IN THE ESTATE OF WACLAW FRANCISHEK OSINSKI (DECEASED)
[2014] SASC 89
•22 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
IN THE ESTATE OF WACLAW FRANCISHEK OSINSKI (DECEASED)
[2014] SASC 89
Judgment of The Honourable Justice Stanley
22 July 2014
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION - HOME MADE WILL
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - DESCRIPTION OF SUBJECT MATTER - GIFT OF RESIDUE OR ENTIRE ESTATE - WHAT PROPERTY INCLUDED
EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY - PETITION OR SUMMONS FOR ADVICE
CHARITIES - CHARITABLE GIFTS AND TRUSTS - VALIDITY AND PRACTICABILITY - PROPERTY SUBJECT TO CHARITABLE TRUST
Application for advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA) and s 60 Trustee Act 1936 (SA).
The testator, Waclaw Francishek Osinski (deceased), made his last will on 2 October 2007. The testator appointed the plaintiff as his executor. The testator died on 3 July 2012. The plaintiff was granted probate of the testator’s last will on 29 October 2012.
The testator prepared his last will himself. It is handwritten using a will kit. The will includes an additional page with the heading “additional notes for personal representative”. The additional notes give rise to a number of questions concerning the construction of the will. The Registrar of Probates concluded that the additional notes form part of the will and accordingly included them in the grant of probate. Given the questions raised by the additional notes, the plaintiff applied to the Court pursuant to section 69 of the Administration and Probate Act for advice or direction as to matters connected with the administration of the estate and the construction of the will.
The plaintiff further applies to the Court pursuant to section 69B of the Trustee Act to vary the terms of the charitable trust established pursuant to the testator’s will. The plaintiff proposes a trust variation scheme pursuant to section 69B of the Trustee Act to appoint new trustees to the trust and to provide for the establishment of a trust fund by the sale of the real estate comprising the assets of the trust. The proposed trust variation scheme is supported by the defendant. The scheme is also supported by the Attorney-General.
Held:
1. The real estate is to be dealt with in the terms of the additional notes (at [21] - [22]).
2. The terms of the additional notes establish a charitable trust (at [23] - [27]).
3. It is not reasonably practicable to apply the trust property in accordance with the original purposes of the charitable trust (at [43] - [44]).
4. The variation of the terms of the trust proposed in the trust variation scheme accord, as far as reasonably practicable, with the spirit of the trust established under the testator’s last will (at [45] - [46]).
Administration and Probate Act 1919 (SA) s 69; Trustee Act 1936 (SA) s 60, s 69B, referred to.
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; In the Matter of Australian Motors SA Pty Ltd Staff Superannuation Fund [2010] SASC 62; The Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531; Attorney-General (NSW) v Perpetual Trustee Co (Ltd (1940) 63 CLR 209, discussed.
Re Matthew (Deceased) [1951] VLR 226; Re Bryning (Deceased) [1976] VR 100, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Charitable Trust" and "Trust Variation Scheme"
IN THE ESTATE OF WACLAW FRANCISHEK OSINSKI (DECEASED)
[2014] SASC 89Testamentary Causes Jurisdiction
STANLEY J:
Introduction
The testator, Waclaw Francishek Osinski (the testator) late of Unit 1, 16 Essex Crescent, Croydon Park in the State of South Australia, made his last will on 2 October 2007. The testator appointed the plaintiff, Joseph Wladyslaw Wojcinski, as his executor. The testator died on 3 July 2012. The plaintiff was granted probate of the testator’s last will on 29 October 2012.
The testator’s last will appears to have been prepared by himself. It is handwritten using a will kit. Clause 5 of the will states:
General gifts: I give all my personal and household effects as follows:
From Commonwealth Bank 7651395011063 Pensioner Security Account and Polish Community Credit Union Ltd Account to Lowitja O’Donoughe [sic] solely member no. 1394.
Clause 7 of the will provides:
Residuary Estate: I give my entire residuary estate as follows:
And contents solely to Professor Lowitja O’Donoghue although if Professor Lowitja O’Donoghue shall predecease me, I give my entire residuary [sic].
Clause 7 of the will is incomplete. The reasons behind this are explained in the first affidavit of the plaintiff who deposes to a discussion with the testator at the time the testator was drafting the will, during which they discussed what should occur in the event that Professor O’Donoghue predeceased the testator. The testator indicated an intention to leave his residual estate in those circumstances to Professor O’Donoghue’s children. The testator commenced to draft the will accordingly, however, he stopped when he realised he did not know the position in relation to her children. He asked the plaintiff to make enquiries. The plaintiff did so and ascertained that Professor O’Donoghue did not have any children. He duly informed the testator of this fact. It appears that the testator did not revisit clause 7 subsequently. He left it uncompleted.
On page 25 of the will under the heading “Additional notes for personal representative” the testator wrote:
My instructions to Wladyslaw Wojcinski. W.F. Osinski of 1 / 16 Essex Cres, Croydon Park 5008, bequeath the whole property at the above address to be used part to rise [sic] money and part to provide accommodation for Aboriginal student [sic].
Beneath the additional notes, the testator has signed his name and handwritten the date 2 October 2007. The additional notes were not witnessed by the original witnesses to the will or by the plaintiff subsequently.
The grant of probate of the will included the additional notes. I am satisfied this is correct. The additional notes form part of the will. The additional notes are in the same handwriting as the rest of the will, they are signed and dated by the testator.
At the time of his death the testator had four separate bank accounts, namely:
1.Commonwealth Bank Term Deposit Account No. 5139 5017 1069, in the amount of $65,568.84, which at 3 July 2012 had accrued interest in the amount of $440.12;
2.Commonwealth Bank Pensioner Security Account No. 7651 3950 11063, in the amount of $981.75;
3.Community CPS Australia Retirement Account No. 0333 5979, in the amount of $408.30; and
4.Community CPS Australia Investment Account No. 1230 26456, in the amount of $23,895.28.
The Commonwealth Bank Pensioner Security Account No. 7651 3950 11063 is specifically referred to in clause 5 of the will.
The Polish Community Credit Union Ltd, referred to in clause 5 of the will, merged with the Community CPS Australia Credit Union in May 2009. The Community CPS Australia Credit Union, in turn, became a mutual bank and commenced trading as Beyond Bank Australia from 1 August 2013.
At the time of his death the testator was also the registered proprietor of the whole of the land comprised in Certificate of Title Register Book Volume 5603 Folio 850, comprising four residential units situated at 16 Essex Crescent, Croydon Park in the State of South Australia.
According to the statement of assets and liabilities, the most recent Valuer-General’s capital valuation valued the real estate as a whole in the sum of $630,000.
