In the Matter Of the D Macdonald Steele Memorial Prize - [2019] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
IN THE MATTER OF THE D MACDONALD STEELE MEMORIAL PRIZE
[2019] SASC 164
Judgment of The Honourable Justice Hinton
13 September 2019
CHARITIES - CHARITABLE GIFTS AND TRUSTS - IN GENERAL
EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY
On 14 September 1964, Mr Steele, the son of David Macdonald Steele and one of the executors and trustees of David Macdonald Steele’s estate, wrote to the Public Trustee to advise that the beneficiaries of the estate had made available to the Education Department the sum of £250. This amount was to be invested and the interest derived therefrom was to constitute the D. Macdonald Steele Memorial Prize which would be awarded annually to the dux of the Burra High School (now Burra Community School). Mr Steele’s letter specified that the interest earned would be paid to the School annually upon the Principal of the School applying to the Education Department for payment of the same. Mr Steele's letter also required that there be a committee of trustees which would supervise payment to the successful candidate each year.
The Public Trustee made an application to this Court seeking advice and directions on the question of whether the arrangements creating the D. Macdonald Steele Memorial Prize and providing for its ongoing award, as specified in Mr Steele’s letter, constituted a trust. The Public Trustee submitted that the letter created a charitable trust of which she is trustee, although she raised an alternative view, that she held the money as agent for the trustee, being either the Education Department or the committee of three trustees.
Held, allowing the application, the arrangements for the D. Macdonald Steele Memorial Prize, as provided for in Mr Steele’s letter of 14 September 1964, create a charitable trust of which the Public Trustee is trustee.
Administration and Probate Act 1919 (SA) ss 69, 70, 77; Public Trustee Act 1995 (SA); Probate Rules 2015 (SA); Trustee Act 1925 (NSW) ss 5, 63; Trustee Act 1936 (SA) ss 4, 69, 90, 91, referred to.
Re Application of Macedonian Orthodox Community Church St Petka Incorporated (No 2) (2005) 63 NSWLR 441; Bahr v Nicolay (No 2) (1988) 164 CLR 604; Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387, considered.

IN THE MATTER OF THE D MACDONALD STEELE MEMORIAL PRIZE
[2019] SASC 164
Application
HINTON J:
Introduction

This is an application made by the Public Trustee who seeks advice and direction on the question of whether the arrangements creating the D. Macdonald Steele Memorial Prize and providing for its ongoing award constitute a trust. For the reasons that follow, in my view those arrangements do have the effect of creating a charitable trust.
The D. Macdonald Steele Memorial Prize
David Macdonald Steele died on 25 February 1964. He was a pastoralist and a medical practitioner. On 14 September 1964, John Robertson Macdonald Steele, the son of David Macdonald Steele and one of the executors and trustees of David Macdonald Steele’s estate, wrote to the Public Trustee in the following terms:
In order to perpetuate the memory of the Late Dr. David Macdonald Steele, the beneficiaries of his Estate have made available to the Education Department for investment the sum of £250/-/-; and the annual interest derived therefrom shall constitute the said Prize, which shall be awarded to a student who has been a full time student at the Burra High School.
The writer, on the 1st September, 1964 paid to your Department the sum of £250/-/- to establish the fund (your receipt number 59672).
At your request and for your information I set out hereunder the conditions of the prize:
The Prize shall be awarded annually under the following conditions:–
1.   The Prize shall be called “The D. Macdonald Steele Memorial Prize”.
2.   The Public Trustee will invest the £250/-/- and the interest due each year will be paid direct to the school.
3.   The Prize shall be awarded to the Dux of the school or utilised for any other purpose designated by the High School Council on the recommendation of the Head Master.
4.   A Committee of three, including the Head of the Burra High School, shall be appointed Trustees by the School Council and will supervise payment to the successful candidate each year.
5.   The Head Master shall apply to the Department for payment of the interest due at the beginning of the third term of each year.
6.   The Head Master shall supply to the Department a certified statement covering the expenditure of the prize money and will advise the name of the winner at the end of each year.
7.   Should the Burra High School cease to exist at any future date, the capital sum should be transferred for the purpose of providing an annual Prize at Prince Alfred College.
8.   These rules may be varied from time to time by the Director of Education but the title and purpose of the Prize shall not be changed.
