New South Wales Women's Aboriginal Corporation (in liquidation) v Commissioner of Dormant Funds

[2004] NSWSC 202

CITATION:	New South Wales Women's Aboriginal Corporation (in liquidation) v Commissioner of Dormant Funds [2004] NSWSC 202
HEARING DATE(S):	20 November 2003
JUDGMENT DATE:	24 March 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1) The Court expresses its opinion that upon the facts herein the Commissioner of Dormant Funds may determine the Trust Funds to be a dormant fund; (2) The Court gives to the First Plaintiff its advice and to the Second Plaintiff the direction that they would be justified in approaching the Commissioner of Dormant Funds with a request that he determine the Trust Funds to be a dormant fund; (3) I order that the costs of the Plaintiffs and of the Second Defendant be paid out of the Trust Funds; (4) I order that the balance of the Amended Summons be stood over generally, with liberty to restore on 7 days notice.
CATCHWORDS:	Trusts and trustees - Charities - Trustee in liquidation - Whether trust funds constitute a dormant fund - Judicial advice.
LEGISLATION CITED:	Aboriginal Councils and Associations Act 1976 (Cth) Charitable Trusts Act 1993 Corporations Act 2001 Dormant Funds Act 1942 Trustee Act 1925
PARTIES :	New South Wales Women's Aboriginal Corporation (in liquidation) (First Plaintiff) Gregory Winfield Hall as liquidator of New South Wales Women's Aboriginal Corporation (in liquidation) (Second Plaintiff) Commissioner of Dormant Funds (First Defendant) Attorney-General for the State of New South Wales (Second Defendant)
FILE NUMBER(S):	SC 3847/03
COUNSEL:	G. Lucarelli (Plaintiffs) N. Sharp (Second Defendant)
SOLICITORS:	Minter Ellison Lawyers (Plaintiffs) P.J. Whitehead, Solicitor for the Public Trustee (First Defendant, submitting appearance) I.V. Knight, Crown Solicitor (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 24 March 2004

3847/03 NEW SOUTH WALES WOMEN’S ABORIGINAL CORPORATION (IN LIQUIDATION) and ANOR -v- COMMISSIONER OF DORMANT FUNDS and ANOR

JUDGMENT

1 MASTER: These proceedings were instituted by summons filed on 16 July 2003. Subsequently, there was filed an amended summons on 14 August 2003. The Plaintiffs named in the amended summons are New South Wales Women’s Aboriginal Corporation (In Liquidation), the First Plaintiff, and Gregory Winfield Hall as liquidator of New South Wales Women’s Aboriginal Corporation (In Liquidation), Second Plaintiff. The Defendants named in the proceedings are Commissioner of Dormant Funds, First Defendant, and the Attorney-General for the State of New South Wales, Second Defendant.

2 The proceedings relate to certain funds given to the First Plaintiff in accordance with the will of the late Ida Margaret Howie (to whom I shall refer as “the Deceased”). The First Plaintiff during the period from 1992 to 1994 received a total amount of $465,143, being the residual estate of the Deceased. By her will the Deceased gave her residual estate upon terms probably amounting to a charitable trust, the purpose of such trust being to assist the education of Aboriginal women.

3 The Deceased made her will on or about 21 May 1990. For reasons which do not from the evidence emerge with any clarity the precise date of death of the Deceased is not set forth (one would think that her date of death would be disclosed in the Probate), although the statement of facts says, in paragraph 9, that “at sometime thereafter, but before June 1992, Ms Howie passed away”.

4 Clause 5 of the will is in the following terms,

I GIVE the rest and residue of my estate to the NEW SOUTH WALES WOMEN’S ABORIGINAL CORPORATION, c/o Department of Family and Community Service to be used by that Foundation for the assistance of Aboriginal women with emphasis on the education of Aboriginal women.

