Fielding v Houison - [1908] HCA 81

FIELDING AND ANOTHER

APPELLANTS;

HOUISON AND OTHERS

RESPONDENTS.

TOVEY AND OTHERS

HOUISON AND OTHERS

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF Trusts of St. Phillip's glebe-Disposition - of surplus rents and profits - Endowment

of other Churches-Irrevocable appointment-Express trusts-Church of Eng- land Act, 8 Wm. IV. No. 5, sec. 21-Constitutions of the Church of England (N.S.W.) 1866-Sydney Church Ordinance 1891, Art. 34-Church Acts Re- pealing Act (N.S.W. 1897.

In 1862 certain lands were granted by the Crown to trustees upon trust for appropriation as the glebe annexed to St. Phillip's Church of England, Sydney, in conformity with the provisions of the Acts 8 Wm. IV. No. 5 and 21 Vict. No. 4, so far as they applied to the trusts of the grant. Under sec. 21 of that Act, the trust for the application of surplus rents was as follows -- and so often as the rents issues and profits of any such glebe

7 CLR 394

lands so let by the trustees will admit thereof upon trust with the consent of the Bishop in manner aforesaid to apply the same in or towards the building of other such Churches or Chapels and houses of residence for clergymen and endowing the officiating minister thereof respectively to the extent of £100 yearly as aforesaid." The lands were let, and always produced a considerable income. The trustees, after satisfying the claim of the principal Church, St. Phillip's, and assuming to act under the powers conferred by sec. 21 of the 8 Wm. IV. No. 5, applied a portion of the rents towards building a new Church in the same parish and paying the officiating minister for the time being a certain sum annually by way of stipend, and subsequently at various times appropriated portions of the surplus rents to the purpose of building other Churches. They also resolved, with the consent of the Bishop, that those Churches should be endowed with certain annual payments towards the stipend fund. The intention of the trustees was, so far as was in their power, to create in favour of the officiating ministers a perpetual endowment.

Held (per Griffith C.J., Barton, O'Connor and Isaacs JJ.), that the effect of sec. 21 of the 8 Wm. IV. No. 5 was that the glebe lands were held in trust for the permanent endowment not only of the principal Church, but also of the officiating ministers of the several Churches which, by the action of the trustees, were brought within the trust, the effect of such action being in the nature of an appointment under a power, so that when the officiating minister of a new Church was endowed an express and irrevocable trust to pay that endowment after satisfying prior trusts attached to the rents and profits just as fully as a trust to pay the first £150 to the minister of the principal Church was attached by the Act itself, notwithstanding any change in the persounel of the clergy, and these trusts were…

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 Fielding v Houison

Details

AGLC: Fielding v Houison [1908] HCA 81
Case: [1908] HCA 81
Decision Date: 9 December 1908

CaseChat Overview and Summary

The case of *Fielding v Houison* concerned appeals from a decision of the Chief Judge in Equity of the Supreme Court of New South Wales regarding the disposition of rents and profits from glebe lands annexed to St. Phillip's Church, Sydney. The suit was initiated by the trustees of these glebe lands seeking a declaration of their duties. The primary dispute involved the claim by certain officiating ministers of other churches that they were entitled to receive annual payments from these surplus rents by way of stipend, which they argued constituted a perpetual endowment.

The central legal issue before the High Court of Australia was the interpretation of section 21 of the *Church of England Act 1837* (8 Wm. IV. No. 5). Specifically, the court had to determine whether the provisions within section 21, which allowed for the application of surplus rents towards building other churches and endowing their officiating ministers to the extent of £100 yearly, created irrevocable trusts for those ministers. A further issue was whether subsequent legislation, namely the *Sydney Church Ordinance 1891* and the *Church Acts Repealing Act 1897*, affected these trusts.

A majority of the High Court, comprising Griffith C.J., Barton, O'Connor, and Isaacs JJ., held that section 21 of the 1837 Act intended for the glebe lands to be held in trust for the permanent endowment of officiating ministers of churches that the trustees, with the Bishop's consent, brought within the trust. The Court reasoned that the act of endowing a minister under this section was akin to an appointment under a power, creating an express and irrevocable trust for that endowment, irrespective of any changes in the clergy. This interpretation was considered to be consistent with the historical understanding of "glebe" and "endowment" in the context of the Church of England at the time of the Act's enactment. The majority further found that the *Sydney Church Ordinance 1891* and the *Church Acts Repealing Act 1897* did not invalidate or alter these pre-existing trusts, as the Synod's powers were limited by the Constitutions of the Church of England (N.S.W.) 1866, which prohibited the diversion of property subject to specific trusts.

The Court varied the decision of the Chief Judge in Equity. It was held that the appellants, representing the officiating ministers of churches that had been endowed, were entitled to have these payments continued as of right, as they constituted irrevocable trusts. The case of *Dunstan v. Houison* was overruled. However, there was a divergence of opinion on the validity of the *Sydney Church Ordinance 1891*, with some judges finding it invalid in its inception as it purported to alter existing trusts, while others considered it not invalid but its operation limited by existing express trusts.

Orders