The Public Trustee advised that the D. Macdonald Steele Memorial Prize was awarded annually between 1964 and sometime in the 1980s. Why the prize ceased to be awarded is not known. A possible explanation is the failure on the part of successive Principals of the Burra High School to apply for the payment of the interest in accordance with condition 5 of the 14 September 1964 letter (the letter). In any event the Public Trustee currently holds approximately $3,500.00 (of which, as I understand it, $1,346.00 is the dollar value equivalent of the £250 initially invested) subject to the terms of the letter.
I have also been advised that Burra High School no longer exists. In February 1976 Burra High School became part of the Burra Community School. In a letter to the Public Trustee dated 7 April 1976 the Secretary of the Burra Community School Council advised the Public Trustee of the change and requested that the terms of the prize be amended accordingly. In addition the Council sought the substitution of the title “Principal” for that of “Headmaster” to reflect the then current position.
It appears that all concerned have treated the letter as containing the entirety of the terms pursuant to which the Public Trustee holds the money paid over, including the interest earned thereon, and as governing the purposes to which that money and interest may be applied. That is the basis upon which this application proceeds.
From the terms of the letter it may be noted:
i.That the beneficiaries made available £250 for the purposes of the D. Macdonald Steele Memorial Prize. That act was not performed in the discharge of any legal or equitable obligation. It was not one effected pursuant to the terms of Dr Macdonald Steele’s will, a copy of which was provided as part of the application. My understanding is that the £250 was made up of contributions paid by each of the beneficiaries under Dr Macdonald Steele’s will from, in each case, the bequest made to each by Dr Macdonald Steele. The significance of this observation is that this is not a testamentary matter.
ii.The intention is that the income generated by the investment of the £250 support the annual prize indefinitely. Accepting this it may be said that the intention is that prize be awarded in perpetuity. This is in keeping with the obvious intention that the prize serve as a continuing memorial to David Macdonald Steele.
iii.The fact that the prize is to be awarded annually to the dux of the Burra Community School makes plain that the prize is intended for the advancement of education in that it encourages students at the School to strive for academic excellence.
iv.It must be acknowledged that the prize may be awarded for any other purpose designated by the Council on the recommendation of the Principal. Condition 8 is important here; it prohibits any change in the title and purpose of the prize. I think the purpose to which condition 8 refers to be the genus of which the prize awarded to the dux and any alternative may be considered species. If this is right the genus may be defined as an annual award made to a final year student of the Burra Community School in recognition of his or her academic achievement.
v.The Public Trustee is burdened with the duty of investing the £250 so that it realises an income that as far as practicable will support the annual prize in perpetuity.
vi.Implicitly, the Public Trustee must pay the interest earned annually to the Burra Community School upon the Public Trustee being advised by the Education Department that the Principal has applied for the same to be paid.
vii.The committee of three appointed for the purposes of condition 4 in the letter supervises the payment of the sum sent to the School to the prize winner.
viii.Conditions 7 and 8 as contained in the letter are self-explanatory.
The power to advise and direct
The application states that it is made pursuant to s 91 of the Trustee Act 1936 (SA) and r 80 of the Probate Rules 2015 (SA). Sections 90 and 91 of the Trustee Act 1936 (SA) provide:
90—Parties entitled may apply to Court by summons
(1) Any person entitled to apply for an order of the Supreme Court under this Act may apply by summons, and may give evidence, by affidavit or otherwise, in support of that summons, and may serve such person or persons with notice of the application as he may deem entitled to service thereof.
(2) Upon hearing the application the Court may either dispose of the matter in the first instance, or may direct a reference to the Master to inquire into any facts which require investigation, or may direct the application to stand over until the right of the applicant has been declared in an action instituted for that purpose, or to enable the applicant to adduce evidence, or for further consideration, or to enable notice or any further notice of the application to be served upon any person, and may deal with the applicant, and may make such order with respect to costs as shall seem just.
91—Advice and directions of court and commission
Sections 69 and 70 of the Administration and Probate Act 1919 apply to trustees as defined by this Act, and section 90 of this Act shall extend to applications under either of the same sections, but without limiting the powers of the Supreme Court, apart from the said section 90, with regard to such applications.
Section 69 of the Administration and Probate Act 1919 (SA), so far as is presently relevant, provides:
69—Public Trustee and other persons may obtain judicial advice or direction
(1)The Public Trustee shall, and any trustee, executor, or administrator may, when in difficulty or doubt, apply to a Judge for advice or direction as to matters connected with the administration of any estate, or the construction of any will, deed, or document.