Apart from the real estate and the monies held in his bank accounts, the testator made a specific bequest of his books to the Dom Polski Centre Library.
The principal beneficiary of the estate is the defendant, Professor O’Donoghue. She is a distinguished Australian. Professor O’Donoghue is a Yankunytjatjara person of north-west South Australia. She was born in 1932 at Granite Downs (otherwise known as Indulkana), near Oodnadata in South Australia. In the 1950s she qualified as the first indigenous nurse in South Australia and worked at the Royal Adelaide Hospital. In 1962 she joined the South Australian Public Service, working with the Department of Education. In 1967 she joined the Commonwealth Public Service in the newly formed Department of Aboriginal Affairs. In 1975 she became the director of the Department’s office in South Australia.
In 1990 she was appointed as the inaugural chairperson of the Aboriginal and Torres Strait Islander Commission (ATSIC) and held that position until 1996. The defendant was inducted as a Member of the Order of Australia in 1976, the first indigenous woman to be so honoured. In 1999 she was made a Companion of the Order of Australia. She is widely recognised throughout Australia for her leadership in Aboriginal and indigenous affairs, and has been the recipient of many awards and honours.
The defendant did not know the testator. She first became aware of him in August 2012 upon receipt of a letter from the plaintiff’s solicitor informing her that she was named as a beneficiary in the testator’s will.
It is apparent from the affidavit of the plaintiff that the testator held the defendant in high regard. The testator was a man of compassion and sympathy for the disadvantaged. He had been deeply affected by his observations of the suffering of the Jews and Romani people during the Nazi occupation of Poland in World War II. He thought that the Aboriginal people were disadvantaged and he trusted in the wisdom of the defendant to use the proceeds of his estate to help relieve their disadvantage.
Application pursuant to s 69 of the Administration and Probate Act
The terms of the “Additional notes for personal representative” give rise to a number of questions concerning the construction of the will. The Registrar of Probates concluded that they form part of the will and accordingly included them in the grant of probate. Given the questions raised by the additional notes, the plaintiff has applied to the Court pursuant to s 69 of the Administration and Probate Act 1919 (SA) for advice or direction as to matters connected with the administration of the estate and the construction of the will. The advice or direction has been sought by reference to the following series of questions:
(a)Which, of the assets in the deceased estate:-
(i) fall into and form part of the residuary estate of the deceased to be dealt with in accordance with clause 7 of the will which relevantly provides "Residuary Estate: I give my entire residuary estate as follows: and contents solely to Professor Lowitja O'Donoghue although if Professor Lowitja O'Donoghue shall predecease me, I give my entire residuary" ?
(ii) are to be dealt with in accordance with the Additional Notes in the will of the deceased which relevantly provides "My instructions to Wladyslaw Wojcinski. W.F. Osinski of 1/16 Essex Crs. Croydon Park 5008 bequeath the whole property at the above address to be used part to rise money and part to provide accommodation for aboriginal student." ?
(b)Is the real estate owned by the deceased and situated at 16 Essex Crescent Croydon Park in the State of South Australia ("the real estate") to be dealt with:-
(i) in accordance with clause 7 of the will;
(ii) in accordance with the Additional Notes;
(iii) in accordance with clause 7 and the Additional Notes?
(c)In the event that the real estate is to be dealt in accordance with clause 7, is Lowitja O'Donoghue ("Ms O'Donoghue") entitled to the real estate
(i) absolutely? or
(ii) as trustee of some, and if so what, trust?
(d)In the event that the real estate is to be dealt with in accordance with the Additional Notes do the provisions of the Additional Notes:-
(i) constitute an absolute gift of the real estate to Ms O'Donoghue? or
(ii) constitute Ms O'Donoghue as the trustee of some (and if so what) trusts with respect to the real estate?
(iii) constitute the Plaintiff as the trustee of some (and if so what) trust with respect to the real estate?
(e)In the event that the real estate is to be dealt with in accordance with clause 7 and the Additional Notes do those provisions:-
(i) constitute an absolute gift of the real estate to Ms O'Donoghue? or
(ii) constitute Ms O'Donoghue as the trustee of some (and if so what) trusts with respect to the real estate?
(iii) constitute the Plaintiff as the trustee of some (and if so what) trust with respect to the real estate?
(f)Do the provisions of :-
(i) clause 7;
(ii) the Additional Notes;
(iii) Clause 7 in conjunction with the Additional Notes
create a valid charitable trust?
(g)If the provisions of the Additional Notes create a valid charitable trust:-
(i) what asset or assets are the subject of that charitable trust?
(ii) who is the trustee of the charitable trust?
(iii) who or what are the charitable purposes of the trust?
(h)Do the words in the Additional Notes namely "to be used part to rise money" empower the trustee:-
(i) to borrow money by way of mortgage secured against the title with respect to the real estate?
(ii) to lease or let the real estate to an Aboriginal student or students?
(iii) to lease or let the real estate to a non Aboriginal student or students?
(iv) to sell the real estate?
(v) to purchase another property?
(i)Do the words namely "to provide accommodation for Aboriginal student" empower the trustee:-
(i) to provide accommodation for one Aboriginal student only?
(ii) to provide accommodation for one Aboriginal student at any one time?
(iii) to provide accommodation to one or more Aboriginal students at any given time?
In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand[1] the High Court considered the operation of statutory provisions such as s 69 of the Administration and Probate Act 1919[2] where an application was made to the Court for advice or directions to be given to a trustee or executor. In their joint judgment, Gummow ACJ, Kirby, Hayne and Heydon JJ set out the approach to be taken to the exercise of the Court’s power to advise or give directions, which is helpfully summarised by Gray J in the matter of Australian Motors SA Pty Ltd Staff Superannuation Fund[3] in the following terms:
[1] [2008] HCA 42, (2008) 237 CLR 66.
[2] In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocese of Australia and New Zealand the relevant provision was s 63 of the Trustee Act 1925 (NSW).
[3] [2010] SASC 62 at [12].
The other members of the Court, Gummow ACJ, Kirby, Hayne and Heydon JJ, in their joint judgment, undertook a detailed analysis of the progenitor United Kingdom provisions. In the course of their reasons a number of general propositions were identified and discussed, including the following important propositions:
·Provisions conferring powers to the court are not to be subject to implied limitations.
·Section 63 contained no implied limitations on the power to give advice.
·The only jurisdictional bar to relief pursuant to section 63 or its equivalent, is that the applicant must point to the existence of a question respecting the management or administration of trust property or a question respecting the interpretation of the trust instrument.
