Kieninger v Perpetual Trustee Company Ltd - [2017] QSC 20

SUPREME COURT OF QUEENSLAND

CITATION:

Kieninger v Perpetual Trustee Company Ltd & Anor [2017] QSC 020

PARTIES:

PAMELA JANE KIENINGER

(applicant)

v

PERPETUAL TRUSTEE COMPANY LIMITED ACN 000 001 007 (EXECUTOR OF THE WILL OF KENNETH HARDIE DECEASED)

(first respondent)

CANCER COUNCIL QUEENSLAND ACN 009 784 356

(second respondent)

FILE NO/S:

BS No 10231 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

Further evidence and submissions provided on 18 November 2016, 1 December 2016 and 8 December 2016

JUDGE:

Martin J

ORDER:

It is declared that, as at 13 January 2015:

(a)     there was not in existence a charitable organisation in Queensland similar to Cancer Council Queensland, which conducted cancer research; and

(b)     there is no reasonable prospect that it would be practicable:

(i)      prior to the death of the life tenant under the will, Pamela Jane Kieninger; or

(ii)     within a reasonable period of such death;

that any such organisation would come into existence so as to permit the intentions of the deceased to be carried into effect.

CATCHWORDS:

CHARITIES – CHARITABLE GIFTS AND TRUSTS – IN GENERAL – CONSTRUCTION –ASCERTAINMENT OF OBJECTS – GENERALLY – GENERAL PRINCIPLES – where the will of the deceased established a trust – where Cancer Council Queensland (CCQ) sought a declaration that there was not in existence a charitable organisation in Queensland similar to CCQ that conducted cancer research – where CCQ sought a declaration that there was no reasonable prospect that a similar organisation would come into existence – where the first respondent submitted otherwise – whether such a declaration should be made

Succession Act1981 (Qld)

Attorney-General for New South Wales v Perpetual Trustee Co Ltd & Ors (1966) 115 CLR 581
Kieninger v Perpetual Trustee Company Ltd & Anor [2016] QSC 186
Mays v Roberts [1928] SASR 217
Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290

COUNSEL:

R M Treston QC for the first respondent

D B Fraser QC for the second respondent

SOLICITORS:

McCullough Robertson for the first respondent

HopgoodGanim Lawyers for the second respondent

In August 2016 this application was adjourned[1] in order that the parties might provide further evidence and submissions.
[1] See Kieninger v Perpetual Trustee Company Ltd & Anor [2016] QSC 186.
The second respondent (CCQ) now seeks leave, which is granted, to amend the relief sought in its application so that it reads as follows:
“That pursuant to s 6 of the Succession Act1981 (Qld) it be declared that as at 13 January 2015:
(a)there was not in existence a charitable organisation in Queensland similar to Cancer Council Queensland, which conducted cancer research; and
(b)there was no reasonable prospect that it would be practicable:
(i) prior to the death of the life tenant under the will, Pamela Jane Kieninger; or
(ii) within a reasonable period of such death;
that any such organisation would come into existence so as to permit the intentions of the…

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.

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Details

Case: [2017] QSC 20
Decision Date: 28 February 2017

CaseChat Overview and Summary

In the case of Kieninger v Perpetual Trustee Company Ltd, the dispute arose from the interpretation of a trust established by a will. The primary issue was whether Cancer Council Queensland (CCQ) was entitled to a declaration that no similar charitable organisation existed in Queensland that conducted cancer research. Additionally, CCQ sought a declaration that there was no reasonable prospect of such an organisation emerging in the foreseeable future. The first respondent, Perpetual Trustee Company Ltd, disagreed with CCQ’s assertions and submitted that there was a possibility of a similar organisation coming into existence. The matter was determined in the Supreme Court of Queensland.

The legal issues before the court involved the ascertainment of the objects of the charitable trust established by the will. The court had to decide if the trust was invalid due to uncertainty regarding the beneficiaries, and whether CCQ could be declared as the sole beneficiary. The court needed to evaluate the existence and future prospects of other charitable organisations conducting cancer research in Queensland, and how this affected the validity of the trust.

The court examined the evidence provided by both parties and considered the current state of charitable organisations in Queensland that conducted cancer research. It concluded that as of the specified date, there was no other organisation in Queensland that conducted cancer research similar to CCQ. Additionally, the court found that there was no reasonable prospect of a similar organisation coming into existence within the relevant timeframe. Therefore, the court granted the declarations sought by CCQ, finding that it was the only suitable charitable beneficiary of the trust.

The final orders of the court declared that, as at 13 January 2015, there was no charitable organisation in Queensland similar to CCQ conducting cancer research, and there was no reasonable prospect that such an organisation would come into existence within the relevant timeframe. This decision affirmed CCQ’s position as the sole beneficiary of the charitable trust established by the will.

Orders

Orders of the court

It is declared that, as at 13 January 2015:

(a) there was not in existence a charitable organisation in Queensland similar to Cancer Council Queensland, which conducted cancer research; and

(b) there is no reasonable prospect that it would be practicable:

(i) prior to the death of the life tenant under the will, Pamela Jane Kieninger; or

(ii) within a reasonable period of such death;

that any such organisation would come into existence so as to permit the intentions of the deceased to be carried into effect.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kieninger v Perpetual Trustee Company Ltd & Anor [2017] QSC 020
PARTIES:	PAMELA JANE KIENINGER (applicant) v PERPETUAL TRUSTEE COMPANY LIMITED ACN 000 001 007 (EXECUTOR OF THE WILL OF KENNETH HARDIE DECEASED) (first respondent) CANCER COUNCIL QUEENSLAND ACN 009 784 356 (second respondent)
FILE NO/S:	BS No 10231 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	Further evidence and submissions provided on 18 November 2016, 1 December 2016 and 8 December 2016
JUDGE:	Martin J
ORDER:	It is declared that, as at 13 January 2015: (a) there was not in existence a charitable organisation in Queensland similar to Cancer Council Queensland, which conducted cancer research; and (b) there is no reasonable prospect that it would be practicable: (i) prior to the death of the life tenant under the will, Pamela Jane Kieninger; or (ii) within a reasonable period of such death; that any such organisation would come into existence so as to permit the intentions of the deceased to be carried into effect.
CATCHWORDS:	CHARITIES – CHARITABLE GIFTS AND TRUSTS – IN GENERAL – CONSTRUCTION –ASCERTAINMENT OF OBJECTS – GENERALLY – GENERAL PRINCIPLES – where the will of the deceased established a trust – where Cancer Council Queensland (CCQ) sought a declaration that there was not in existence a charitable organisation in Queensland similar to CCQ that conducted cancer research – where CCQ sought a declaration that there was no reasonable prospect that a similar organisation would come into existence – where the first respondent submitted otherwise – whether such a declaration should be made Succession Act1981 (Qld) Attorney-General for New South Wales v Perpetual Trustee Co Ltd & Ors (1966) 115 CLR 581 Kieninger v Perpetual Trustee Company Ltd & Anor [2016] QSC 186 Mays v Roberts [1928] SASR 217 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290
COUNSEL:	R M Treston QC for the first respondent D B Fraser QC for the second respondent
SOLICITORS:	McCullough Robertson for the first respondent HopgoodGanim Lawyers for the second respondent