…
(4)A Judge may, upon the hearing of an application under this section, make any order, declaratory or otherwise, that he sees fit as to the administration of the estate, or the construction of the will, deed, or document, which is the subject of the application, and also as to the costs of the application.
Section 70 of the Administration and Probate Act 1919 (SA) is not presently relevant.
Returning to s 91 of the Trustee Act 1936 (SA), it does three things. First, it extends the class of person to whom ss 69 and 70 of the Administration and Probate Act 1919 (SA) apply to include trustees as defined by the Trustee Act 1936 (SA). Second, it provides that s 90 of the Trustee Act 1936 (SA) extends to include applications made under ss 69 and 70 of the Administration and Probate Act 1919 (SA). Third, whilst s 91 picks up the jurisdiction conferred by ss 69 and 70 of the Administration and Probate Act 1919 (SA), it does so free of the limitations contained in ss 69 and 70 and any other limitation, apart from s 90. This third function has the consequence that, on an application made under s 90 of the Trustee Act 1936 (SA) invoking the jurisdiction conferred under ss 69 and 70 of the Administration and Probate Act 1919 (SA), as picked up by s 91 of the Trustee Act 1936 (SA), this Court is not constrained in the advice or direction it may give to matters connected with the administration of any estate, or the construction of any will, deed or document. The result is that the power to advise and direct under the Trustee Act 1936 (SA) is very broad. That said, it is not without limits.
The most obvious limit imposed is that an application under s 90, invoking the advisory jurisdiction picked up by s 91, can only be made by a trustee as defined by the Trustee Act 1936 (SA). In the present case that gives rise to a novel question. The Public Trustee invokes the advisory jurisdiction seeking an answer to the question whether the terms of the letter create a trust. The answer to that question will, in turn, determine whether the Public Trustee is a trustee. Put slightly differently, the substantive question raised by the application is, in effect, one that also goes to standing to invoke the jurisdiction.
In Re Application of Macedonian Orthodox Community Church St Petka Inc [No 2] Palmer J was confronted by a not dissimilar predicament.[1] That case concerned an application under s 63 of the Trustee Act 1925 (NSW) for advice by the Macedonian Orthodox Community Church St Petka Inc (the Association) in proceedings in which the plaintiffs asserted that the Association held property including real estate and interests in real estate on trust for the Macedonian Orthodox Church. The Association denied that it held the property on trust but sought advice and direction as to whether it could, in the event that it was found to be a trustee, resort to the property to pay legal costs associated with the proceedings. The question arose, how could the advisory jurisdiction vested by s 63 be invoked by a party that denied that it was a trustee? Palmer J observed:[2]
The course of the development of the advisory jurisdiction from its primitive origins has been outlined by Young CJ in Eq in Re Application of Perpetual Trustee Co Ltd [2003] NSWSC 1185. As his Honour points out, the procedure now has great flexibility and utility. Yet, it has its limits.
The advisory jurisdiction is an exception to the Court’s ordinary function of deciding disputes between competing litigants. An application for judicial advice, whether under s 63 or under the general jurisdiction of equity, is in nature essentially a request for private advice: see, for example, Harrison v Mills [1976] 1 NSWLR 42 at 45, per Needham J; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 440, per Sheller JA. This exceptional jurisdiction, which is derived from the practice of the Court of Chancery under the general law in giving directions to those entrusted with the administration of property under the control of the court, may now be regarded as affording special assistance to those, such as trustees, liquidators, bankruptcy trustees and receivers, who have no direct pecuniary interest in a fund but have assumed the onerous obligation of administering it for the benefit of others: see, for example, Re G B Nathan & Co Pty Ltd (In Liq) (1991) 24 NSWLR 674 at 677; Gardner v London Chatham and Dover Railway Company (No 1) (1867) LR 2 Ch App 201 at 211.
To avail oneself of that special assistance from the court, one has to show that one is entitled to it. In my opinion, the court has no power to give judicial advice under s 63 of the Trustee Act to a person who does not establish to the court’s satisfaction that he or she is, in fact, a trustee and that the advice sought relates to the management or administration of trust property or the interpretation of a trust instrument.