·Nothing in section 63 limits or mandates consideration of discretionary factors.
·The procedure pursuant to section 63 and its equivalents is summary in character.
·The provisions operate as an exception to the Court's ordinary function of deciding disputes between competing litigants as they afford a facility of giving “private advice” as the function of the advice is to give personal protection to the trustee.
·Section 63(2) precludes any trustee, who acts in accordance with the private advice, from being held liable for breach of trust in the event that in conventional proceedings it is later held that the legal position does not correspond with the advice given, so long as the proviso to section 63(2) is satisfied.
·The application of section 63 will tend to vary with the type of trust involved and as a consequence the context of the application for advice will be important.
·Section 63 has a relationship to rights of indemnity. Provision is made for a trustee to obtain judicial advice about the prosecution or defence of litigation in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties. Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation. No less importantly, however, resolving those doubts means that the interests of the trust will be protected; the interests of the trust will not be subordinated to the trustee's fear of personal liability for costs.
The first matter to be addressed pursuant to s 69 of the Administration and Probate Act is whether any of the funds held in the various bank accounts in the testator’s name at the time of his death formed part of his residuary estate. In my view the Commonwealth Bank Pensioner Security account No. 7651 3950 11063 and the funds held in the two Community CPS Australia accounts which are now accounts in Beyond Bank Australia, constitute specific bequests made pursuant to clause 5 of the will. I am satisfied that, while the will duly refers to a Polish Community Credit Union Account, the testator intended to gift all funds he held in that financial institution to the defendant. Accordingly, these funds do not form part of the residuary estate. However, the funds held in the Commonwealth Bank term deposit account No. 5139 5017 1069 form part of the residuary estate of the testator to be disposed of in accordance with the provisions of clause 7 of the will. The failure to refer expressly to the funds in this account in clause 5 leads to the inevitable conclusion they must fall into the residuary estate. In any event, the issue is merely academic. Whether dealt with pursuant to clause 5 or clause 7, the testator made an unconditional gift of these funds to the defendant.
On the other hand, I am satisfied that the real estate at 16 Essex Crescent, Croydon Park, does not form part of the residuary estate. While the terms of the additional notes might be construed as referring to only Unit 1, I am satisfied that this would not reflect the testamentary intention of the testator. I am satisfied that when he referred to the whole of the property at the above address he intended to refer to all the units he owned at 16 Essex Crescent, Croydon Park, and not solely to the unit in which he resided. It is unlikely that the testator would use the expression “the whole property” if he was referring only to Unit 1, so as to apparently delineate between the whole as distinct from a part interest in the land on which Unit 1 is erected. Further, it is unlikely that, in seeking to give effect to the trust, the testator would have simply bequeathed one of the four units at 16 Essex Crescent to the charitable trust with the balance of the units falling into the residuary estate.
Accordingly, the real estate (the trust property) is to be dealt with in accordance with the terms of the additional notes.
I am satisfied that the terms of the additional notes establish a charitable trust appointing the plaintiff as trustee. Notwithstanding the limits to the testator’s proficiency in expressing himself in written English, I am satisfied that his intention to create a charitable trust for the benefit of Aboriginal students is reasonably clear on the face of the express terms of the additional notes. This conclusion is supported by the affidavit of the plaintiff sworn 2 August 2013 to which I have referred earlier. The testator’s intention was to provide support for the education of Aboriginal students including by way of the provision of accommodation to such students, for the purposes of undertaking their education and study.
I am satisfied this is a charitable purpose.
In The Commissioners for Special Purposes of Income Tax v Pemsel[4] Lord Macnaghten classified charitable trusts into four categories:
1.The relief of poverty;
2.The advancement of education;
3.The advancement of religion; and
4.Other purposes beneficial to the community not falling into any of the preceding categories.
[4] [1891] AC 531 at 583.
The purpose of the charitable trust established by the additional notes falls into the second category in Pemsel’s case. In any event, I note that a trust created for the benefit of indigenous people has been upheld as charitable on the basis that it falls within the fourth category in Pemsel’s case.[5]
[5] Re Mathew (Deceased) [1951] VLR 226; Re Bryning (Deceased) [1976] VR 100.
In my view, the testator’s intention in the additional notes in bequeathing the real estate to be used in part to raise money is to be understood to mean raising money for the purposes of educating Aboriginal students or for purposes that are incidental to that purpose and not for some other unspecified purpose. Further, I am satisfied that the objects of the charitable trust created by the testator are not limited to providing accommodation for Aboriginal students but extend to funding the education of Aboriginal students as well. I am satisfied that, while the terms of the additional notes might be thought somewhat imprecise, the terms are sufficient to identify the objects of the trust created. The failure to prescribe in any detail how the real estate might be used to raise money or provide accommodation does not render the trust invalid.
As Dixon and Evatt JJ observed in Attorney-General (NSW) v Perpetual Trustee Co (Ltd):[6]
If a wider purpose forms his substantial object and the directions or desires which cannot be fulfilled are but a means chosen by him for the attainment of that object, the Court will execute the trust by decreeing some other application of the trust property to the furtherance of the substantial purpose, some application which departs from the original plan in particulars held not essential and, otherwise, keeps as near thereto as may be.
[6] [1940] HCA 12, (1940) 63 CLR 209 at 225.
It is unnecessary to advise whether the provisions of clause 7 of the will, in conjunction with the additional notes, create a valid charitable trust given my view that a valid charitable trust is established solely by the terms of the additional notes.
I turn then to the advice sought in relation to the power of the trustee.
In my view, the trustee is empowered to borrow money by way of mortgage secured against the title of the real estate, although whether that is desirable in order to give effect to the trust’s objects, is open to question. Likewise, I am satisfied that the trustee is empowered to lease or let the real estate to an Aboriginal student or students. Again, a question arises as to whether that would be the most appropriate means to give effect to the trust’s objects. There are practical issues with the state of the units and their current suitability to accommodate Aboriginal students. That is an issue the plaintiff takes up in his application pursuant to s 69B of the Trustee Act 1936 (SA). I will come back to this. In my view, the trustee is not empowered, however, to let or lease the units to non-Aboriginal students. The use of the units to accommodate non-Aboriginal students would be outside the objects of the trust.
I am satisfied that the trustee is empowered to sell the real estate so as to raise funds to effect the charitable purpose for which the trust was created.
In my view, the trustee is empowered to purchase another property utilising funds generated by the sale of the existing real estate, but only if the purchased property is used for the purpose of accommodating Aboriginal students.
Finally, the terms of the trust do not empower the trustee to provide accommodation for a single Aboriginal student. The trustee is empowered to provide accommodation to more than one Aboriginal student at any given time.
