Kevin Desmond De Souza as administrator of the estate of Kin Chan SAE Yung v Attorney General of Western Australia - [2025] WASC 319

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KEVIN DESMOND DE SOUZA as administrator of the estate of KIN CHAN SAE YUNG -v- ATTORNEY GENERAL OF WESTERN AUSTRALIA [2025] WASC 319
CORAM:   HILL J
HEARD:   29 JULY 2025
DELIVERED          :   12 AUGUST 2025
FILE NO/S:   CIV 1124 of 2025
BETWEEN:   KEVIN DESMOND DE SOUZA as administrator of the estate of KIN CHAN SAE YUNG
Plaintiff

AND

ATTORNEY GENERAL OF WESTERN AUSTRALIA
Defendant

DWIGHT RANDALL
Interested Party

Catchwords:

Trusts - Charitable trusts - Failure of charitable bequest - Application for approval of a scheme to apply property to another charitable purpose - Whether failed bequest should be gifted to a different organisation - Turns on own facts

Legislation:

Charitable Trusts Act 2022 (WA) s 10, s 18, s 25

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	J T London
Defendant	:	M J Elliott
Interested Party	:	P J Hannan

Solicitors:

Plaintiff	:	Robertson Hayles Lawyers
Defendant	:	State Solicitor's Office
Interested Party	:	In person

Case referred to in decision:

Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 531

HILL J:

On 7 February 2025, the plaintiff (Mr de Souza), in his capacity as the administrator of the estate of Kin Chan Sae Yung (Mr Yung), filed an originating process seeking orders for the approval of a proposed scheme under s 18 of the Charitable Trusts Act 2022 (WA) (Act).
Mr Yung died on 25 May 2023. Under cl 7(b)(ii) of Mr Yung's will dated 19 October 2015 (Will), Mr Yung made gifts to six Christian charities located in Western Australia and Singapore.[1] One of these charities was described in the Will as 'Life Ministries'. There is no dispute that this was a reference to Life Ministries Inc (Life Ministries). While Life Ministries continues to be registered as an incorporated association, it is no longer in operation and has voluntarily revoked its charitable status. Given this, it is also not in dispute that it is now 'impossible, impracticable or inexpedient' to carry out the original purpose of the gift.
[1] Affidavit of Kevin Desmond de Souza filed 7 February 2025, 'KDS-1'.
Mr de Souza proposes that the gift to Life Ministries be redistributed equally to the other five charities named in cl 7(b)(ii) of the Will on condition that the monies be used and applied for 'the education and training of church ministers, church leaders and church members in the Christian faith and Christian service' (Scheme).
Pastor Dwight Randall sought to be heard in relation to the Scheme. Pastor Randall was a director of Life Ministries and, in 1986, founded Living Alternatives Ltd which operates under the name Pregnancy Problem House (PPH). Pastor Randall proposed that, rather than the Scheme, the failed gift be given to PPH.
For the reasons that follow, it is my view that orders should be made in terms of the originating summons to approve the proposed Scheme. Given the condition attached to the use of the gift, it is my view that the Scheme will enable the gift to be applied to a charitable purpose that is 'as close as possible to the original purpose' of the gift. I am not persuaded that a gift to PPH would achieve this aim.

Evidence on the application

At the hearing of the application, the following affidavits were read:
(a)an affidavit of Mr de Souza filed 7 February 2025;
(b)two affidavits of Jeremy Thomas London, a solicitor employed by the plaintiff's solicitors, filed 11 April 2025 and 9 May 2025; and
(c)an affidavit of Pastor Randall filed 6 June 2025.
I have been significantly assisted in the determination of this application by the submissions filed by the plaintiffs and the defendant, as well as oral submissions from counsel who appeared at the hearing.

