Kostka v The Ukrainian Council of NSW Incorporated

In the matter of Kostka v The Ukrainian Council of NSW Incorporated, the Full Court of the Federal Court of Australia considered the charitable status of a gift to the Ukrainian Council of NSW, a body that provides support to Ukrainian women and their families. The dispute arose when the testator left a significant bequest to the Council, which the executors sought to have declared charitable. The Council contended that the bequest should be upheld as charitable, while the executors argued it was not charitable and should be subject to a cy-près scheme.

The court was required to determine whether the gift was intended to be charitable and, if so, whether it was sufficiently charitable to be upheld. Additionally, the court needed to decide whether a cy-près scheme could be ordered in the absence of an express trust. The primary issue was whether the gift to the Ukrainian Council constituted a valid charitable purpose under Australian law.

The court found that the gift was indeed intended to be charitable, focusing on the Council's role in supporting Ukrainian women and their families. The court acknowledged that while the Council's activities were not exclusively charitable, they had a significant charitable component. The court held that the gift could be upheld as charitable because it fell within the broad interpretation of charitable purposes under Australian law. Furthermore, the court concluded that a cy-près scheme could be ordered even in the absence of an express trust, provided the gift was intended to benefit the public or a section of the public. The court's decision affirmed the charitable nature of the bequest and allowed for the application of a cy-près scheme.

The court ordered that the gift to the Ukrainian Council of NSW be upheld as charitable and that a cy-près scheme be implemented to ensure the funds are applied for charitable purposes. The executors were directed to transfer the bequest to a suitable charitable entity or entities, in accordance with the court's directions. This outcome ensured that the testator's intentions were respected while also ensuring the funds would be used for charitable purposes.