Accordingly, I would give the following directions:
1(a) Which, of the assets in the deceased estate:-
(i) fall into and form part of the residuary estate of the deceased to be dealt with in accordance with clause 7 of the will which relevantly provides " Residuary Estate: I give my entire residuary estate as follows: and contents solely to Professor Lowitja O'Donoghue although if Professor Lowitja O'Donoghue shall predecease me, I give my entire residuary"?
All of the assets of the estate of the deceased except for the property at 16 Essex Crescent Croydon Park in the State of South Australia (ii) are to be dealt with in accordance with the Additional Notes in the will of the deceased which relevantly provides "My instructions to Wladyslaw Wojcinski. W.F. Osinski of 1/16 Essex Crs. Croydon Park 5008 bequeath the whole property at the above address to be used part to rise money and part to provide accommodation for aboriginal student."?
The property at 16 Essex Crescent Croydon Park aforesaid (b) Is the real estate owned by the deceased and situated at 16 Essex Crescent Croydon Park in the State of South Australia ("the real estate") to be dealt with:-
(i) in accordance with clause 7 of the will;
(ii) in accordance with the Additional Notes;
(iii) in accordance with clause 7 and the Additional Notes.
No
Yes
No(c) In the event that the real estate is to be dealt [with] in accordance with clause 7 is Lowitja O'Donoghue ("Ms O'Donoghue") entitled to the real estate
(i) absolutely? or
(ii) as trustee of some, and if so what, trust?
Not necessary to answer
(d) In the event that the real estate is to be dealt with in accordance with the Additional Notes do the provisions of the Additional Notes:-
(i) constitute an absolute gift of the real estate to the said Ms O'Donoghue? or
(ii) constitute Ms O'Donoghue as the trustee of some (and if so what) trusts with respect to the real estate?
(iii) constitute the Plaintiff as the trustee of some (and if so what) trust with respect to the real estate?
No
No
Yes, as trustee of a charitable trust to provide accommodation for Aboriginal students
(e) In the event that the real estate is to be dealt with in accordance with clause 7 and the Additional Notes do those provisions:-
(i) constitute an absolute gift of the real estate to the said Ms O'Donoghue? or
(ii) constitute Ms O'Donoghue as the trustee of some (and if so what) trusts with respect to the real estate?
(iii) constitute the Plaintiff as the trustee of some (and if so what) trust with respect to the real estate?
Not necessary to answer
(f) Do the provisions of :-
(i) clause 7;
(ii) the Additional Notes;
(iii) Clause 7 in conjunction with the Additional Notes
create a valid charitable trust?
No
Yes
No (except for the provisions of the Additional Notes)(g) If the provisions of the Additional Notes create a valid charitable trust:-
(i) what asset or assets are the subject of that charitable trust?
(ii) who is the trustee of the charitable trust?
(iii) who or what are the charitable purposes of the trust?
The property at 16 Essex Crescent Croydon Park aforesaid
The Plaintiff
To provide accommodation for Aboriginal students(h) Do the words in the Additional Notes namely "to be used part to rise money" empower of the trustee:-
(i) to borrow money by way of mortgage secured against the title with respect to the real estate?
(ii) to lease or let the real estate to an Aboriginal student or students?
(iii) to lease or let the real estate to a non Aboriginal student or students?
(iv) to sell the real estate?
(v) to purchase another property?
Yes
Yes
No
Yes
Yes, but only if used to accommodate Aboriginal students(i) Do the words namely "to provide accommodation for Aboriginal student" empower the trustee:-
(i) to provide accommodation for one Aboriginal student only?
(ii) to provide accommodation for one Aboriginal student at any one time?
(iii) to provide accommodation to one or more Aboriginal students at any given time?
No
No
Yes
Application pursuant to s 69B of the Trustee Act 1936 (SA)
The plaintiff further applies to the Court pursuant to s 69B of the Trustee Act to vary the terms of the charitable trust established pursuant to the testator’s will to appoint new trustees to the trust and to provide for the establishment of a trust fund by the sale of the real estate comprising the assets of the trust, to be applied for the following purposes:
(a)To provide indigenous students with accommodation as boarders at Immanuel College;
(b)To provide indigenous students with financial support for their education to attend Immanuel College;
(c)The employment of a mentor for indigenous students;
(d)Funding the indigenous program;
(e)To provide financial benefits to indigenous students as the trustees determine from time to time.
The proposed trust variation is supported by the defendant. The trust variation scheme proposed is set out in a schedule to these reasons. The scheme is supported by the Attorney-General.
For a number of years, Immanuel College at Novar Gardens has undertaken a program by which boarding scholarships are offered to indigenous students from remote and regional areas across Australia. The school is a participant in the Federal Government’s Indigenous Youth Leadership Program. As part of this program, the school offers scholarships to indigenous students to study and board at the school. In 2013 there were 28 indigenous students who held such scholarships at the school.
The parties propose that the real estate be sold, and the proceeds of the sale paid into a charitable trust to be administered and utilised by the school for the purposes of continuing and expanding its program for indigenous students. Such a proposal requires a trust variation pursuant to s 69B of the Trustee Act.
Section 69B(1) of the Trustee Act provides:
69B—Alteration of purposes of charitable trust
(1) The purposes for which property is required or permitted to be applied in pursuance of a charitable trust may be altered by a scheme (a trust variation scheme) approved under this section in any of the following circumstances:
(a) where the original purposes, in whole or in part—
(i) have been as far as possible fulfilled; or
(ii) cannot be carried out, or not according to the directions given and to the spirit of the gift; or
(b) where the original purposes provide a use for part only of the trust property; or
(c) where the trust property could be more effectively used if combined with other property applicable for similar purposes and administered jointly with that property; or
(d) where it is not reasonably practicable having regard to—
(i) the value of the trust property; or
(ii) changes in circumstances that have taken place since the constitution of the trust; or
(iii) any other relevant factor,
to apply the trust property in accordance with the original purposes; or
(e) where the original purposes, in whole or in part—
(i) have been adequately provided for by other means; or
(ii) have ceased to be charitable purposes; or
(iii) have ceased to provide a suitable and effective method of using the trust property.
Section 69B(6) provides:
(6)If the relevant authority is satisfied, on application under this section, that the variation of the terms of a trust proposed in a trust variation scheme—
(a) accords, as far as reasonably practicable, with the spirit of the trust; and
(b) is justified in the circumstances of the particular case,
the relevant authority may approve the trust variation scheme and the approved scheme prevails over inconsistent provisions of a relevant instrument or declaration of trust.