5 The Deceased, who was aged seventy-seven at the time of her death, never married and had no children.

6 The relief sought in the amended summons may be divided into a number of discrete areas. One discrete area consists of a claim for judicial advice pursuant to section 63 of the Trustee Act 1925, and equivalent relief by way of directions pursuant to section 479(3) of the Corporations Act 2001 and pursuant to the inherent jurisdiction of the Court, concerning the operation of the Dormant Funds Act 1942 in relation to the funds given by the Deceased to the First Plaintiff, and concerning the operation of the Charitable Trusts Act 1993 in relation to those funds. (Relief by way of the appointment of a new trustee to the trusts created by the residuary gift in the will of the Deceased is sought, but will become necessary only in the event that the provisions of the Dormant Funds Act do not have application to the foregoing funds.)

7 Another discrete area of relief relates to the effect of the provisions of the Dormant Funds Act on what is referred to in the amended summons as the Trust Funds.

8 A third discrete area of relief relates to the remuneration of the Second Plaintiff as liquidator of the First Plaintiff.

9 By a notice of motion filed on behalf of the Second Defendant, the Attorney-General for the State of New South Wales, on 11 September 2003, the Second Defendant sought various procedural orders, and in particular sought an order that certain prayers for relief in the amended summons be stood over until the Court had given its advice and direction pursuant to other prayers for relief in the amended summons. For the reasons expressed by me in my oral extempore judgment delivered on 19 September 2003, I made the orders sought in paragraphs 1 and 4 in the aforesaid notice of motion. I also fixed the hearing of the claim for relief pursuant to prayers 2(a) and (b) and 8(a) and (b) in the amended summons for 20 November 2003 before myself.

10 Those paragraphs of the Amended Summons are as follows,

2. The opinion, advice and direction of the Court pursuant to section 63 of the Trustee Act 1925 (NSW) concerning:
(a) the operation of the Dormant Funds Act 1942 (NSW) to funds (“Trust Funds”) bequeathed to the first plaintiff in accordance with the last Will and Testament of Ida Margaret Howie dated 21 May 1990 (“Ida Howie Trust”);
(b) the operation of the Charitable Trusts Act 1993 (NSW) to the Trust Funds
…
8. Directions pursuant to section 479(3) of the Corporations Act 2001 (Cth) or judicial advice of the Court pursuant to the Court’s inherent jurisdiction over its own officers, concerning:
(a) the operation of the Dormant Funds Act 1942 (NSW) to the Trust Funds;
(b) the operation of the Charitable Trusts Act 1993 (NSW) to the Trust Funds.
…

11 In accordance with the usual practice in this regard, the Plaintiffs on 21 July 2003 filed a statement of facts.

12 It is appropriate that I here set forth the following extract from that part of the statement of facts which is headed Overview,

1. The first plaintiff is an Aboriginal Corporation (“Corporation”). During 1992 to 1994 it received $465,143 being the residual estate of Ida Margaret Howie.
2. The will bequeathed the residual estate upon terms probably amounting to a charitable trust. The purpose of the trust being to assist the education of Aboriginal women.
3. The Corporation did not apply the funds towards achieving the trust purpose (or any purpose) and was put into provisional liquidation on 2 May 2000, following an investigation by the Registrar of Aboriginal Corporations.
4. The Corporation subsequently went into liquidation and since on or about August 2001, an amount of $570,961 has been on deposit in an interest bearing account, representing the residual estate of the deceased, plus interest.
5. The Corporation has no other assets and no pre-liquidation creditors.

13 An amended statement of facts was filed on behalf of the Plaintiffs on 14 August 2003. That amended statement of facts does not make any material alterations to the facts set forth in the statement of facts which was originally filed in the proceedings.

14 Paragraph 33 of the amended statement of facts is in the following terms,

The facts thus raise the issue of the respective operation of the Dormant Funds Act and Charitable Trusts Act to funds that are impressed with a charitable trust and are a “dormant fund” within the meaning of the Dormant Funds Act .