Factual background

On 25 May 2023, Mr Yung died. Mr Yung's wife, Guat Ian Yung, died the year before her husband. Mr and Mrs Yung had one sole surviving child, Chee Unn Jonathan Timothy Yung (Jonathan Yung).
On 31 July 2023, Mr de Souza, as the duly appointed attorney of Jonathan Yung, was granted letters of administration with the Will annexed. Under cl 7(b)(ii) of the Will, Mr Yung gave 30% of his residuary estate to his executor to hold on trust to be divided as follows:
(a)10% to OMF Singapore Ltd;
(b)25% to All Nations Presbyterian Church;
(c)20% to Westminster Presbyterian Church - Presbytery of Western Australia (to go to churches other than All Nations Presbyterian Church);
(d)5% to Life Ministries;
(e)20% to Trinity Theological College Inc, half for its general fund and half for specific funds at the discretion of their Board of Trustees; and
(f)20% to Bethany Presbyterian Church.
Mr de Souza estimates that after all assets have been realised and all liabilities paid, the value of the gift that was intended to be paid to Life Ministries will be around $200,000.[2]
[2] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [10].
Prior to Mr Yung's death, Mr de Souza was acting as his solicitor in the application for the grant of probate for the estate of his wife. In considering what should be proposed for the failed gift, Mr de Souza spoke to Jonathan Yung, Pastor Randall, and Pastor van Bruchem, the pastor at All Nations Presbyterian Church, which Mr and Mrs Yung attended for over 20 years.[3]
[3] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [14].
Although Mr Yung's family were Buddhists, Mr Yung became a Christian while studying in the United Kingdom. It was in the United Kingdom that Mr and Mrs Yung met and were married. Mrs Yung's family were Protestants and attended the Bethany Presbyterian Church in Singapore.[4]
[4] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [15(a) - (d)], [33].
After their marriage, Mr and Mrs Yung lived in Hong Kong before migrating to Australia. Over this period, they were active members of several churches and communities, as well as with the Overseas Missionary Fellowship. Through Mr Yung's involvement at the All Nations Presbyterian Church, Mr Yung met Pastor Randall in the mid‑1990s and developed an interest in Life Ministries. From 1999 until its closure in 2021, Mr Yung financially supported the work of Life Ministries.[5]
[5] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [15(i) - (k)], [16(a) - (h)].
The Westminster Presbyterian Church - Presbytery of Western Australia is the overarching body administering the Presbyterian Churches in Western Australia that adhere to the Westminster denomination, including the All Nations Presbyterian Church that Mr and Mrs Yung attended.[6]
[6] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [16(h)].
During their lives, Mr and Mrs Yung were benefactors to Christian education and missionary work. They made regular donations to Trinity Theological College and to Overseas Missionary Fellowship to fund missionary work in Southeast Asia.[7]
[7] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [16(i) - (j)].
On 30 May 2024, Mr de Souza met with Jonathan Yung to discuss the Scheme. Jonathan Yung expressed the view that the gift to Life Ministries should be re‑distributed to the rest of the charities that had been nominated in cl 7(b)(ii) of the Will.[8]
[8] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [59] - [63].
On 25 June 2024, Mr de Souza submitted the Scheme to the Attorney General of Western Australia for consideration, together with supporting documents.[9]
[9] Affidavit of Kevin Desmond de Souza filed 7 February 2025 [72].
On 22 July 2024, the then Attorney General of Western Australia provided a scheme report to the solicitors for Mr de Souza (Scheme Report).[10] In the Scheme Report, the Attorney General set out his reasons for supporting the proposed Scheme, namely that the proposed Scheme was a proper one; it was capable of being approved under pt 3 of the Act; the proposed purposes, of the advancement of education and religion, were charitable and could be carried out by the proposed Scheme; and Mr de Souza had complied with pt 3 of the Act.
[10] Affidavit of Kevin Desmond de Souza filed 7 February 2025, 'KDS-20'.
On 26 March 2025, Mr de Souza advertised the proposed Scheme in The West Australian.[11] Consistent with my orders of 21 March 2025 and the requirements of s 19 of the Act, emails were sent by All Nations Presbyterian Church to its members and by Pastor Randall to the last board members of Life Ministries notifying these recipients of the Scheme and the date of the hearing of the application.[12] At that time, the date proposed for the hearing of the application was 16 May 2025 at 9.15 am. When Pastor Randall gave notice of his intention to be heard on the application, orders were made to program the filing of affidavits and submissions, and the originating process was listed for final hearing on 29 July 2025.
[11] Affidavit of Jeremy Thomas London filed 11 April 2025 [3], 'JTL1'.
[12] Affidavit of Jeremy Thomas London filed 11 April 2025 [4] - [5], 'JTL2', 'JTL3'.

