Legal Research
Cases
Johnson v Johnson

Johnson v Johnson

Case [2022] NSWSC 44 31 January 2022

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Johnson v Johnson [2022] NSWSC 44
Hearing dates: 1 December 2021
Decision date: 31 January 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Declare that the gift of the late Kathleen Mary Johnson of her entire residuary estate by a testamentary perpetual trust as set out in clause 2 of her Will dated 4 June 2000 (the Will) is void.
2.   Declare that clause 7 of the Will does not operate to create a charitable trust.
3.   Declare that, by reason of the failure of the testamentary perpetual trust, there is a partial intestacy under the Will.
4. For the purposes of giving judicial advice to the executors pursuant to s 63 of the Trustee Act, advise that the executors of the estate would be justified in taking the steps identified in paragraphs 19 and 20 of the Amended Statement of Facts which forms part of Exhibit E on the present application.
5.   Liberty to apply for further directions from the Court in relation to any issues arising out of the administration of the above or implementation of the above.
6.   Order that the plaintiffs' costs of the summons be paid out of the estate of the deceased on an indemnity basis.

Catchwords:
CHARITIES AND NOT-FOR-PROFITS — Charitable purposes — Other purposes beneficial to the public — Gift for preservation of fauna and flora
SUCCESSION — Construction — Charitable gifts — Whether charitable
SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63

Legislation Cited:
Charitable Trusts Act 1993 (NSW), s 23
Charitable Uses Act 1601 (UK)
Perpetuities Act 1984 (NSW)
Supreme Court Act 1970 (Cth), s 75
Trustee Act 1925 (NSW), s 63

Cases Cited:
Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539, [2010] HCA 42
Attorney-General (NSW) v Donnelly (1958) 98 CLR 538; [1958] HCA 1
Attorney-General (NSW) v Sawtell [1978] 2 NSWLR 200
Campbell v Sherwell [1999] VSC 508
Church of Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519
Crawford v Davidson-Crawford [2019] NSWSC 728
Downing v Federal Commissioner of Taxation (1971) 125 CLR 185; [1971] HCA 38
Duggan v White [2018] NSWSC 364
Estate of Aspasia Kandros [2019] NSWSC 757
Harmony - The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276
Hickey v Attorney General of the State of New South Wales [2021] NSWSC 772
IMF Australia Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231; [2004] FCA 1390
Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531
Morrison-Conway & Anor; Estate of the Late Judith Christine Walsh [2018] NSWSC 685
Re Ingram [1951] VLR 424; [1951] ALR 900
Re Wedgwood [1915] 1 Ch 133
State Trustees Ltd v Attorney-General (Vic) (2013) 301 ALR 798; [2013] VSC 117
Zetting v Müller [2017] NSWSC 659

Texts Cited:
Dal Pont, G E, The Law of Charity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Johnson

Details

AGLC: Johnson v Johnson [2022] NSWSC 44
Case: [2022] NSWSC 44
Decision Date: 31 January 2022

CaseChat Overview and Summary

In the case of Johnson v Johnson, the dispute centred around the interpretation of a clause in a will which specified a gift for the preservation of fauna and flora. The parties involved were the executors of the estate of the deceased, who was the testator, and a group of beneficiaries. The dispute was adjudicated by the Supreme Court of New South Wales. The primary legal issue was whether the gift for the preservation of fauna and flora constituted a charitable purpose, as defined by the law, and thus whether it could be enforced.

The court examined the language of the will and considered the relevant statutory provisions, particularly those pertaining to charitable gifts. It was necessary to determine if the preservation of fauna and flora fell within the scope of charitable purposes, which are traditionally understood to include relief of poverty, advancement of education, and preservation of the environment. The court also had to consider whether the gift was intended to be for the public benefit, a key element in establishing a charitable trust. Furthermore, the court needed to assess whether the gift could be enforced under the Trustee Act 1925 (NSW), section 63, which allows the court to give advice on the construction of a trust instrument.

The Supreme Court concluded that the gift for the preservation of fauna and flora was indeed charitable as it aligned with the established principles of public benefit. The court found that the gift was intended to serve the broader public interest by conserving biodiversity and protecting natural habitats. The court emphasised that such preservation efforts contribute significantly to the community, thereby satisfying the requirements of a charitable purpose. Consequently, the court ruled that the gift was valid and enforceable. As the gift was charitable, it was subject to the oversight of the court under section 63 of the Trustee Act 1925 (NSW). The court advised the trustees on the proper administration of the gift, ensuring that it was carried out in accordance with the testator's intentions and for the public benefit.

Orders