Section 69B(3) provides that the relevant authority, where the value of the trust property exceeds $300,000, is this Court.
In the circumstances I am satisfied that it is not reasonably practicable to apply the trust property in accordance with the original purposes, having regard to the absence of detailed machinery in the will creating the charitable trust to enable the purpose of the trust to be performed and the unwillingness of the plaintiff to perform the duties of trustee of the charitable trust established pursuant to the will. In addition, the nature of the trust property, namely, a block of apartments, creates practical difficulties in applying the trust property in accordance with the original purposes of the charitable trust. The units are not particularly suitable for accommodation of Aboriginal students.
I am satisfied that these are relevant factors within the meaning of s 69B(1)(d)(iii).
I am satisfied that the variation of the terms of the trust proposed in the trust variation scheme accords, as far as reasonably practicable, with the spirit of the trust established by the testator’s last will.
Accordingly, I am satisfied that the power conferred upon the Court by s 69B should be exercised to approve the trust variation scheme in the circumstances of this case. I order that the terms of the trust established pursuant to the will of Waclaw Francishek Osinski (deceased) dated 2 October 2007 be varied to accord with the scheme set out in the document exhibited to the orders made by me this day.
Incidental matters
The plaintiff claims an entitlement to an executor’s commission in the sum of $12,000. The defendant does not object. In my view, this is appropriate. The commission should be satisfied from the proceeds of the sale of the real estate.
The parties’ costs of and incidental to these proceedings also should be met from the proceeds of the sale of the real estate, being the trust property within the meaning of s 69B.
Conclusion
I order that:
1.The terms of the charitable trust created pursuant to the will of Waclaw Francishek Osinski (deceased) of Unit 1, 16 Essex Crescent, Croydon Park in the State of South Australia dated 2 October 2007 be varied in accordance with the trust variation scheme annexed hereto and initialled this day.
2.The plaintiff is to be paid an executor’s commission in the sum of $12,000 from the proceeds of the sale of the trust property.
3.The parties are entitled to their costs of and incidental to this action as taxed to be met from the proceeds of the sale of the trust property.
SCHEDULE
SCHEME FOR THE ADMINISTRATION OF THE CHARITY TO BE KNOWN AS
“THE OSINSKI-O’DONOGHUE TRUST”OPERATIVE PROVISIONS
1.DEFINITIONS AND INTERPRETATION
1.1.Definitions
In this Scheme the following expressions have the definitions or meanings respectively provided:-
“Act” means the Income Tax Assessment Act 1936 or 1997 as the context requires.
“the charity” means the charity established by the last will and testament dated the 2nd day of October 2007 of Waclaw Francishek Osinski (as amended by this Scheme).
“Immanuel College” means Immanuel College Incorporated an education institution of The Lutheran Church of Australia South Australia District Incorporated of Morphett Road Novar Gardens South Australia.
“Indigenous Program” means:
(a) any program in which Indigenous students from remote and regional areas across Australia are offered boarding and study scholarships, educational and career development and counselling at Immanuel College, and
(b) any program of which Immanuel College is a participant pursuant to the Federal Government’s Indigenous Youth Leadership Program in which Immanuel College offers boarding and study scholarships to Indigenous students.
“Indigenous Students” mean students of Aboriginal or Torres Strait Islander descent at Immanuel College.
“Investments” means any one or more of the forms of investment in clause 4 of this Scheme all of which shall be authorised investments for the purpose of law.
“Mentor” means a person who:
(a) assists Indigenous Students to make the transition from their homes to the accommodation at Immanuel College,
(b) assists Indigenous Students to make the transition from Immanuel College into the workforce or further education for two years following the Indigenous Students’ graduation from Immanuel College, and
(c) supports Indigenous Students to become successful students.
“Property” means real personal movable or immovable property of every kind and nature wheresoever situate including (without limiting the generality thereto) policies of assurance or endowment cash and choses in action.
“the Real Property” means the whole of the land comprised in Certificate of Title Register Book Volume 5603 Folio 850 situate at 16 Essex Crescent Croydon Park in the State of South Australia.
“Retiring Trustee” means Joseph Wladyslaw Wojcinski the executor of the will of Waclaw Francishek Osinski deceased and to whom Probate was granted by the Supreme Court of South Australia in its Testamentary Causes Jurisdiction on the 29th day of October 2012.
“Scheme” means this Scheme and any other deed expressed to be supplemental to this Scheme and all amendments to any such document.
“Trust” means the Trust constituted by this Scheme to be known as “The Osinski-O’Donoghue Trust”.
“Trustees” means the persons named in the attached Schedule and any other trustee or Trustees for the time being hereof whether original additional or substituted.
“Trust Fund” or “Fund” means:
(a) the Real Property; and
(b) all other moneys and Property which any person or company may donate gift transfer or assign to or vest in the Trustees to be held upon the trusts and with and subject to the powers and provisions of this Scheme; and
(c) all other Property and moneys acquired by the Trustees under the provisions of this Scheme; and
(d) any income accumulated by the Trustees pursuant to the power so to do hereinafter contained; and
(e) the Property and Investments for the time being and from time to time representing the Property and moneys referred to in paragraphs (a),(b), (c) and (d) above and into which the same or any part thereof may be convened from time to time.
“writing” includes printing typing lithography and other modes of reproducing words in a visible form and “written” has a corresponding meaning.
“year” means a calendar year.
1.2.Interpretation
(a) Every agreement or obligation expressed or implied in this Scheme by which two or more persons agree or are bound shall (except where otherwise expressly stated) bind such persons jointly and each of them severally and every provision expressed or implied in this Scheme which applies to two or more persons shall (except where otherwise expressly stated) apply to such persons jointly and each of them severally.
(b) Words denoting the singular number only shall include the plural and vice versa. Words importing the masculine, feminine or neuter gender include all genders.
(c) The headings in this Scheme are included for convenience only and shall not affect the construction of this Scheme.
(d) Reference to statutes (whether particular reference to sections or generally) includes all statutes amending or consolidating or replacing the statutes referred to.
2.SALE OF REAL PROPERTY
2.1.The Retiring Trustee shall sell the Real Property as soon as may conveniently be at such price and upon such conditions as he may think fit.
2.2.The Retiring Trustee shall pay:
(a) all costs, fees, commissions and expenses relating to the sale of the Real Property;
(b) the costs and executor’s commission referred to in paragraphs 3 and 4 of the Order of the Supreme Court to which this Schedule relates;
(c) any income tax and capital gains tax with respect to the Real Property.
2.3.Upon making the payments referred to in clause 2.2, the Retiring Trustee shall then retire as a Trustee of the charity and appoint the Trustees to be the sole Trustees thereof.
