Kieninger v Perpetual Trustee Company Ltd - [2016] QSC 186

SUPREME COURT OF QUEENSLAND

CITATION:

Kieninger v Perpetual Trustee Company Ltd & Anor [2016] QSC 186

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:

24 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2016; 4 April 2016; 18 May 2016 (supplementary written submissions of the first respondent); 23 May 2016 (supplementary written submissions of the second respondent)

JUDGE:

Martin J

ORDER:

Application adjourned.

CATCHWORDS:

CHARITIES – CHARITABLE GIFTS AND TRUSTS – VALIDITY AND PRACTICABILITY – GIFT FOR CHARITABLE OBJECT: PRACTICABILITY – TEST AND TIME FOR DETERMINING – where the will of the deceased established a trust – where the trust income was to be distributed to the applicant (the deceased’s daughter) and the Cancer Council Queensland (CCQ) – where, on the applicant’s death, that trust would terminate and a second trust would be created with the first respondent (Perpetual) as trustee – where the trust’s income was to be distributed to CCQ and ‘any other similar charitable organisation in Queensland which conducts cancer research’ – where Perpetual brought an application after following the applicant’s successful family provision application effectively varying the effect of the first trust and otherwise proposing to execute the second trust in accordance with the will – where CCQ sought a declaration that, at the date of the testator’s death, there was no ‘other similar organisation in Queensland which conduct[ed] cancer research’ – where such a declaration would put CCQ in a position to call for the entire corpus of the trust fund following the applicant’s death – whether the date for determining whether CCQ is the sole beneficiary of the second trust is the date of the testator’s death – whether the test requires an inquiry not merely as to the practicability of the immediate execution of the trust after the testator’s death, but as to the existence of a reasonable possibility that the trust could be executed at some future time

CHARITIES – CHARITABLE GIFTS AND TRUSTS – IN GENERAL – CONSTRUCTION – ASCERTAINMENT OF OBJECTS – GENERALLY – GENERAL PRINCIPLES – where CCQ submitted that there was no ‘other similar organisation in Queensland which conduct[ed] cancer research’ as at the date of the testator’s death – where Perpetual adduced evidence suggesting otherwise – whether the Court was in a position to answer this question

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – PARTICULAR CASES – where Perpetual brought an application that it was justified in administering a trust created by a will in a certain manner following the applicant’s family provision application – where CCQ brought a cross-application regarding the administration of those trusts – whether CCQ’s application, if successful, would leave it in a position…

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: [2016] QSC 186
Decision Date: 24 August 2016

CaseChat Overview and Summary

The case of Kieninger v Perpetual Trustee Company Ltd involved the interpretation and execution of a trust established by the deceased's will. The trust was to distribute its income between the deceased's daughter and the Cancer Council Queensland (CCQ). Upon the daughter's death, a second trust would be created, with Perpetual as trustee, and its income distributed to CCQ and any other similar charitable organisation in Queensland conducting cancer research. The dispute arose when Perpetual applied to the court following a successful family provision application by the daughter, which varied the effect of the first trust. CCQ sought a declaration that, at the date of the testator's death, there was no other similar charitable organisation in Queensland conducting cancer research, which would position it to call for the entire corpus of the trust fund following the daughter's death.

The legal issues before the court centred on the timing and scope of the inquiry into the practicability of executing the charitable trust, specifically whether the test should be applied at the date of the testator's death or if it required an inquiry into the future possibility of executing the trust. Additionally, the court had to determine whether it was in a position to ascertain the existence of other similar charitable organisations as at the date of the testator's death, given the conflicting evidence presented by the parties.

The court's reasoning focused on the principles governing charitable trusts, particularly the ascertainment of charitable objects and the construction of trust instruments. It held that the test for the validity and practicability of the charitable trust should consider the immediate execution of the trust at the testator's death but also required an inquiry into whether there was a reasonable possibility that the trust could be executed at some future time. The court found that it could not definitively answer whether there was another similar charitable organisation in Queensland conducting cancer research as at the date of the testator's death, given the evidence presented. Consequently, the court decided to adjourn the application to allow for further investigation into this matter.

The orders of the court were to adjourn the application, providing time for further evidence and investigation regarding the existence of other similar charitable organisations in Queensland conducting cancer research as at the date of the testator's death.

Orders

Orders of the court

Application adjourned.

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 [2016] QSC 186
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:	24 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2016; 4 April 2016; 18 May 2016 (supplementary written submissions of the first respondent); 23 May 2016 (supplementary written submissions of the second respondent)
JUDGE:	Martin J
ORDER:	Application adjourned.
CATCHWORDS:	CHARITIES – CHARITABLE GIFTS AND TRUSTS – VALIDITY AND PRACTICABILITY – GIFT FOR CHARITABLE OBJECT: PRACTICABILITY – TEST AND TIME FOR DETERMINING – where the will of the deceased established a trust – where the trust income was to be distributed to the applicant (the deceased’s daughter) and the Cancer Council Queensland (CCQ) – where, on the applicant’s death, that trust would terminate and a second trust would be created with the first respondent (Perpetual) as trustee – where the trust’s income was to be distributed to CCQ and ‘any other similar charitable organisation in Queensland which conducts cancer research’ – where Perpetual brought an application after following the applicant’s successful family provision application effectively varying the effect of the first trust and otherwise proposing to execute the second trust in accordance with the will – where CCQ sought a declaration that, at the date of the testator’s death, there was no ‘other similar organisation in Queensland which conduct[ed] cancer research’ – where such a declaration would put CCQ in a position to call for the entire corpus of the trust fund following the applicant’s death – whether the date for determining whether CCQ is the sole beneficiary of the second trust is the date of the testator’s death – whether the test requires an inquiry not merely as to the practicability of the immediate execution of the trust after the testator’s death, but as to the existence of a reasonable possibility that the trust could be executed at some future time CHARITIES – CHARITABLE GIFTS AND TRUSTS – IN GENERAL – CONSTRUCTION – ASCERTAINMENT OF OBJECTS – GENERALLY – GENERAL PRINCIPLES – where CCQ submitted that there was no ‘other similar organisation in Queensland which conduct[ed] cancer research’ as at the date of the testator’s death – where Perpetual adduced evidence suggesting otherwise – whether the Court was in a position to answer this question EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – PARTICULAR CASES – where Perpetual brought an application that it was justified in administering a trust created by a will in a certain manner following the applicant’s family provision application – where CCQ brought a cross-application regarding the administration of those trusts – whether CCQ’s application, if successful, would leave it in a position…