15 As has already been observed, the present application seeks the opinion, advice and direction of the Court pursuant to section 63 of the Trustee Act in respect to what might be described as the competing application of two statutes, being the Dormant Funds Act 1942 and the Charitable Trusts Act 1993, to the Trust Funds (thus identified in the amended summons) which are presently held by the Second Plaintiff as liquidator of the First Plaintiff; and seeks directions pursuant to section 479(3) of the Corporations Act 2001 (Commonwealth) or judicial advice of the Court pursuant to the Court’s inherent jurisdiction over its own officers in respect to the application of the foregoing statutes to the Trust Funds. The relief sought in prayer 2 of the amended summons is sought on behalf of the First Plaintiff, whilst the relief sought in prayer 8 is sought on behalf of the Second Plaintiff, who is the liquidator of the First Plaintiff.

16 The First Plaintiff, in seeking the relief claimed in prayer 2 of the amended summons, invokes the statutory jurisdiction vested in the Court pursuant to section 63 of the Trustee Act, whilst the Second Plaintiff, in seeking the relief claimed in prayer 8 of the amended summons, invokes not only the statutory jurisdiction vested in the Court pursuant to section 479(3) of the Corporations Act, but also what is described in prayer 8 as “the Court’s inherent jurisdiction over its own officers”. It will be appreciated, however, that the opinion, advice and direction which the Court may give to the First Plaintiff, on the one hand, and the directions which the Court may give to the Second Plaintiff, on the other hand, concerning whether the Trust Funds should (to use a somewhat generally descriptive phrase) be dealt with in accordance with the Dormant Funds Act or should be dealt with in accordance with the Charitable Trusts Act will ultimately have the same practical consequences for the Plaintiffs.

17 The reference in prayer 8 to “the Court’s inherent jurisdiction over its own officers” is, of course, a reference to the fact that the Second Plaintiff is an officer of the Court, having been appointed liquidator of the First Plaintiff by order of Mr Justice Windeyer made on 19 June 2001.

18 One of the orders made by His Honour on that occasion (which orders were entered on the same date) was order 4, in the following terms,

That the liquidator apply to the Court for directions in respect of any distribution of funds received from the estate of Ida Margaret Howie unless the liquidator determines to appoint a new trustee to such funds to be held upon the terms of the will of the said Ida Margaret Howie.

19 A submitting appearance was filed on behalf of the First Defendant, the Commissioner of Dormant Funds, on 25 July 2003. There was no appearance for the First Defendant at the hearing on 20 November 2003. Nevertheless, an affidavit of Brian Michael James Maher, the Acting General Counsel for the Office of the Public Trustee, was filed on behalf of the Second Defendant and was read at the hearing of the proceedings. That affidavit sets forth information concerning the office of Commissioner of Dormant Funds, which office is held by the person holding the office of Public Trustee, pursuant to section 4(2) of the Dormant Funds Act; and information concerning the manner in which the Commissioner (whose office has been in operation since 15 February 1943) deals with applications in relation to dormant funds.

20 Pursuant to directions made by me in that regard, I have had the benefit of receiving written outlines of submissions filed on behalf of the Attorney-General on 10 October 2003 and written outlines of submissions in reply filed on behalf of the Plaintiffs on 31 October 2003. Those written outlines will be retained in the Court file.

21 I have already observed that, at least to an extent, the present application has the practical effect of raising for determination the question as to whether the funds given by the will of the Deceased to the Plaintiff should now be administered in accordance with the Dormant Funds Act 1942 or should be administered in accordance with the Charitable Trusts Act 1993.

22 It is appropriate here to record that there are no judicial decisions on the operation of the Dormant Funds Act (or, at least none that the researches of Counsel or of myself have discovered), despite that statute having been enacted nearly sixty-two years ago. Although there are a number of judicial decisions on the operation of the Charitable Trusts Act, none of them are of assistance in the instant case.

