Diane Allen v Attorney General of NSW

[2016] NSWSC 579

Supreme Court

New South Wales

Medium Neutral Citation:	Diane Allen v Attorney General of NSW [2016] NSWSC 579
Hearing dates:	28 April 2016
Date of orders:	28 April 2016
Decision date:	28 April 2016
Jurisdiction:	Equity
Before:	Young AJ
Decision:	1. On the true construction of the will dated 9 February 1999 of the late Anna Rutherford who died on February 21 2001 the gift by the said Anna Rutherford in cl 6 of that will to the Newcastle Mater Misericordiae Cancer Research Fund 1 is a gift to the entity now known as the Calvary Mater Hospital Newcastle for the purposes served by the Oncology Research Fund maintained by that entity. 2. Pursuant to s 63 Trustee Act 1925 (NSW) the plaintiffs are justified in distributing the net residuary estate of the Deceased to the Oncology Research Fund at the Calvary Mater Hospital Newcastle in accordance with the terms of the will. 3. Order that the plaintiffs’ costs and the defendant’s costs be paid from the Estate on the indemnity basis.
Catchwords:	CHARITY – Beneficiary an unincorporated fund – Fund a special purpose fund equivalent to a trust fund administered by corporate hospital – Fund misnamed – Hospital takes gift on trust
Category:	Principal judgment
Parties:	Plaintiff – Diane Allen Defendant – Attorney General of NSW
Representation:	Counsel: Ms P Lane (Plaintiff) Ms G Mahony (Defendant)   Solicitors: Osborn Law (Plaintiff) Crown Solicitor for NSW (Defendant)
File Number(s):	2015/00209545

ex tempore Judgment

1. HIS HONOUR: The present case concerns the true construction of the Will of Anna Rutherford which was made and published on 9 February 1999, probate of which was granted on 28 March 2001. Professor Rutherford died on 21 February 2001. The reason why it has taken so long for the estate to be finalised was that the deceased was involved in litigation which possibly would return her estate a large sum of money and it has taken time for that litigation to be resolved.

2. The evidence shows that the testatrix died without any next of kin so that if the gift that I am about to consider fails, the estate funds of approximately $700,000 will fall in as bona vacantia.

3. The Will provides in cl 3 that the trustees are to hold $50,000 for Sister Patricia Bundock for life with power to resort to capital, and any surplus is to go upon trust for the Newcastle Mater Misericordiae Cancer Research Fund at Newcastle. The residue under cl 6 is to be held upon trust for the Newcastle Mater Misericordiae Cancer Research Fund at Newcastle.

4. There is a considerable amount of evidence about the Mater Misericordiae Hospital and it does take a while to follow it through, but when one does, one finds that there is no real problem at all. There are just a series of changes of name.

5. The Sisters of Mercy established the Newcastle Mater Hospital in 1921. In 1986 the annual return of the hospital showed that they had an Oncology Research Fund as a Special Purpose and Trust Fund, and in 1993 the Oncology Research Fund was formally established. Such a fund therefore existed at the date of the testatrix's death as well as at the date of her Will.

6. The Sisters of Mercy, so far as this hospital is concerned, became incorporated in 1998 as Mercy Health Care (Newcastle) Ltd. However, they adopted the trading name Newcastle Mater Misericordiae Hospital certainly by 2000. There is evidence before the Court of local newspapers in the period, including the period 1999 to 2003, all of which refer to this hospital as the Mater. So it is quite clear that there was a hospital called the Mater Misericordiae Hospital Newcastle and that hospital was being conducted by Mercy Health Care (Newcastle) Ltd, which later changed its name to Calvary Health Care (Newcastle) Ltd. However, the hospital has always been under the same proprietorship.

7. The fund is a Special Purpose Fund. It is not a trust fund in the technical sense because there is no trustee. However, it is administered by the hospital so that for most purposes it is in the same plight as a trust fund. The evidence shows that if a person gives money to a health organisation for a specific purpose and the money goes into the fund, the institution is legally bound to apply those moneys for that specific purpose unless the donor consents or the Court or the Commissioner of Dormant Funds, who is now the Chief Executive Officer of the NSW Public Trustee & Guardian or the Attorney-General, consents otherwise.

8. If there is a gift to the Mater Hospital Cancer Research Fund and one takes the view, as I do on the evidence, that that is merely a misnomer of the Oncology Research Fund, then there is a gift to Calvary Health Care Newcastle Ltd on (quasi) trust for the Oncology Research Fund.

9. Normally, a gift to an unincorporated fund would be ineffective. However, when one sees the full scene, it is apparent that the testatrix meant to give her money to the proprietor of the Mater Hospital on trust for cancer research and nominated the Oncology Research Fund as the medium to let this happen.

10. Accordingly, on the true construction of the Will and in the events which have happened, the gift of Anna Rutherford in cl 6 of her Will is a gift to that company on that trust.

11. The case had been a bit complicated. The summons was filed in July 2015 because it was difficult for the trustees to get sufficient information out of the hospital. The reason for that became apparent, but we need not go into it. When, however, all the details did come in, and they were put on affidavit, it was quite clear that this was a relatively simple case and that the testatrix had made her position quite clear. However, I should note that although there was some evidence from the solicitor who made the Will that the testatrix was very definite as to this particular gift, it may well be that that was technically speaking inadmissible, and I merely regarded it as background material. Once all the material was before the Court it was clear that the result was as I have indicated.

12. I do thank counsel for their deep research into the problem, both Ms Lane for the Plaintiff and Ms Mahony for the Attorney-General. The Attorney-General took the view that she did not oppose the money going in the way in which I have held the Will requires. Accordingly, I make orders in accordance with the short minutes which I have initialled and dated and will remain with the papers. But I have changed order 3 to say "and the defendant’s costs". They both should be paid out of the estate.

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Decision last updated: 09 May 2016