2.4.The Retiring Trustee will do all such things and sign all such documents as may be necessary to transfer the net proceeds of the sale of the Real Property to the Trustees.
2.5.The Trustees shall thereafter hold the net proceeds of the sale of the Real Property upon the terms set out in this Scheme.
2.6.The charity shall be known as “The Osinski-O’Donoghue Trust”.
2.7.The Trustees:
(a) may use the net proceeds of sale of the Real Property and such other funds as may be lawfully available to them for the objects of the charity;
(b) have power at any time and from time to time in their absolute discretion to accept such additional Property as may be donated to assigned to transferred to or vested in them to be held upon and subject to the trusts;
(c) shall stand possessed of the Fund and the income therefrom upon the trusts and with and subject to the powers set forth in this Scheme;
and the Fund shall be applied and used exclusively for the purposes specified in clause 3.
2.8.Any questions affecting the regularity or the viability of any proceeding under this Scheme or any doubt or question arising as to the powers and authorities of the Trustees or its construction or application of any of the provisions of this Scheme or in the administration of the charity shall be referred for the advice and direction of a Judge in Chambers who upon such reference shall have the same powers as in the case of an application under Section 60 of the Trustee Act 1936 or under any Statutory provision amending or substituted for that Section.
3.OBJECTS OF THE FUND
3.1.The Trustees must stand possessed of the Trust Fund and the income of the Trust Fund derived from each accounting period upon trust to from time to time pay or apply the income and, if in so far as it thinks fit, all or any part of the capital of the Trust Fund for any of the following purposes:
(a) to provide Indigenous Students with accommodation as boarders at Immanuel College;
(b) to provide Indigenous Students with financial support for their education to attend Immanuel College;
(c) the employment of a Mentor for Indigenous Students;
(d) funding the Indigenous Program;
(e) to provide financial benefits to Indigenous Students as the Trustees determine from time to time.
3.2.In exercising its discretions from time to time under clause 3.1 the Trustees may, so far as they think fit have regard to the recommendations (if any) of Lowitja O’Donoghue C/- Iles Selley Lawyers 38 Carrington Street Adelaide South Australia.
3.3.Notwithstanding clauses 3.1 and 3.2, where:
(a) monies from investments or otherwise (the “sub-fund capital”) are proposed to be transferred to or otherwise vested in the Trustees upon the basis or condition that the Trustees pay or apply the income or capital or both of the sub-fund capital towards the purposes expressed in clause 3.1; and
(b) the Trustees are willing to accept the sub-fund capital on that basis or condition;
the Trustee must upon the sub-fund capital being transferred to or otherwise vested in it stand possessed of the sub-fund capital in accordance with that basis or condition.
3.4.The Trustees may maintain separate management accounts in respect of the sub-fund capital transferred or otherwise vested in the Trustee under clause 3.3 for the purpose of identification only of the sub-fund capital, its income and payments or application of its income or capital.
3.5.The Trustees may name any management accounts maintained under clause 3.4 as the Trustees think fit and without limiting the generality of the foregoing, may name particular management accounts in recognition of the donor, testator, or other benefactor.
3.6.Notwithstanding clause 3.1 the Trustees may in any accounting period accumulate and retain as part of the Trust Fund such of the income of the Trust Fund as they think fit provided that the proportion of the income accumulated in any accounting period does not exceed an amount determined as reasonable by the Trustees having regard to the provisions of clause 3.1 or such other percentage or amount as is from time to time approved by the Commissioner of Taxation or a Deputy Commissioner of Taxation.
4.INVESTMENT OF THE FUND
4.1.Dealing with Property
The Trustees may:
(a) allow the whole or any part of any Property belonging to or forming part of the Trust Fund to remain in the actual state or condition in which the same shall be received by the Trustees for so long as the Trustees shall think proper;
(b) at any time or times at the discretion of the Trustees sell call in or convert into money the Property or any part thereof respectively;
(c) alienate or dispose of all or part of the Property in such manner by public auction or private treaty and for such price in money or other consideration and on such conditions as the Trustees may think proper.
4.2.Investment
The Trustees shall invest any capital moneys which may be received by the Trustees as part of the Fund in the name or under the legal control of the Trustees in or upon one or more of the Investments from time to time authorised by law for the investment of Trust Funds with liberty at their discretion to vary and transpose any of such Investments into other or others similarly authorised.
5.APPLICATION OF CAPITAL AND INCOME OF THE FUND
No part of the capital or income of the Fund may be lent to or deposited with any Trustee or any member of the board of a trustee or to or with any firm in which any such member is a partner or to or with any private company in which any such member owns all or a substantial proportion of the capital or in any manner whereby any such member may directly or indirectly derive any pecuniary benefit otherwise than as a shareholder in a company or corporation listed on a stock exchange in Australia or elsewhere or in a subsidiary of such a company or corporation.
6.POWERS AND DUTIES OF TRUSTEE
6.1In addition to all the powers vested in Trustees by law or statute the Trustees shall have and may subject to clause 7 exercise in their absolute and uncontrolled discretion the following powers at any time and from time to time:
(a) to procure and accept gifts to take such steps as the Trustees deem expedient for the purpose of procuring and accepting from any person firm or company the gift of Property to be part of the Fund and subject to the Trusts herein declared;
(b) to hold or convert to retain any gift or part thereof in its original form without selling or converting the same into money and may also in their absolute discretion at any time and from time to time sell exchange realise call in convert or otherwise deal with any real or personal property comprising or forming part of the Fund in like manner as if the Trustees held the same upon trust for sale;
(c) to open bank accounts to open a bank account or bank accounts for any of the purposes of any of the Trusts hereunder and to deposit moneys therein and to operate thereon and to sign make draw execute endorse discount pledge mortgage or otherwise negotiate cheques bills of exchange promissory notes drafts and orders for the payment of money in following manner:
(i)by any two Trustee signatories; or
(ii)such additional number of Trustee signatories as the Trustees shall determine at a special meeting;
(d) to maintain books of account to establish and maintain the books of account of the Trust and to establish and maintain such ledger accounts or other accounts or funds statements in the Trust accounts as the Trustees may think fit and may determine and maintain separate accounts for the classes, sub-classes or sources of income or capital or any combination of same as the Trustees in their absolute discretion shall determine;
(e) to do all things necessary to preserve the Fund to do execute and perform any act or deed or thing whatsoever generally and without limitations which in the opinion of the Trustees ought to be done executed or performed in or about or in relation to the Fund as fully and effectually as if the Trustees were the beneficial owners and without limiting the generality of the foregoing to the intent that the Fund shall be preserved with a view to its increasing in value;
(f) to draw, accept etc bills of exchange to draw make accept endorse discount execute and issue promissory notes bills of exchange commercial bills of lading and other negotiable or transferable instruments;
(g) to exercise voting rights to exercise all the voting and other powers attached to any shares stock debentures or other securities (called “securities”) at any time forming part of the Fund;
(h) to enter into credit arrangements to enter into credit facility arrangements and / or bills of exchange with any bank merchant bank or other financier which the Trustees shall in their discretion determine with or without terms providing for fluctuating balances of debt and interest;
(i) to give guarantees to guarantee and give guarantees or indemnities for the payment of money or the performance of contracts or obligations by any person or company and to give security by way of mortgage or change of the Fund or any part thereof in support of any such guarantee or indemnities either alone or jointly with any other person or company;
(j) to exercise all powers of a Trustee in their personal capacity to exercise all or any of the powers that the Trustees are entitled to exercise in their own capacity;
(k) to engage in any transaction as if the Trustees were the beneficial owners to engage in any transaction or dealing on behalf of the Fund as they could do if they were the beneficial owners of the Fund absolutely entitled;
(l) to make rules and regulations to formulate any scheme or schemes for the distribution of the capital and income of the Fund for the Trusts and purposes herein before mentioned and to make such rules and regulations in connection therewith as the Trustees may deem proper and such rules and regulations shall be binding on the persons affected thereby and the Trustees may from time to time revoke amend or alter such scheme or schemes rules and regulations and formulate another or others;
(m) to meet establishment and maintenance expenses to pay out of the capital or income of the Fund the costs of and incidental to the establishment of the Fund and all expenses and outgoings that may be incurred in relation to the Trusts of this Scheme.