Charitable Trusts Act 2022 (WA)

Section 10 of the Act applies to property that is held for a charitable purpose but is incapable of being disposed of for that purpose. Relevantly, s 10(1)(a) provides that s 10 will apply where 'it is impossible, impracticable or inexpedient to carry out the original purpose'. Where this is the case, s 10(2) of the Act requires that the property held for a charitable purpose be applied to some other charitable purpose that is 'as close as possible to the original purpose'. 'Charitable purpose' is defined in s 4 of the Act to mean a purpose that is charitable under the law of this State and includes a charitable purpose as defined in s 2 of the Charities Act 2013 (Cth).
Pursuant to s 10(4) of the Act, the persons in whom the property is vested must, as soon as reasonably practicable after becoming aware of the relevant circumstance in s 10(1), submit to the Attorney General for approval a scheme for the application of the property to an alternative charitable purpose.
Section 14 of the Act deals with submission of a scheme to the Attorney General. Section 14(3) requires the Attorney General to prepare a report about the scheme, which is defined as a scheme report. The scheme report is required to address the matters referred to in s 25(1) of the Act.
In this case, the property to which the Scheme relates has a value of approximately $200,000. For this reason, the Scheme cannot be approved by the Attorney General,[13] and must be approved by this court (pursuant to s 18 of the Act). Before the court considers an application under s 18(1) of the Act, notice of the application must be given in accordance with s 19(2) of the Act.
[13] Charitable Trusts Act 2022 (WA) s 16(1).
Subject to s 25 of the Act, the court may make an order pursuant to s 21(4) of the Act approving the scheme with or without modification or refusing to approve the scheme, as it thinks fit.
Pursuant to s 25(1) of the Act, before approving a scheme, the court must be satisfied that:
(a)the scheme is appropriate to carry out each proposed purpose and is not contrary to the law of this State or generally accepted standards of decency and propriety;
(b)the scheme can be approved under pt 3 of the Act;
(c)each proposed purpose under the scheme is a charitable purpose that can be carried out; and
(d)the requirements of pt 3 of the Act have been complied with in relation to the scheme.

Should the proposed scheme be approved by the court?