As the definition of “trust” in s 5 indicates, the trust in respect of which advice is sought may be an express trust created by instrument or the trustee may show that the trust is implied or constructive. If the trust is constructive, generally the trustee will show that the trust has been imposed as a result of proceedings in court and that there is now doubt as to how the constructive trust should be administered. However, although that situation is theoretically possible, it is likely to be very rare indeed in reality as the court, in imposing a constructive trust, usually provides in consequential orders how the trust is to be performed. If there is any remaining doubt, the court may be approached to work out the orders further.
The words of s 63 and of the definitions of “trustee” and “trust” in s 5 do not naturally encompass “alleged trustee” and “alleged trust” and the historical origins of the advisory jurisdiction generally show that alleged trustees were never contemplated as being entitled to invoke that jurisdiction. I cannot see in the language of the Trustee Act or in the decisions of the Court relating to the advisory jurisdiction in general any justification for extending the meaning of the word “trustee” in s 63, or in the general law, so as to include “alleged trustee”.
[1] (2005) 63 NSWLR 441.
[2] Re Application of Macedonian Orthodox Community Church St Petka Inc [No 2] (2005) 63 NSWLR 441 at [22]-[26].
The definitions of trust and trustee contained in s 5 of the Trustee Act 1925 (NSW) provided:
Trust does not include the duties incident to an estate conveyed by way of mortgage; but, with this exception, includes implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of legal representative of a deceased person.
Trustee has a meaning corresponding with that of trust; and includes legal representative and the public trustee and a trustee company.
In the Trustee Act 1936 (SA) the definition of trust provides:[3]
trust does not include the duties incident to an estate conveyed by way of mortgage, or to the estate or interest of a mortgagee under the Real Property Act 1886 but with these exceptions the expressions trust and trustee include implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of representative of a deceased person, and the expression trustee includes a representative of a deceased person;
[3] Trustee Act 1936 (SA), s 4(1).
Clearly any difference in the definition of trust and trustee between the South Australian and New South Wales Acts provides no basis upon which to distinguish the judgment in Re Application of Macedonian Orthodox Community Church St Petka Inc [No 2].
In Lombe v Wagga Leagues Club Ltd the liquidator of the Wagga Leagues Club applied under s 63 of the Trustee Act 1925 (NSW) for advice as to the application of certain asserted trust monies.[4] Antecedent to the question in relation to which advice and direction was sought was the question of whether the relevant money was trust money and, implicitly, whether the liquidator was a trustee. Barrett J referred to the judgment of Palmer J in Re Application of Macedonian Orthodox Community Church St Petka Inc [No 2] and the dilemma confronting the liquidator “as to whether he has standing to approach the court under s 63”.[5] Barrett J determined:[6]
That, [Re Application of Macedonian Orthodox Community Church St Petka Inc [No 2]], however, was a case in which the applicants contended that they were not trustees and sought the assistance of the court as a form of protection against costs should they ultimately be proved wrong. In the present case, the plaintiff is quite prepared to be a trustee and the answer to the question whether the moneys in question are trust moneys will also be the answer to the question whether he is. It would be unrealistic to expect him to make some preliminary showing of the necessary standing before considering the substantive issue.
[4] (2006) 56 ACSR 387.
[5] Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387 at [53].
[6] Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387 at [54].

Barrett J proceeded to analyse the deed of arrangement and concluded that it did not create a trust.
I do not think that this Court is precluded from entertaining the application because the question raised in seeking advice and the question of whether the Court has jurisdiction to provide the advice are, in effect, one and the same. A superior court of record always has power to decide whether it has jurisdiction to determine a matter.[7] Simply because resolution of the question of whether the court has jurisdiction also resolves the question upon which advice is sought does not mean that the court does not have power to proceed.
[7] Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391 (Dixon J); New South Wales v Kable (2013) 252 CLR 118 at [31] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Accordingly, I proceed to provide the advice sought.
A trust?
The Public Trustee contends that the letter creates a charitable trust of which she is trustee. In arguing against herself, the Public Trustee suggests that an alternative view might be that she holds the money as agent for the trustee, being either the trustees contemplated by condition 4 of the letter or the Education Department.
It may be taken as settled that for an express trust to exist there must be a trustee who holds legal title in property that is capable of being held on trust, subject to obligations imposed by the trust on the trustee personally regarding his or her dealing with that property, such obligations being undertaken for the benefit of an identifiable beneficiary or class of beneficiaries (which may include the trustee but which cannot consist solely of the trustee) and being enforceable in equity.