6.2Notwithstanding anything in this Scheme contained or any rule of law or equity to the contrary the Trustees shall have power to exercise or concur in exercising all of the foregoing powers and discretions contained in this Scheme or otherwise by law conferred notwithstanding that the Trustees or any person being a Trustee or any person being a director secretary or shareholder of a Trustee hereof (being a company) has or may have a direct or personal interest (whether as Trustee of any other settlement or in his personal capacity or as a director secretary or shareholder of any company or otherwise) in the mode or result of exercising such power or discretion as may benefit either directly or indirectly as a result of the exercise of any such power or discretion PROVIDED that such interest is disclosed to the Trustees before the benefit is received and is approved by resolution of ALL of the Trustees at a special meeting.
6.3The Trustees may from time to time deposit the securities or documents of title to Property for the time being forming part of the Fund with a bank trustee company investment broker or like institution in any part of Australia and may delegate to such bank trust company investment broker or other like institution such of the Trusts and powers hereby or by law vested in the Trustees with reference to the Property so deposited as the Trustees may consider expedient so to do and the Trustees shall not be liable or responsible for any loss whatsoever not caused by the Trustees own fraud which may in any manner occur in relation thereto.
6.4The Trustees may release and revoke any power or powers conferred on the Trustees under this Scheme. Any other person or persons upon whom any power is conferred by this Scheme may release and revoke any power or powers so conferred on him or them. Upon the exercise of any release and revocation pursuant to this clause the power so released and revoked shall be absolutely and irrevocably determined.
6.5Every Trustee which is a corporation or a company may exercise or concur in exercising any discretion or power hereby conferred on the Trustees by a resolution of such corporation or company or by a resolution of its board of directors or governing body or may delegate the right and power to exercise and concur in exercising any such discretion or power to one or more members of its board of directors or governing body appointed from time to time by the said board of directors or governing body for that purpose.
6.6It shall not be necessary for the title to any Property forming part of the Fund to be registered in the name of the Trustees but the same may in the discretion of the Trustees be registered in the name or names of any nominee of the Trustees or in any other name.
6.7In all cases in this Scheme the words “any other person or persons” where used in relation to the Trustee's powers in connection with the Fund shall be deemed to extend to and include the Trustees or any of them if more than one in its personal capacity and either alone or jointly or in partnership with any other person or persons.
7.TRUSTEES TO ACT AS A BOARD
7.1.Exercise of Powers
All of the powers of the Trustees powers vested in the Trustees by this Scheme or by law or statute shall be exercised by a quorum of the Trustees acting as a board.
7.2.Quorum for an Ordinary Meeting
There shall be a quorum at an ordinary meeting when at least two Trustees are present at the meeting.
7.3.Quorum for a Special Meeting
There shall be a quorum at a special meeting when all of the Trustees are present at the meeting.
7.4.Voting
Except as otherwise provided in this Scheme, every matter shall be determined by a majority of votes of the Trustees present and voting on the question. In the event of an equal vote, the motion being voted upon will fail.
8.MEETINGS OF THE TRUSTEES
8.1.Ordinary Meetings
The Trustees shall hold at least one ordinary meeting each year.
8.2.Calling Meetings
The first meeting of the Trustees shall be called by any two Trustees within two months from the date of this Scheme. Subsequent meetings shall be arranged by the Trustees at their meetings or may be called at any time by any two Trustees upon not less than 14 days notice in writing being given to the other Trustees.
8.3.Special Meetings
Subject to clause 9 a special meeting may be called at any time by any two Trustees upon not less than 4 days notice being given to the other Trustees of the matters to be discussed. A special meeting may be called to take place immediately after or before an ordinary meeting.
8.4.Minutes
The Trustees shall keep minutes, in books kept for the purpose, of the proceedings at their meetings and shall cause entries to be made therein of all resolutions put to the vote and of the result of the voting and any such minutes signed by a Trustee present at the meeting shall be conclusive evidence of the due passing of any resolution and the amount of the majority voting in favour thereof.
9.APPOINTMENT REMOVAL AND RESIGNATION OF A TRUSTEE
9.1.First Trustees
Subject to clause 10 the first Trustees shall be the persons specified in the Schedule.
9.2.Number of Trustees
There shall be at least three Trustees and no more than three Trustees.
9.3.Eligibility for Trusteeship
(a) No person shall be appointed as a Trustee:
(i) unless the person has attained the age of eighteen years;
(ii) if the person will be disqualified from office under clause 10.
(b) No person shall be entitled to act as a Trustee whether on a first or on any subsequent entry into office until after signing in the minute book of the Trustees a declaration of acceptance and willingness to act as a Trustee.
9.4.Removal of a Trustee
Immanuel College may:
(a) remove a Trustee; or
(b) subject to clause 9.2, appoint a new Trustee in addition to any existing Trustees or in substitution for any Trustee who is disqualified, removed or retires in accordance with this Scheme.