On the evidence before the court, I accept that s 10(1)(a) of the Act applies to the proposed gift to Life Ministries because it is impossible to carry out the original purpose. This gift has failed because Life Ministries, while continuing to be registered as an incorporated association, no longer exists and does not have charitable status. Under s 10(2), this gift must now be applied to a charitable purpose that is as close as possible to the original purpose.
The primary issue at the hearing was the proper characterisation of the gift's original purpose.[14] Counsel who appeared for the Attorney General emphasised that the Act placed primary emphasis on the original purpose for the gift, as opposed to the identity of the recipient.
[14] ts 11.
The preamble to the amended and restated constitution of Life Ministries (Constitution)[15] states that Life Ministries 'is a Christian ministry that exists to help Christians deal with difficult social, moral and theological issues from a biblical perspective'. Its stated desire is to help 'God's people take every thought captive to obey Christ' and thereby 'work out and live out the Christian worldview', with a focus on life, including 'the sanctity of human life, the value of married life, and the necessity of new life'.
[15] Affidavit of Dwight Allan Randall filed 6 June 2025, 'DAR1'.
The objects of Life Ministries are set out in cl 3 of the Constitution. The objects include training and educating Church members and other Christians; training ministers and other Christian leaders in effective leadership; teaching bible students, ministerial candidates and trainee missionaries; teaching and encouraging Christians to uphold and defend Christian ethics and the traditional family unit; and to produce and distribute evangelistic, religious, and other literature. The Constitution required that this work not be conducted on the lines of any particular Christian denomination.[16] These objects fall within two categories of charitable purposes in the Charities Act 2013 (Cth), namely the purpose of advancing education (s 12(1)(b)) and the purpose of advancing religion (s 12(1)(d)). These are also recognised categories at common law.[17]
[16] Affidavit of Dwight Allan Randall filed 6 June 2025, 'DAR1', cl 3(2).
[17] Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 531, 583 (Lord Macnaghten).
The Scheme proposes that the failed gift to Life Ministries be redistributed on an equal basis to the other charities referred to in cl 7(b)(ii) of the Will on condition that these funds are used for the monies be used and applied for 'the education and training of church ministers, church leaders and church members in the Christian faith and Christian service'.
Mr de Souza has adduced in evidence the constitutions (or memorandums) of each of the organisations referred to in the proposed Scheme. Relevantly:
(a)the objects of OMF Singapore include the promotion of missionary interest and training in the work of the fellowship to Christians and Churches in Singapore and the planning and conducting of camps, conferences, conventions and congresses; as well as the provision, publication, and sale of Christian and evangelistic literature;[18]
(b)the objects of All Nations Presbyterian Church include equipping 'God's people for works of service' and 'encouraging God's people to employ their spiritual gifts';[19]
(c)the objects of Westminster Presbyterian Church Presbytery of Western Australia Inc include the overseeing and facilitation of training in ministry and theology;[20]
(d)the purpose of Trinity Theological College Inc is to 'prepare men and women for ministry that upholds, proclaims and is shaped by the gospel of Christ'. Its objects include the provision of education in the Christian faith and training for Christian service;[21] and
(e)the objects of Bethany Presbyterian church include the preaching of the Christian doctrine through, among other things, training and discipleship.[22]
[18] Affidavit of Kevin Desmond de Souza filed 7 February 2025, 'KDS-5'.
[19] Affidavit of Kevin Desmond de Souza filed 7 February 2025, 'KDS-7'.
[20] Affidavit of Kevin Desmond de Souza filed 7 February 2025, 'KDS-9'.
[21] Affidavit of Kevin Desmond de Souza filed 7 February 2025, 'KDS-11' ‑ 'KDS-12'.
[22] Affidavit of Kevin Desmond de Souza filed 7 February 2025, 'KDS-13'.
Each of these organisations is registered as a charity in the relevant country in which it operates.
On the basis of this evidence, I am satisfied and find that the Scheme satisfies each of the criteria in s 25(1) of the Act. In my view:
(a)the Scheme is appropriate to carry out the original purpose of the gift and is not contrary to law or generally accepted standards of decency and properties;
(b)the Scheme can be approved under pt 3 of the Act as the alternative purpose in the Scheme is as close as possible to the original purpose of the gift in the Will;
(c)each of the five organisations are registered charities who have purposes including the advancement of religion and the advancement of education. Both of these purposes are charitable; and
(d)Mr de Souza has complied with pt 3 of the Act.
Counsel who appeared for Pastor Randall did not dispute this was the case, but contended that the gift that was intended to go to Life Ministries should instead go to PPH. Pastor Randall's evidence, which I accept, is that Mr Yung firmly believed in the sanctity of human life. This is apparent from an email exchange he had with Pastor Randall.[23] I also accept that if the gift was to go to PPH, this would be a very significant gift for that organisation.
[23] Affidavit of Dwight Allan Randall filed 6 June 2025, 'DAR11'.
The objects of PPH are set out in its constitution.[24] These include the provision of services to women, couples and families 'distressed or disadvantaged by a current, past or suspected pregnancy'. It is clear from these objects that PPH provides practical support to these groups consistent with a Christian ethos for respect for human life from fertilisation until death.
[24] Affidavit of Dwight Allan Randall filed 6 June 2025, 'DAR3'.
Counsel for Pastor Randall submitted that on a consideration of PPH's constitution as a whole, while PPH focused on the delivery of practical services rather than Christian ministry and preaching, its broader objective was on promoting life, consistent with the teachings of the Church and the gospel. Emphasis was placed on the specific objects of PPH which refer to counselling and education, as well as its honouring of the Christian ethos for all human life from fertilisation to natural death, especially for the most vulnerable and disadvantaged members of the community.[25] These objectives, in his submission, were for the charitable purposes of the advancement of education and religion, as well as relief against poverty.
[25] ts 16.
While counsel for Pastor Randall accepted that PPH is not a Christian organisation, it has Christian objectives and was linked to and had a strong connection to Life Ministries.[26] On this basis, it was submitted that PPH operated in the same area as Life Ministries, although it had a different message, and that it was an appropriate recipient of the failed gift.
[26] ts 18.
Counsel for the Attorney General denied this was the case. It was submitted that this alternative proposal did not apply the property for a charitable purpose 'as close as possible' to the original purpose of the gift, as required by s 10 of the Act. Instead, it was more consistent with what Mr Yung may have done had he known the gift to Life Ministries had failed. In the defendant's submission, the purposes of PPH were different to those of Life Ministries and, importantly, did not include the advancement of Christianity or Christian education.
For the following reasons, I have concluded that the proposed Scheme should be approved and the failed gift should not be made to PPH.
First, as set out above at [20], s 10 of the Act requires the property that is the subject of a failed gift to be applied to 'some other charitable purpose' that is 'as close as possible' to the original purpose. It is clear from the objects of Life Ministries that its primary focus is the advancement of Christianity and Christian education, including the training of ministers. In contrast, the primary focus of PPH is on the provision of practical support to women, couples and families in relation to pregnancy.

