McLean v Attorney General of New South Wales

[2003] NSWSC 853

CITATION:	McLean v Attorney General of New South Wales [2003] NSWSC 853
HEARING DATE(S):	15 September 2003
JUDGMENT DATE:	15 September 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Cy près scheme settled
CATCHWORDS:	CHARITIES - administration and control by Court - settlement of cy près scheme - permissible extent of departure from the testator's expressed intention
CASES CITED:	McLean v Attorney General of New South Wales [2002] NSWSC 377
PARTIES :	Charley McLean - Plaintiff Attorney General of New South Wales - First Defendant Weeroona Association - Second Defendant Nerida Mary Mason - Third Defendant
FILE NUMBER(S):	SC 2277/01
COUNSEL:	RD Marshall - Plaintiff P Singleton - First Defendant L Ellison - Second Defendant G Carolan - Third Defendant
SOLICITORS:	Patey & Murphy - Plaintiff Crown Solicitor - First Defendant Harris Wheeler - Second Defendant Bartier Perry - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

MONDAY 15 SEPTEMBER 2003

2277/01 CHARLEY McLEAN – ESTATE OF WILLIAM JOSEPH LIDDELL v ATTORNEY GENERAL OF NEW SOUTH WALES & 2 ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: I gave judgment in this matter on 10 May 2002 (McLean v Attorney General of New South Wales [2002] NSWSC 377). In that judgment I found that it was appropriate for a cy près scheme to be settled concerning the residuary estate of the late William Joseph Liddell, and I directed that the Attorney-General consult with the second defendant to prepare a draft scheme in light of the reasons for judgment which have been given.

2 Today the Attorney-General brought in that draft scheme.

3 There were two substantial areas of dispute argued before me. The first was a contention put by the second defendant, to the effect that the provision of benefits to students with disabilities who were enrolled in mainstream classes at schools ought not be outside the scope of the scheme.

4 In my view, while the provision of benefits to those students is something which would clearly be meritorious, the court does not have a free hand to re-cast the provisions of the will in whatever way seems to it to be desirable. The scheme which is being settled is a cy près scheme - that means that the scheme must be one which carries into effect, as closely as is now possible, the intention which the testator had. For the reasons which I gave in the judgment on 10 May 2002, the intention of the testator was to assist disabled children who were being taught together in a specially structured learning environment. I recognise that, since the will was written in 1969, views about what is the most desirable way of dealing with the education of disabled children have changed significantly. Nonetheless, it seems to me, in seeking to settle a scheme which is as close as is practical to the disposition which the testator made in his will, I simply cannot ignore the attribute of the disposition which he made, which involved children being taught together in a specially structured learning environment, when education of disabled children in that way is still possible, and is still occurring to a significant extent. I therefore will settle the scheme on the basis that students with disabilities enrolled in mainstream classes are excluded.

5 The second area of contention concerned the identity of the schools which had specialist classes for children with disabilities, which could receive benefits, or whose students could receive benefits. The evidence at the previous hearing gave examples of schools to which students with the type of disability which was formerly catered for by the special school in Cessnock would now go, and where there were specialist classes, namely Cessnock Public School, Cessnock High School and the South Street School. Evidence today shows that there is at least one other school which is in the immediate Cessnock district, and which contains specialist classes for children with disabilities, namely the Kurri Kurri High School.

6 I am also told, today, from the Bar table, that the assets of the estate have now been realised, and that of the order of $1.32 million is in the residual estate, subject to the costs of these proceedings. It is therefore foreseeable that the trust which is established by the scheme which I am now settling is one which could continue for some time, and that the precise identity of the schools which provide specialist classes for children with disabilities, within the area which was previously catered for by the Cessnock special school, might change.

7 To deal with that possibility, it is desirable that the draft scheme which has been submitted to me should be amended so as to allow for the possibility of any other school, beyond the three ones which were identified on previous hearing, which conducts a specialist class or classes for children with disabilities, and where there is a significant connection between the children in those classes and the Cessnock area, being within the potential class of beneficiaries of the trust.

8 To cater for the possibility that the identity of such schools might change from time to time, some consequential drafting changes are also desirable.

9 I have made changes to give effect to the matters that I have referred to in these reasons by amending the draft scheme. I order that the residuary estate of William Joseph Liddell be administered in accordance with a scheme in the form of the document which I initial, date today's date and shall place with the papers. I make orders in accordance with short minutes of order which I initial, date today's date and shall place with the papers. I will amend para 2 of the scheme so that it says:

“The capital and income of the Trust is to be applied by the executor by paying one million dollars to the Trustee by 30 September 2003, and the balance of the capital and income of the Trust to the Trustee within twenty-eight days after whichever last occurs of the payment of costs in accordance with the Order establishing this scheme and the passing of final accounts by the executors.”
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Last Modified: 09/25/2003