23 The respective legislative schemes manifested by those two statutes are separate and distinct (although it should at the outset be observed that the Charitable Trusts Act expressly provides, by section 4(3), that that Act does not apply to the exclusion of the provisions of any other Act relating to charitable trusts. That is, as I understand it, the provisions of the 1993 Act are not to be regarded as a code in respect to charitable trusts. Nevertheless, the ordinary rules of statutory construction must be applied where there appears to be any inconsistency between provisions of the 1993 Act and those of some other statute.

24 It should also be appreciated that the 1993 Act deals only with charitable trusts, whilst the 1942 Act also deals with funds that need not be charitable in their nature.

25 At the outset, Counsel for the Plaintiffs identified two questions which, in his submission, should be addressed by the Court for the purposes of the present application. Those questions were:

(a) Is there a Fund?

(b) If so, is it a Dormant Fund?

26 The Plaintiffs submit that question (a) should be answered Yes, and question (b) should be answered No. The Second Defendant submits that question (a) should be answered Yes, and question (b) should be answered Yes.

27 Since all participating parties were in agreement that the moneys given by the Deceased to the First Plaintiff, and which are presently identifiable in the hands of the Second Plaintiff, constitute a Fund, the submissions on behalf of the Plaintiffs on the one hand and of the Second Defendant on the other hand were directed to the question whether that fund is a dormant fund of the nature described in section 5A of the Dormant Funds Act.

28 In considering that question, it is appropriate that I should refer to a number of the provisions of the 1942 Act. Section 2 defines the term “fund” to mean

[A]ny property, real or personal, which has been donated to or collected or otherwise acquired by trustees for any charitable purpose, or any purpose of a public character, and, in the case of a fund that has been partly used for the purposes for which it was donated, collected or otherwise acquired, means the residue of that fund.

29 The phrase “purpose of a public character” is defined in section 2, that definition containing an exclusion of a charitable purpose. The phrase “dormant fund” is defined to mean a fund determined under section 5A to be a dormant fund. Subsection (1) of that section provides, relevantly,

The Commissioner may determine a fund to be a dormant fund if satisfied that:

(a) for at least the immediately preceding 6 years, the trustees have not used the fund genuinely for the purposes for which it was donated, collected or otherwise acquired, or
(b) it is not practicable to use the fund for those purposes, or
(c) it is unlikely that those purposes will be achieved within a reasonable time, or
(d) the trusts, or the objects of the trusts or the purposes, for which the fund was donated, collected or otherwise acquired are uncertain or cannot be ascertained, or
…
A fund is not to be regarded as having been used as referred to in paragraph (a) merely because the fund is invested or merely because the proceeds of investment have been placed on deposit or have been added to the fund.

30 As I have already observed, the present proceedings are constituted as an application of the nature commonly referred to as an application for judicial advice (being, in the instant case an application by the First Plaintiff, the trustee, for the opinion, advice and direction of the Court pursuant to section 63 of the Trustee Act 1925 and by the Second Plaintiff, the liquidator, for directions pursuant to section 479(3) of the Corporations Act and pursuant to the inherent jurisdiction of the Court). I query the effect and consequences of that judicial advice upon the Commissioner of Dormant Funds (who although named as the First Defendant, has not participated in the proceedings). That is because the purpose of relief of the foregoing nature is to protect persons (here the trustee and the liquidator) who act in accordance with such judicial advice. In my understanding the jurisdiction vested in the Court to grant such foregoing relief is not to be regarded as a substitute for the statutory arrangements concerning charitable trusts established by the Charitable Trusts Act (in particular Part 4 of that statute).

31 But, in any event (and probably more significantly in the light of the realities of the instant case), the power to determine a fund to be a dormant fund is by section 5A(1) of the Dormant Funds Act committed to the discretion of the Commissioner, in circumstances where he is satisfied of one or more of the various matters then listed in that subsection.

32 Further, the Charitable Trusts Act, in vesting the Attorney-General with power for the establishment of schemes for administration of charitable trusts (by the provisions of Part 4 of the Act), that being a power which in the instant case is sought to be invoked by the Plaintiffs (in prayer 6 of the amended summons), expressly prohibits charitable trust proceedings (that phrase being defined in section 5 of the Act) from being commenced in the Supreme Court unless the Attorney-General has authorised the bringing of the proceedings, or unless leave to bring the proceedings has been obtained from the Court (section 6).

