Perpetual Trustee Company Limited v The Attorney General of NSW

[2007] NSWSC 1339

CITATION:	Perpetual Trustee Company Limited v The Attorney General of NSW [2007] NSWSC 1339
HEARING DATE(S):	22 November 2007
JUDGMENT DATE :	22 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
EX TEMPORE JUDGMENT DATE:	22 November 2007
DECISION:	Cy-pres scheme to be settled
CATCHWORDS:	TRUSTS - Charitable Trusts - Named corporate trust institution ceasing to exist
CASES CITED:	Re Wright [1954] Ch 347
PARTIES:	Perpetual Trustee Company Limited (Plaintiff) Attorney General of New South Wales (First Defendant) Disability Services Australia Limited (Second Defendant)
FILE NUMBER(S):	SC 2350 of 2007
COUNSEL:	Mr M Meek (Plaintiff) Dr C Mantziaris (First Defendant) Mr P J Livingstone (Second Defendant)
SOLICITORS:	Bartier Perry (Plaintiff) I V Knight Crown Solicitor (First Defendant) Bull and Company (Second Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY, 22 NOVEMBER 2007

2530/07 PERPETUAL TRUSTEE COMPANY LIMITED v ATTORNEY GENERAL OF NEW SOUTH WALES & ANOR

JUDGMENT

1 HIS HONOUR: These are charitable trust proceedings under which the plaintiff, the Perpetual Trustee Company Limited as executor of the will of Leonard Watson Chant who died on 22 December 1979, seeks to have determined whether or not a gift to a body described as Aid Retarded Persons N.S.W. has failed and, if it has failed, the result of that failure.

2 Mr Chant left a will dated 23 December 1975. Under that will various life interests were provided for, all of which have now come to an end and the will provided that when that happened the estate was to be divided into five parts, one of which was to go to Aid Retarded Persons N.S.W.. The evidence shows that a body by that name was incorporated on 29 October 1965 as a company limited by guarantee. That company, being a company limited by guarantee, would have been entitled to apply to have the word "limited" omitted from its name and presumably that is what happened. That incorporated society was placed into liquidation and it appears that it was dissolved on 30 March 1995.

3 It follows that the gift to it cannot take effect. It is perfectly clear that the original gift was a valid charitable gift and that the interest in remainder vested at the date of death of the deceased and that therefore, as the charitable object cannot be fulfilled unless there is some body which can claim to be the actual successor to the charitable organisation placed into liquidation, a scheme must be settled so as to carry out as nearly as is possible the original charitable objects of the original gift. Even when gifts are postponed the date of death is the relevant date: Re Wright [1954] Ch 347.

4 It was at one stage thought that it might have been the position that Disability Services Australia Limited was the actual successor to the original charitable organisation. That suggestion was based on the fact that it seems the most substantial assets of the charitable company, namely properties at Redfern and Condell Park, were transferred to a company, Amaroo Industries Limited, which was also a company limited by guarantee with much the same charitable objects as Aid Retarded Persons N.S.W.. That company, Amaroo Industries Limited, has changed its name to Disability Services Australia Limited and although it has adopted a new constitution, it remains a charitable foundation and is a company limited by guarantee.

5 It is now accepted by counsel for the second defendant that it is not possible to argue that Disability Services Australia Limited is the actual successor of the original charitable trust company and I think the evidence makes it quite clear why that concession has been made and had to be made.

6 The result of this, in accordance with what I consider to be the appropriate procedure in these matters, is to declare that the original trust has ceased to exist because the company has been dissolved and therefore to direct that a scheme be settled.

7 It is obvious enough that the second defendant would wish to propound a scheme presumably suggesting that the assets be transferred to it to be held by it upon trust in accordance with its objects.

8 It may however be that there are other bodies which would wish to propound a scheme, and it seems to me appropriate in the light of some of the distributions which were made by the liquidator that it is at least possible some other organisation may wish to propound a scheme which in effect would require transfer of the funds to that organisation. Whether or not it would be appropriate for the fund which, as I understand it, is in the order of $1 million to be divided among bodies carrying on the same type of service as the original donee of the gift cannot be decided at this stage.

9 I will stand the matter over until later today for draft orders and directions as to the further conduct of the action to be brought in.

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