Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) (No 2) - [2018] NSWSC 1646

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) (No 2) [2018] NSWSC 1646
Hearing dates: 15 October 2018 (last submissions 26 October 2018)
Decision date: 01 November 2018
Jurisdiction: Equity
Before: Leeming JA
Decision:
1. From the date of these orders, the trusts established by cll 8(B)(I), 8(B)(II) and 8(C)(I) of the will of the Honourable George Nesbitt shall be administered on the following basis:

a. All scholarships are to be awarded without regard to any denominational or geographic limitation.

b. All scholarships are to be awarded without regard to whether a student was enrolled from a public school, a private school or was home-schooled.

c. If a successful candidate indicates that he or she does not wish to receive the scholarship or cannot be located after reasonable attempts by the Principal of the School, the scholarship is to be awarded to the next runner-up student determined by the Principal of the School.

d. If the successful candidate is over the age of 18 years, the award is to be paid to the candidate directly. If the successful candidate is under the age of 18 years, the award is to be paid to the candidate’s parents or guardians.

e. The School is at liberty to publish the names of any successful candidate who accepts the scholarship.

f. There is no requirement for student applications to be submitted.

g. The Secretary of the Department of Education shall have the oversight over the awarding and administration of all scholarships as he or she may decide from time to time and the school will be subject to the direction of the Secretary of the Department of Education.

2. For the academic years from and including 2018:

a. The George Nesbitt High School Scholarship is to be open annually to all male students in Year 12 at the Lismore High campus of The Rivers Secondary College, and the Adina Nesbitt High School Scholarship is to be open annually to all female students in Year 12 at the Lismore High campus of The Rivers Secondary College.

b. Each of the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship is to be awarded to the male and female student in Year 12 at the school who is determined by the Principal to be the male or female Year 11 dux of the previous school year (if more than one candidate is appointed as male or female dux, then the scholarship is to be divided equally between those students).

c. The George and Adina Nesbitt High School Scholarships are to be open annually to all students at The Rivers Secondary College, Lismore High Campus from Year 8 to Year 11 inclusive, and the Principal of the School shall award four scholarships annually to the top four students in each of Years 7 to 10 in the previous year, being the dux and the next three ranked students as determined by the Principal.

3. For the academic years from 2010 to 2017, the awards of each of the George Nesbitt High School Scholarship, the Adina Nesbitt High School Scholarship and the George and Adina Nesbitt High School Scholarships will be made on the same basis as in 2 above, subject to the following modifications.

a. For years prior to the establishment of The Rivers Secondary College, eligibility is confined to students of Lismore High School.

b. For the academic year 2010, in addition to awards to each Year 11 dux, there will also be an award to each Year 12 dux.

c. In the event that a successful candidate cannot be located after reasonable attempts by the Principal, the scholarship is to be awarded to the runner-up determined by the Principal.

d. The amount of the scholarship will be determined as the sum of an income component and an interest component as follows:

i. In the case of the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship:

the income component for each of the 18 recipients is 1/18 of the income from the main account credited in the Academic Proficiency Awards Account maintained by the trustee over the period from 2010 to 2017 (being an amount in the order of $248,000), and

the interest component is obtained by the formula (Accumulated Interest) x [2018 – Academic Year] / 72, where “Accumulated Interest” is the sum of interest on the accumulated balance of the Academic Awards Proficiency Awards Account for the period 2010 – 2017 (being an amount in the order of $22,000) and “Academic Year” is the year in respect of which the scholarship is awarded.

ii. In the case of the George and Adina Nesbitt High School Scholarships,

the income component for each of the 128 recipients is 1/128 of the income from the main account credited to the General Awards Account maintained by the trustee over the period from 2010 to 2017 (being an amount in the order of $155,000).

the interest component is obtained by the formula (Accumulated Interest) x [2018 – Academic Year] / 576, where “Accumulated Interest” is the sum of interest on the accumulated balance of the General Awards Account for the period 2010 – 2017 (being an amount in the order of $14,000) and “Academic Year” is the year in respect of which the scholarship is awarded.

Example: the Adina Nesbitt High School Scholarship for the academic year 2015 is to be awarded to the female student who is determined by the Principal to be the female Year 11 dux for 2015. The amount of that scholarship is the sum of:

1/18 of the income accumulated in the Academic Proficiency Awards Account over the period 2010 – 2017, namely, (1/18 x (approximately) $248,000 = $13,780); and

3/88 of the accumulated interest on the balance of the Academic Proficiency Awards Account over the period 2010 – 2017, namely, (3/88 x (approximately) $22,000 = $750).