The established rule is that a trust is only created when the intention to do so is clear.[8] In Korda v Australian Executor Trustees (SA) Ltd French CJ observed:[9]
The question whether an express trust exists must always be answered by reference to intention. An express trust cannot be created unless the person or persons creating it can be taken to have intended to do so. Absent, as in this case, an explicit declaration of such an intention, the court must determine whether intention is to be imputed. It does so by reference to the language of the documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties.
[footnotes omitted]
[8] Kauter v Hitlon (1953) 90 CLR 86 at 98 (Dixon CJ, Williams and Fullagar JJ).
[9] (2015) 255 CLR 62 at [3] (French CJ).
In Bahr v Nicolay (No 2) Mason CJ and Dawson J said:[10]
If the inference to be drawn is that the parties intended to create or protect an interest in a third party and the trust relationship is the appropriate means of creating or protecting that interest or of giving effect to the intention, then there is no reason why in a given case an intention to create a trust should not be inferred. …
[10] (1988) 164 CLR 604 at 618-619.
In the present case:
·the beneficiaries under David Macdonald Steele’s will divested themselves of title in the £250 upon paying the same over to the Public Trustee;
·it may be inferred that the Department forwarded the money to the Public Trustee in order that effect be given to condition 2 of the letter, hence Mr Steele’s letter of 14 September 1964 is addressed to the Public Trustee;
·in the Public Trustee’s hands, the £250 was invested, seemingly at the discretion of the Public Trustee;
·the Public Trustee is required to pay the interest direct to the Burra Community School annually after the Principal has applied to the Department for the payment of the interest due;
·the Public Trustee is required to continue to hold the corpus and, implicitly, invest the same in order that it generate an income to continue to fund the prize;
·condition 6 of the letter is intended to provide the Department with a means of ensuring that the interest paid directly to the school by the Public Trustee was received and applied in accordance with conditions 3 and 4.
The letter is obviously not a formal trust deed. It does not contain the word “trust”. Mr Steele was a chartered accountant. In his profession it may be expected that he would have been familiar with the meaning and implications of using (or not using) the word “trust”. The omission is significant but not fatal.
The introductory paragraph to the letter announces that the beneficiaries of Dr Macdonald Steele’s estate have made available to the Education Department the sum of £250.00 for investment and the annual interest derived therefrom is to constitute the prize. The expression “made available” is equivocal as to the mechanics of how the money has been made available to the Education Department for investment and for the prize.
In my view the opening paragraph to the letter takes its colour from the balance of the letter. In that regard the third paragraph contains a series of instructions using the declaratory language of “shall” and “will”; it is stipulated that the prize shall be awarded annually under the following conditions. There follows a series of instructions to different parties; the Public Trustee is instructed to invest the money; the committee of three trustees is instructed to supervise the payment of the prize to the dux of the Burra Community School or for any other purpose designated by the School Council on the recommendation of the Principal; the Principal shall apply to the Department for payment of the prize money at the beginning of the third term of each year; the Principal shall supply to the Department a certified statement covering the expenditure of the prize money and advising of the name of the prize winner; the rules governing the award of the prize may be changed by the Director of Education, but the title and purpose of the prize may not.
I consider that the meaning of the opening paragraph of the letter is to be gleaned from the third paragraph and the conditions attached to the money provided. That is, when Mr Steele states that the beneficiaries of Dr Macdonald Steele’s estate “have made available to the Education Department for investment the sum of £250/-/-” he should be taken as meaning that £250 has been made available to the Education Department in the manner and for the purpose described in conditions 1 to 8. Accordingly, title in the £250 passed to the Public Trustee, not the Department. And despite Mr Steele referring to the committee to be created in the discharge of the obligation imposed by condition 4 of the letter as trustees, his intention was not to create a trust of which the committee was trustees. No property is vested in the committee. The committee’s function is limited to one of supervision of the payment of the prize to the prize winner. Whatever may be extrapolated as necessarily implicit in the performance of that function, in my view, it cannot extend to the committee holding title in the money paid by the beneficiaries.