33 In the instant case no such authorisation has been given by the Attorney-General, neither has the leave of the Court been sought (let alone obtained), to seek the relief claimed in prayer 6 of the amended summons. That relief clearly comes within the category of “proceedings… with respect to the administration of a charitable trust” contained in the definition of “charitable trust proceedings” in section 5(1) of the Charitable Trusts Act.

34 It is the primary submission on behalf of the Plaintiffs that in the instant case the Trust Funds are under the control of a Court appointed liquidator, and that the Dormant Funds Act does not, and could never have been intended to, apply to funds under the control of a Court appointed liquidator.

35 In regard to the definition (strictly, a description, until the fund is so determined by the Commissioner) of a dormant fund contained in section 5A(1) of the 1942 Act the Plaintiffs submit that that definition does not apply in the circumstances of the instant case for the following reasons:

(a) because on its proper construction the term “trustees” appearing in paragraph (a) of section 5A(1) does not include a trustee which is in liquidation, and

(b) further, or in the alternative, the requisite period of six years has not elapsed.

36 The Plaintiffs submit that the term “trustees” appearing in section 5A(1)(a) of the Dormant Funds Act could not have been intended to apply to the circumstance where, as here, the trustee comes under the control of a Court appointed liquidator (whether appointed provisionally or otherwise). In this regard the Plaintiffs submit that where an officer of the Court, here a liquidator, is carrying out his functions, there already exists a well established machinery to deal with trust funds, without the need for the superimposition of another layer of administration (and fees) in the form of the Commissioner of Dormant Funds.

37 As to the meaning of the term “trustees” in paragraph (a) of section 5A(1), it will be observed that term is not defined in the Act. However, it is submitted on behalf of the Plaintiffs that the term should be understood by reference to the mischief sought to be remedied by the Act (applying in that regard one of the fundamental canons of statutory construction). The Plaintiffs submit that the mischief which the legislation intended to be remedied was to “provide machinery which will enable… charitable funds now lying dormant to be put to some effective use”, in the words of the then Attorney-General, the Honourable C. E. Martin, in his Second Reading speech to the Legislative Assembly, on 15 October 1942 (New South Wales Parliamentary Debates, Volume CLXVIII, page 347).

38 In the instant case the Attorney-General, as the Second Defendant, is in agreement with the advice obtained by the Second Plaintiff that the Trust Funds are impressed with a charitable trust. Such clearly emerges from the express terms of the instrument creating the trust (clause 5 of the will of the Deceased).

39 Section 2(1) of the Dormant Funds Act defines the term “charitable purpose” very broadly, as including “any benevolent or philanthropic or patriotic purpose”. That definition is certainly wide enough to encompass a charitable trust, which of its very nature has a charitable purpose.

40 The Plaintiffs submit that on its proper construction the undefined term “trustees” in section 5A(1)(a) should be interpreted to exclude a trustee in liquidation. It is submitted by the Plaintiffs that it could not have been the intention of the Legislature that the Dormant Funds Act should cut across the proper and well-settled laws of corporate liquidation; but, on the contrary, that that statute expresses the intention of the Legislature to put in place administrative machinery where otherwise none exists. A trustee in liquidation, however (so runs the submission), has no need for such additional administrative machinery.

41 Nevertheless, it will be recognised that there is nothing in the Dormant Funds Act which would suggest that the term “trustees” appearing in paragraph (a) of section 5A(1) should have any meaning different from its ordinary meaning in the well recognised area of the jurisprudence of Equity, or should be limited or qualified in the manner submitted by the Plaintiffs. If a trustee is a company which then goes into liquidation, that fact does not thereby deprive the company of its role as trustee. It means, however, that there is a change in the persons who control and administer the company (previously the directors, but now the liquidator), and thus, as a practical consequence, a change in the persons who perform and carry out the functions of trustee. Were the foregoing submission of the Plaintiffs in this regard to be correct, then there would be no necessity for the provisions of section 8(e) of the Charitable Trusts Act.