9.5.Retirement of Trustees
A Trustee may at any time retire PROVIDED that at the same time a new Trustee is appointed.
9.6.Vacancies
If a vacancy occurs the Trustees shall note the fact in their minute book at their next meeting. Any eligible Trustee may be re-appointed. So long as there shall be fewer than two Trustees none of the powers or discretions hereby or by law vested in the Trustees shall be exercisable.
10.DISQUALIFICATION OF TRUSTEES
A Trustee shall immediately cease to be a Trustee:
(a)if the Trustee becomes bankrupt or suspends payment or compounds with his creditors generally;
(b)if the Trustee is declared or found lunatic or is confined as a lunatic or becomes of unsound mind or incapable of performing his duties;
(c)if by notice in writing to the Trustees, the Trustee resigns from office;
(d)if the Trustee dies;
(e)if the Trustee is absent from half of the meetings of the Trustees during a period of one year without the permission of the Trustees; or
(f)if in the opinion of a majority of the members of the Trust, the Trustee is guilty of any grave misconduct.
11.POWERS OF IMMANUEL COLLEGE
11.1Immanuel College may at any time appoint and remove or make provision for the appointment and removal of Trustees.
11.2Subject to 9.2, the Trustees shall consist of such number of individuals as Immanuel College determines from time to time.
11.3 Immanuel College from time to time and subject to any such determination shall recommend to the Trustees how payments or applications of income and capital should be made under clause 3.
11.4Immanuel College may from time to time specify the manner in which proceedings of the Trustees are to be conducted, the matters which the Trustees shall have regard to and carry out its function, and such other matters with regard to the Trustees or their functions as the Trustee from time to time determines.
11.5Immanuel College may provide such secretarial and administrative support to the Trustees as Immanuel College determines from time to time.
12.ANNUAL REPORT & BOOKS OF ACCOUNT
12.1.Receipts
The Trustees shall issue receipts in the name of the Trust Fund for such additional Property as may be donated transferred to or vested in them to be held upon and subject to the trusts.
12.2.Proper Accounts to be Kept
The Trustees shall keep or cause to be kept proper accounts in respect of all receipts and payments on account of the Trust Fund and of all dealings connected herewith.
12.3.Annual Report
As soon as practicable after the end of each year the Trustees shall prepare or cause to be prepared an annual report including a statement showing the financial position of the Trust Fund at the conclusion of that year, a balance sheet and a statement of income and expenditure for that year.
12.4.Public Inspection
The Trustees shall at least once every two years make the annual reports and audited accounting records of the Trust available open to public inspection and shall advertise that fact in a newspaper circulating throughout metropolitan Adelaide at least 14 days before the day of inspection and may otherwise determine from time to time at what times and what conditions or regulations the accounting and other records of the Trust shall be open to inspection.
13.AUDIT
13.1.Appointment of Auditor
The Trustees shall appoint a person who is a member of The Institute of Chartered Accountants in Australia or the Australian Society of Certified Practising Accountants and who is not a Trustee or related to a Trustee to be the auditor of the Trust Fund.
13.2.Annual Audit
The Trustees shall cause the Trust accounts to be audited at the end of each year.
14.TRUSTEES FEES
The Trustees shall not be entitled to receive fees out the Trust Fund whether by way of commission or otherwise.
15.VARIATION OF SCHEME
15.1Subject to the following sub-clauses, it is expressly declared that the Trustees may add to vary or amend the provisions of this Scheme with the prior approval of Immanuel College.
15.2No such addition variation or amendment shall be of any force or effect to the extent that by virtue thereof the Fund or any part thereof shall cease to be applied and used exclusively for the purposes of clause 3 hereof or that by virtue thereof any gifts made as additions to the Fund shall not be allowable deductions under Division 30 of the Income Tax Assessment Act 1997 or any subsequent legislation substantially in substitution therefore or any modification replacement or re-enactment thereof.
16.TRUSTEES’ INDEMNITY
16.1Every discretion or power hereby conferred upon the Trustees shall be exercisable by the Trustees in the Trustees’ absolute and uncontrolled discretion and the Trustees shall not be held liable for any loss or damage occurring as a result of the Trustee's concurring or refusing or failing to concur in an exercise of any such discretion or power.
16.2The Trustees shall not be liable for any breach of trust howsoever occurring except to the extent (if any) that such breach results from the Trustee's own willful default or willful neglect.
16.3A loss shall not be considered as caused by the Trustee's own willful default or willful neglect by reason only of that loss being caused by any servant or agent of the Trustees willfully and knowingly being a party to a breach of trust.
16.4 The Retiring Trustee and the Trustees shall be held harmless against any claims losses duties taxes and impositions arising in connection with the Fund or any part thereof
16.5A Trustee shall be bound to take proceedings against a co-trustee for any breach or alleged breach of trust committed by such co-trustee.
16.6 The Trustees shall not be personally liable for the consequences of any error or forgetfulness whether of law or of fact on the part of the Trustees or their legal or other advisers or generally.
16.7 The Trustees shall be entitled to be indemnified out of the Investments of the Fund and out of the income thereof against all liabilities incurred by them in the exercise or attempted exercise or failure to exercise any of the powers authorities or discretions vested in them by this Scheme or by law and against all actions proceedings costs claims and demands relating to any matter or thing done or omitted to be done concerning the Fund.
17.REMUNERATION FOR ADMINISTRATION OF FUND
The expenses in connection with the administration of this Trust and of the investment and re-investment of any part of the Fund and the collection of income and other sums derivable therefrom shall be charged against the income of the Fund including the remuneration and charges of any professionally qualified persons and specialists (including stockbrokers bankers architects surveyors solicitors and chartered or public accountants) and managers secretaries clerks or other persons as the Trustees in their absolute discretion think fit but if such income is insufficient for the purpose then the same shall be charged against the Fund or so much thereof as may be required in addition to the income for the purpose.
18.APPLICABLE LAW
This Trust is made under the laws of the State of South Australia and the rights of all parties in and the constructions and effect of each and every provision hereof shall be subject to such laws and the terms of this Trust and of all beneficial interest therein shall be deemed to be in the said State of South Australia.
19.RETIRING TRUSTEE’S LIABILITIES
It is hereby expressly declared that the Retiring Trustee shall not be liable for debts incurred by the Trustees and shall be held harmless against any debts claims losses death duties gift duties taxes and impositions arising in connection with the Fund.
20.DISPOSITION ON WINDING UP
If upon the winding up or dissolution of the Fund there remains, after satisfaction of all its debts and liabilities, any property whatsoever, the same shall be paid to or distributed to a charity that promotes the education of Indigenous Students.
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