Second, while I accept that the objects of PPH are not inconsistent with the objects of Life Ministries, I do not accept that its objects are 'as close as possible' to the original gift. PPH's objects do not refer to either of the primary objects of Life Ministries. Rather, its focus is on the specific issue of pregnancy and providing support and life affirming services, including counselling and practical support to families distressed or disadvantaged by pregnancy.
Third, in my view, the objects of the recipients in the proposed Scheme, subject to the condition that the gift be used in a specific manner, are closer to the purpose of the original gift. The objects of each of these organisations emphasise the advancement of Christianity and education.

What orders for costs should be made on the application?

Section 24 of the Act gives the court power, on an application under pt 3 of the Act, to order that the costs and expenses of the proposed scheme be paid out of the property to which the scheme relates.
In this case, Mr de Souza proposes that the reasonable costs and expenses of the application be paid out of the trust property that is the subject of the Scheme.
Counsel for Pastor Randall submitted that this was the appropriate costs order and that no order should be made against Pastor Randall in respect of the costs of the application. In his submission, Pastor Randall's appearance and opposition to the Scheme was consistent with the requirement to give notice of the Scheme and ensured there was a proper contradictor.
I accept this submission. In the circumstances of this case, I am satisfied that it is appropriate to make orders in the terms sought by the plaintiff. I also note that this order is consistent with orders made by the court on similar applications in the past.

Conclusion and orders

For these reasons, I am satisfied that it is necessary for a scheme to be proposed and approved under the Act in relation to the failed gift to Life Ministries under the Will. The Scheme proposed by Mr de Souza satisfies the requirements of the Act and should be approved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Hill
12 AUGUST 2025