In the matter of the Public Trustee of Queensland as trustee of Queensland Community Foundation

The Public Trustee of Queensland, as trustee of the Queensland Community Foundation, applied to the Supreme Court of Queensland for advice and directions to execute an amended Trust Deed for a charitable trust. The amendment aimed to allow the trust to comply with the Guidelines in Schedule 1 to the Taxation Administration Act 1953 (Cth) and to preserve the trust's taxation status. The key legal issues involved determining whether section 134 of the Public Trustee Act 1978 (Qld) or section 106 of the Trusts Act 1973 (Qld) should be relied upon for the amendment, whether the Court's jurisdiction had been invoked, and whether an Order should be made. The Court examined the validity of a retrospective amendment under the trust deed and the limits of the amendment power. It referenced the decision in Global Custodians v Mesh, which held that a retrospective amendment is valid if the trust deed is drafted broadly enough. The Court also considered the principle that a power of amendment cannot be used to alter or defeat the main purpose of the trust, as established in Jenkins v Ellett.

The Court concluded that the amendment power in the Deed was valid and could be exercised without contravening the main purpose of the trust. The Court found that the applicant was justified in executing the Amended Trust Deed for the Queensland Community Foundation. It directed that the applicant could administer the trust in accordance with the amended deed upon receiving the Commissioner of Taxation's consent. The Court also ruled that the applicant could treat payments to and from the trust as gifts for the charitable purposes of the trust and could distribute income derived from gifts in the manner provided by the amended deed. Finally, the Court ordered that the applicant's reasonable costs and expenses of the application and the preparation of the amended deed would be expenses of the trust, payable from the trust's income.