The Public Trustee submitted that the machinery arrangements set out in the letter were “skeletal”. There are no rules under condition 4 providing for the method of appointing “trustees” (as a committee of three) and for the retirement of trustees. The only stipulation is that they are to be appointed by the School Council, and that there are to be three members, one being the Principal. Additionally, condition 7, which provides for the transfer of funds to Prince Alfred College for the purpose of providing an annual prize, in the event that Burra High School ceases to exist, is inchoate; it does not provide how or for what purpose such a prize would be awarded. Further, condition 8 allows the Director of Education to vary the rules stipulated in the letter from time to time. It does not explain how, when or for what reason this could be done. No restrictions are included, other than to provide that the title and purpose of the prize must be constant. Condition 8, therefore, provides the Director with a broad power to change the rules. I do not think these things matter.
In my view, the language of the letter manifests an intention to create a trust. Quite obviously, title in an identifiable fund is settled on another to be held for the purpose of financing an annual prize, awarded according to the terms of the letter as modified by the Director of Education unless the Burra High School ceases to exist. I consider the trust one for a purpose that is intended to be achieved in perpetuity. In this regard the purpose of the trust may be considered as one for the advancement of education, an accepted class of charitable trust.[11] Subject to the question of who is the trustee, I am inclined to think that the letter creates a charitable trust. If that is right, and accepting that the settlors have made clear a charitable purpose to which the interest earned on the fund is to be applied, equity will not let the trust fail for any defect in machinery.
[11] See generally, National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31; The Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531; Chesterman v Federal Commissioner for Taxation [1926] AC 128; Tasmanian Perpetual Trustees v Attorney-General (Tas) [2017] TASSC 32; Powell v Compton [1945] Ch 123; In Re Mariette; Mariette v Governing Body of Aldenham School [1915] 2 Ch 284; Thompson v Thompson (1844) 1 Coll 381; 63 ER 464. To the extent that it may be contended that the trust has additional purposes such as the memorialisation of Dr Macdonald Steele, that would not be fatal; see Trustee Act 1936 (SA), s 69A.
On its face the letter does not indicate that the Public Trustee is to act in the capacity of an agent. Trusts and agency arrangements may be distinguished by considering the legal ownership of property. In a trust situation the trustee holds the legal title to the property and deals with the property for the benefit of a beneficiary, or in this case, for a charitable purpose. In an agency arrangement, the principal retains legal title in the property and the agent takes action in relation to the property on the instructions of the principal. Put simply, the agent has possession but not ownership.
In the present case the letter indicates that title in the £250 passed to the Public Trustee to be held as principal. Further, and in any event, the Public Trustee holds the £250 in accordance with the terms of the letter, not subject to the instructions of the Education Department or the Director of Education.
I suspect that the arrangement referred to in the letter was the product of the then legal status of the Department of Education as compared to that of the Public Trustee. The former was an administrative department created by statute but not vested with legal personality.[12] The same may not be said of the Director of Education, but I do not think the letter could be construed as attempting to vest the £250 in the Director. By contrast the Public Trustee was a body corporate, capable of suing and being sued.[13] Further, s 88 of the Administration and Probate Act 1919 (SA) provided:
(1)   Any person may appoint the Public Trustee, either solely or jointly with any other person or persons, to be executor or trustee of his will or to be trustee of any settlement or other disposition inter vivos of trust property made by him, not being exclusively for a religious purpose.
(2)   The Public Trustee shall accept the office of trust so reposed in him.
(3)   Where the Public Trustee is appointed executor or trustee jointly with any other person all moneys belonging to the estate and received on account thereof, or, as the case may be, all moneys subject to the trusts created or arising by or under the settlement or other disposition inter vivos of trust property, shall be received by and remain subject to the control of the Public Trustee alone, and shall be held by him on account of the estate or of the said trusts, as the case may be, and in such case the receipt of the Public Trustee only shall be a sufficient discharge to every person paying such moneys.
…
[12] The Education Department was established under s 17 of the Public Service Act 1916 (SA). Section 5 of the Education Act 1972 (SA) defines the “Department”, being the Education Department, as an “administrative unit of the Public Service” that is under the responsibility of the Minister.
[13] Administration and Probate Act 1919 (SA), s 74.
I also note that in 1964 there was no express provision in the Administration and Probate Act 1919 (SA) authorising the Public Trustee to act as an agent generally, despite that capacity now existing.[14]
[14] See Public Trustee Act 1995 (SA), s 5.
In my view the arrangement laid out in the letter is one where property in the £250 passes to the Public Trustee to be applied as set out in the letter and in accordance with any statutory requirements attaching to the office of Public Trustee.
Conclusion
In my view Mr Steele’s letter of 14 September 1964 creates a charitable trust of which the Public Trustee is trustee.