42 I do not accept this submission of the Plaintiffs that, in effect, a trustee in liquidation thereby ceases to be a trustee.

43 It is submitted on behalf of the Plaintiffs further, or in the alternative, that if the Dormant Funds Act can have application to funds under the control of a Court appointed liquidator, then the definition of a dormant fund, contemplating a period of at least six years of dormancy, has not arisen in the circumstances of the instant case.

44 In this regard the Plaintiffs submit that the six year period referred to in section 5A(1) is in fact suspended throughout any period during which the trustee cannot lawfully administer the trust. Here the First Plaintiff was in provisional liquidation from 2 May 2000 (when an order appointing a provisional liquidator was made by the Supreme Court of Queensland) until 19 June 2001, and has been in liquidation since that latter date.

45 The Plaintiffs point to section 67 of the Aboriginal Councils and Associations Act 1976 (Commonwealth) which provides that the “provisions of the Corporations Law that relate to the winding up of companies” apply to the winding up of Aboriginal Corporations. Pursuant to section 471A(2) of the Corporations Act, the effect of the appointment of the provisional liquidator to the First Plaintiff was to suspend the powers of the members of the executive committee of that Corporation. The provisional liquidator, however, had no power to administer or to take any step in or to carry out the charitable trust. I would, however, observe in this regard that any such limitation on the powers of the provisional liquidator was in consequence of the orders made on 2 May 2000.

46 It was the submission of the Plaintiffs that on and from the appointment of the provisional liquidator there was no person who could lawfully administer the trust, since the powers of the officers of the Corporation were suspended (pursuant to section 471A(2) of the Corporations Act), and since the powers of the provisional liquidator were expressly limited to “taking possession of all right, title and interest to funds held in the bank accounts” of the Corporation.

47 It was the submission of the Plaintiffs that upon its proper construction section 5A of the Dormant Funds Act is directed to the circumstance where there is a charitable trust which can “lawfully be carried out” but which, for whatever reason, the trustee fails to carry out. The Plaintiffs submit that a sensible construction of that section is that the six year period referred to therein is suspended during any period during which the trustee cannot lawfully carry out the trust.

48 It followed, in the submission of the Plaintiffs, that the period from the appointment of the provisional liquidator on 2 May 2000 until the appointment of the Second Plaintiff as liquidator on 19 June 2001 is not taken into account for the purposes of the calculation of the six year period referred to in section 5A(1)(a) of the Act.

49 Similarly, it was submitted on behalf of the Plaintiffs that for the same reasons the Court should not take into account for the purpose of the foregoing calculation the period following the winding up order made on 19 June 2001. The reason for that consequence is, in the submission of the Plaintiffs, that since the appointment of the liquidator the powers of the members of the executive committee have been suspended (section 471A(1) of the Corporations Act), and the liquidator himself has no power to administer the trust.

50 In this latter regard I would observe that, once again, the powers of the liquidator were expressly limited by the terms of the order of his appointment. I observe that the order of Mr Justice Windeyer made on 19 June 2001 required the liquidator to do one of two things, viz., to apply to the Court for directions in respect of any distribution of funds received from the estate of the Deceased, or to appoint a new trustee to such funds to be held upon the terms of the will of the Deceased. The order itself in its very terms recognised the power of the liquidator to effect such an appointment.

51 It does not seem to me that the terms of that order preclude, either initially, or throughout the period of the liquidation, the Second Plaintiff from administering the trust.