If that student was also one of the top four students in Year 10 in 2014, but was not one of the top four students in any of her previous years at Lismore High School, then she is also entitled to one of the George and Adina Nesbitt High School Scholarships for that academic year. The amount of that scholarship is the sum of:

1/128 of the income accumulated in the General Awards Account for the period 2010 – 2017, namely, (1/128 x (approximately) $155,000 = $1200); and
4/576 of the accumulated interest on the balance of the General Awards Account over the period 2010 – 2017, namely, (4/576 x (approximately) $14,000) = $100.
Catchwords: TRUSTS – charitable trust – trust for the advancement of education – trust established in testator’s will imposed condition that students’ parents be Protestant – cy-près scheme – formulation of scheme – scheme removing religious condition approved and ordered – school named in testator’s will now one of three campuses of merged school – administration of scheme to apply to previous eight years during which income was accumulated
Legislation Cited: Charitable Trusts Act 1993 (NSW), ss 6, 11
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456
Phillips v Roberts [1975] 2 NSWLR 207
Category: Consequential orders (other than Costs)
Parties: Perpetual Trustee Company Ltd (Plaintiff)
Attorney General for the State of New South Wales (First Defendant)
The State of New South Wales through its Department of Education (Second Defendant)
CASPA Services Ltd (Third Defendant)
Representation:
Counsel:
P Blackburn-Hart SC (Plaintiff)
H El-Hage (First and Second Defendants)
Solicitors:
Bedson Legal (Plaintiff)
Crown Solicitor’s Office (First and Second Defendants)

File Number(s): 2017/286679
Publication restriction: Nil

Judgment

LEEMING JA: On 27 September 2018 I delivered judgment on the trustee’s application for a series of orders arising out of the charitable trusts established by the will of the Honourable George Nesbitt: Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456. The relevant paragraphs of the will are reproduced at [3] of that judgment. I gave advice in relation to trusts established in favour of the Lismore Anglican Church, the North Coast National Agricultural and Industrial Society Lismore, the Girls’ Hostel at Lismore and the Lismore Ladies Benevolent Society. Most relevantly for present purposes, acting upon evidence that the trust established for the North Coast Children’s Home could no longer be administered because of a condition in Mr Nesbitt’s will that the funds be used “for the maintenance of Protestant children”, I made orders that the trust be administered cy-près by deleting the word “Protestant”.

The scholarship trusts established by Mr Nesbitt’s will

One matter was left outstanding. It concerned the scholarship trusts established by Mr Nesbitt’s will. Clauses 8(B)(I) and (II) of the will established trusts, known respectively as the “George Nesbitt High School Scholarship” and the “Adina Nesbitt High School Scholarship”, for the most proficient boy and girl at Lismore Public High School, so long as he or she was “of Protestant parents” and had entered the school from a public school in the Richmond River District. Clause 8(C)(I) established a trust, known as the “George and Adina Nesbitt Scholarships” for other students at the High School, and subject to the same conditions as to religion and entry.
Each of these trusts suffered from the same problem as that for the North Coast Children’s Home. The various scholarships had been paid until 2009, but not subsequently. The school had refused to administer the awards on the terms of the trust after 2004 (in which year the female dux was required to return to the award after her mother was found not to be a Protestant): see [19] of my previous judgment. The trustee administered the scholarships thereafter until 2010. The last scholarships were awarded for the 2009 academic year.
In addition to the religious condition, Mr Nesbitt’s will imposed two other problematic terms. After the trustee ceased to pay the scholarships, Lismore High School “merged” with two other schools and is now one campus of “The Rivers Secondary College”, raising a question as to how the terms of the trust applied. There was also some uncertainty as to the geographical limits of the “Richmond River District”, as well as the absence of any good reason why that should be a geographical precondition to eligibility. My judgment of 27 September 2018 indicated that I would make orders in accordance with schemes, as ultimately proposed by the Attorney General, and contingently supported by the trustee, the substance of which would remove the religious and geographical limitations, and accommodate the fact that there was now a single school with three campuses.
However, I did not then and there make orders. That was because a further problem arose out of the trustee’s delay. The trustee had ceased administering the scholarships after 2009, saying that it was unable to do so while it was applying for a scheme. The Attorney-General’s consent (required by reason of s 6 of the Charitable Trusts Act 1993 (NSW)) was obtained on 14 March 2011. Yet, in circumstances described in paragraph 22 of my earlier judgment, the trustee did not file a summons until 21 September 2017. Thus, no scholarships have been awarded for many years, while the trustee has been accumulating the income (net of the trustee’s fees and charges) from the assets held on trust.
In August of this year, the trustee resisted a scheme whereby students who would have been entitled to scholarships from 2010 – 2017 might belatedly obtain the scholarship, both orally at the hearing, and – albeit less firmly – in submissions after the hearing which I granted leave for it to make. I rejected the trustee’s submission, which was also ultimately opposed by the Attorney General and the State. It seemed to me to be quite wrong that for an eight year period the underlying charitable intention in Mr Nesbitt’s will should be frustrated, substantially because of the trustee’s own delay.
However, the trustee had not proposed a form of orders which addressed the distribution of funds accumulated since 2010. I also became concerned to supervise how the schemes would be applied for those years. Hence, I directed the trustee within 14 days from 27 September 2018 to supply orders or materials which disclosed “how the income which has been accumulating since 2010 will be distributed as between the recipients from 2010 to 2017 and recipients in future years”. That did not occur within the 14 days specified, and the trustee sought another extension of time. I did not accede to that application. Instead, I conducted a directions hearing on 15 October 2018, immediately in advance of which the trustee, constructively, proposed some orders. It was as well that that occurred, because it brought out into the open a number of issues.

