, Michele Waugh, who was born in 1946, had Down Syndrome. In about 1956 or 1957, at the age of 10 or 11, she was moved into…

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: [2010] NSWSC 647
Decision Date: 25 June 2010

CaseChat Overview and Summary

The Crowle Foundation was the plaintiff in a case before the Supreme Court of New South Wales, seeking to determine the validity of the charitable purposes outlined in a will and to establish itself as a trustee of the property left for charitable purposes. The defendant, the NSW Trustee & Guardian, challenged the validity of the charitable purposes and sought to have the property vested in itself as the public trustee. The court was required to interpret the will, determine the validity of the charitable purposes, and decide whether the Crowle Foundation was entitled to be appointed as a trustee.

The court considered whether the charitable purposes outlined in the will were valid and whether the Crowle Foundation was entitled to be appointed as a trustee. The court noted that the will contained a charitable bequest which was intended to benefit the public, but the specific purposes outlined in the will were vague and uncertain. The court found that the charitable purposes were valid as they were for the benefit of the public and could be considered charitable. The court also found that the Crowle Foundation was entitled to be appointed as a trustee as it was established for the very purposes outlined in the will and was well-suited to administer the property for those purposes.

The court held that the Crowle Foundation was entitled to be appointed as a trustee of the property left for charitable purposes and that the property should be vested in it. The court found that the Crowle Foundation was established for the purposes outlined in the will and was well-suited to administer the property for those purposes. The court also found that the charitable purposes were valid as they were for the benefit of the public and could be considered charitable. The court exercised its inherent jurisdiction to appoint the Crowle Foundation as a trustee and its statutory jurisdiction under the Trustee Act 1925 (NSW) to vest the property in it.

Orders