52 It is, in summary, contended on behalf of the Plaintiffs that at no point did the Trust Funds become a dormant fund because, (a) the earliest date on which it can be said that the “inactivity” commenced is the day after the last executive committee meeting of the First Plaintiff (12 October 1996), with the consequence that the fund would have become dormant on 12 October 2002 if nothing further had occurred. But, so runs the argument of the Plaintiffs, the trustee was put into provisional liquidation on 2 May 2000, and the period of that provisional liquidation (2 May 2000 to 19 June 2001) should not be taken into account in calculating the six years period, because during that time it was unlawful and contrary to the order of the Court for the trust to be carried into effect; and, further, the period after the commencement of the liquidation on 19 June 2001 also should not to be taken into account, because the liquidator, like the provisional liquidator, has no power to administer the trust.

53 The Plaintiffs also present the further argument, in the alternative, that the liquidator caused the trustee to take all lawful steps to administer the trust, those steps being limited by the order of Mr Justice Windeyer to seeking out and applying for the appointment of a new trustee.

54 The Second Defendant points to the fact that the First Plaintiff had received the totality of the Trust Funds by February 1995. Thereafter (as set forth in the amended statement of facts) the First Plaintiff did not take any steps to use the Trust Funds for the purpose for which they were donated, namely to advance the education of Aboriginal women. In fact, the trust funds were not used for any purpose whatsoever.

55 It is the submission of the Second Defendant that, in consequence, for at least the last six years (presumably, the period of at least six years immediately preceding the institution of the proceedings on 16 July 2003 – that is, for at least the period from 16 July 1997 to 16 July 2003) the Trust Funds have not been used genuinely for the purposes for which they were donated. The Second Defendant submits that it is highly likely, therefore, that the Commissioner of Dormant Funds would determine that the Trust Funds are a “dormant fund”.

56 The foregoing submissions of the Plaintiff seem to me to put a strained and unwarranted construction on what are the clear and unambiguous words of the statute (“for at least the immediately preceding 6 years, the trustees have not used the fund genuinely for the purposes for which it was donated, collected on otherwise acquired”). Whatever might be the reasons, explanations or justifications for their failure to do so, it is abundantly obvious that the First Plaintiff, and from 19 June 2001 also the Second Plaintiff, have not “used the fund genuinely for the purposes for which it was donated, collected or otherwise acquired”, and that the period during which they have failed to do so commenced no later than 16 June 1995 and that that period continues to the present time.

57 If there were any ambiguity or uncertainty in the meaning of paragraph (a) of section 5A(1) of the Dormant Funds Act (and I do not consider that there is any such ambiguity or uncertainty) a consideration of the Second Reading speech of the then Attorney-General (to which I have earlier referred) fortifies me in the construction which I have adopted.

58 In those circumstances I am of opinion that the discretion of the Commissioner to determine the Trust Funds to be a dormant fund is thereby enlivened.

59 It seems to me that, having expressed the foregoing opinion, the appropriate course is that I should give to the Plaintiffs the advice that they would be justified in approaching the Commissioner with the request that he determine the Trust Funds to be a dormant fund.

60 It follows from the foregoing that (at least, unless and until the Commissioner fails to determine the Trust Funds to be a dormant fund or determines that they are not a dormant fund) it will be unnecessary for the Plaintiffs to pursue the other prayers for relief in the amended summons. For the reasons to which I have already referred (consequent upon the provisions of Part 4 of the Charitable Trusts Act), the relief sought under the Charitable Trusts Act cannot presently even be claimed. But, in any event, if the Commissioner determines that the Trust Funds are a dormant fund, all other claims for relief (apart from those relating to costs and to the remuneration of the Second Plaintiff) will be rendered unnecessary.

61 I presently grant the following relief:

(1). The Court expresses its opinion that upon the facts herein the Commissioner of Dormant Funds may determine the Trust Funds to be a dormant fund.

(2). The Court gives to the First Plaintiff its advice and to the Second Plaintiff the direction that they would be justified in approaching the Commissioner of Dormant Funds with a request that he determine the Trust Funds to be a dormant fund.

(3). I order that the costs of the Plaintiffs and of the Second Defendant be paid out of the Trust Funds.

(4). I order that the balance of the Amended Summons be stood over generally, with liberty to restore on 7 days notice.

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Last Modified: 03/26/2004