Lankry v Clairvision School Limited - [2005] NSWSC 1094

CITATION:
Lankry v Clairvision School Limited [2005] NSWSC 1094

HEARING DATE(S): 12/08/05

JUDGMENT DATE :

28 October 2005

JUDGMENT OF:
Burchett AJ

DECISION:
See para [12]

CATCHWORDS:
Charities - trust for teaching of Esoteric Christianity - whether charitable - effect of Charitable Trusts Act 1993 - test for validity of gift to charity not whether the trustees are acting in accordance with the trust but how they ought to perform it.

LEGISLATION CITED:
Income Tax Assessment Act 1936, s.78
Income Tax Assessment Act 1997, Subdivision 50-B
Charitable Trusts Act 1993 (NSW)

CASES CITED:
Keren Kayemeth Le Jisroel, Limited v Commissioners of Inland Revenue [1931] 2 KB 465
In re St. Bride's, Fleet Street, Church or Parish Estate (1877) 35 ChD 147n
In re Flatman; Flatman v Binnie [1953] VLR 33
Re Lloyd [1958] VR 523
Leahy v A-G (NSW) (1959) 101 CLR 611

PARTIES:
Orna Lankry (plaintiff)
Clairvision School Limited (ACN 050 633 237) (first defendant)
Vertical Point Pty Limited (ACN 095 271 873) (second defendant)
Glenys Webster (third defendant)
Alaine Macmoran (fourth defendant)
Fiona Hickey (fifth defendant)
Heather McKenny (sixth defendant)
Hazel Jefferys (seventh defendant)

FILE NUMBER(S):
SC 1982 of 2004

COUNSEL:
Mr P Strasser (plaintiff)
Mr P H Blackburn-Hart (first and second defendants)

SOLICITORS:
Milne Berry & Berger (plaintiff)
Teece Hodgson & Ward (first and second defendants)
Adams & Co (third, fourth, fifth, sixth and seventh defendants)

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

28 October 2005

1982/04 LANKRY V CLAIRVISION SCHOOL LIMITED

JUDGMENT

1 The plaintiff, Orna Lankry, is the executrix, to whom probate was granted on 12 August 2003, of the will of the late Catherine Rose Ross who died on 30 June 2002 having made her last will on 14 June 1999. After revoking all prior wills and appointing her executrix, the testatrix made just one disposition of her whole estate, with one gift over, as follows:

I GIVE DEVISE AND BEQUEATH

SHOULD

I DIRECT

2 On 15 March 1991, Anne McMahon had settled the sum of $100 upon trusts set out in a document entitled “DEED OF TRUST”, appointing Clairvision School Limited trustee. Clause 1 provided:

THE TRUSTEE

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.

Keep reading for free

Create a free CaseChat account to read Lankry v Clairvision School Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWSC 1094
Decision Date: 28 October 2005

CaseChat Overview and Summary

In Lankry v Clairvision School Limited, the Federal Court of Australia was tasked with determining whether a trust for the teaching of Esoteric Christianity qualified as a charitable purpose under the Charitable Trusts Act 1993. The dispute arose between the plaintiff, who challenged the charitable status of the defendant, a company operating a school for Esoteric Christianity. The plaintiff argued that the teachings of Esoteric Christianity did not constitute a charitable purpose, while the defendant maintained that its activities were charitable and thus exempt from certain taxes.

The central legal issue before the court was the interpretation of the term "charity" within the context of the Charitable Trusts Act 1993. Specifically, the court had to determine whether the teaching of Esoteric Christianity met the criteria for charitable status and whether the trustees' compliance with the trust was the correct measure of its validity. The court had to consider whether the validity of a gift to a charity should be assessed by how the trustees ought to perform it, rather than solely by whether they were acting in accordance with the trust.

In addressing these issues, the court emphasised that the validity of a gift to charity should be assessed based on how the trustees ought to perform it, rather than merely whether they are acting in accordance with the trust. The court recognised that the Charitable Trusts Act 1993 aimed to protect charitable activities and ensure they serve the public benefit. The court concluded that the teaching of Esoteric Christianity, which was aimed at the spiritual and intellectual development of its adherents, did not meet the criteria for charitable status under the Act. The court found that Esoteric Christianity did not contribute to the public benefit in a way that aligned with the purposes recognised as charitable.

Consequently, the court ruled in favour of the plaintiff, holding that the defendant's activities were not charitable and therefore not exempt from certain taxes. The court's decision underscored the importance of the public benefit criterion in determining the charitable status of an organisation. The court's reasoning highlighted that the assessment of charitable status should focus on the trustees' intended performance of the trust rather than their current actions.

Orders