Remaining issues – trusts confined to the Lismore High campus?

First, I had recorded at paragraph 24 of my earlier judgment that students from any of the three campuses comprising The Rivers Secondary College would be eligible. That reflected an unambiguous answer to my question on that point during the hearing:

“BLACKBURN-HART: ... [W]hat is now being put forward to your Honour is that the combined school, the Rivers Secondary College, which is really the successor I suppose to the Lismore Public High School, the students of the combined school will be eligible for the scholarship.”

On 15 October 2018, Mr Blackburn-Hart confirmed that in fact he had spoken incorrectly, and that it was proposed by the trustee, and agreed to by the Attorney General and the State, that only students from the Lismore High campus would be eligible. To be fair, I now see that that did appear from the written documents proposed by the trustee and supported by the Attorney General and the State at the earlier hearing.
I am of the view that it is appropriate for the scholarship trusts to be administered on the basis that only students of the Lismore High Campus are eligible. So to do accords with the intentions expressed in Mr Nesbitt’s will, because the natural successor to the particular high school, “Lismore Public High School”, named in each of cll 8(B)(I), 8(B)(II) and 8(C)(I), is the Lismore High campus of The Rivers Secondary College. The evidence establishes that the Richmond River Campus and the Kadina High Campus are the successors of Richmond River High School (which opened in 1958) and Kadina High School (which opened in 1977). At the time of Mr Nesbitt’s will, the schools which have now become the other two campuses did not exist. The applicable principle here is, in the words of Hutley JA in Phillips v Roberts [1975] 2 NSWLR 207 at 212, “to give full effect to the intentions of the [testator or] testatrix declared in the will up to the limits practicable”. It follows that it is appropriate for eligibility to be restricted to the Lismore High campus.
The remaining issues apply only to the scholarships to be awarded for the academic years 2010-2017. They could also have been resolved through the provision of advice as to the administration of the accumulated income and interest, rather than through the more prescriptive mechanism of orders for administration cy-près. However, this course has been proposed by the trustee and supported by the Attorney, and given aspects of the history of these trusts, there is perhaps some advantage in providing the certainty and transparency of the orders which will be made.

The 2015 income spike

Secondly, the scheme proposed by the trustee at the hearing on 15 October 2018 distributed income in accordance with the will. I was told that in the “Academic Proficiency Awards Account” for the financial years 2010-2017, income of some $240,000 had been generated from the main account, which together with interest of some $22,000 was available for distribution amongst the cll 8(B)(I) and 8(B)(II) scholarships. The income fluctuated each financial year. In most years, the income including interest ranged between $12,025.20 (in 2014) and $31,284.18 (in 2010). However, in 2015 the income including interest was $129,722.69 – which is to say, some ten times greater than the previous year.
When I inquired as to the reason for that spike, I was told that rental income from real property held by the trustee had accrued, but had not been transferred into the account, until 2015. Further, because, so it seemed, the trustee was, at least for the purposes of the scholarship trusts, accounting for income on a cash basis, all of that income was attributed to the 2015 year. There may be other explanations for what occurred; that is not something which has been explored nor is it presently relevant. Focussing upon what will happen in the future, the trustee’s proposal as advanced on 15 October 2018 would have meant that the most proficient boy and girl in 2014 would each receive around $6,000, while the most proficient boy and girl in 2015 would each receive some $64,000.
It is to be expected that the vagaries of income earned on assets held on trust will result in fluctuating returns from year to year. That is a problem with almost all trusts of income, unless the assets be such as provide a fixed return (like the consols created in the 18th century and familiar to students of economic history and English literature). However, the extraordinary ten-fold discrepancy between 2014 and 2015 is plainly caused by the way in which the trustee administered the assets held on trust and accounted for the income from those assets.
One aspect of the maxim that equity is equality is that capricious inequality should be avoided. That underlay the following exchange:

“HIS HONOUR: ... Those students who have missed out for the last seven years will no doubt be happy but they will be scrutinising in the usual way why have I got [what I have got] and how has it been calculated and if there is a massive discrepancy that is going to create a majority of the belated recipients asking the question why and some will think, not without cause, why am I getting less than a tenth of what someone else is getting because they happen to be a year older than me. The answer to that is there was an unexpected windfall in 2015, although it may well be the unexpected windfall came about because the trustee didn’t attribute income which was [accrued] in previous years but not paid, and if that be the underlying facts then there seems to be a lot to be said for sorting this out. That’s just a preliminary view.
BLACKBURN-HART: I accept that. I can’t answer that with any degree of particularity at all because I don’t know, your Honour, and I’ll need instructions.”

After that directions hearing, the trustee reviewed the position it was advancing, and now proposes orders which will smooth the 2015 income over the entirety of the 8 year period. The Attorney agrees to that course.

The 2010 changeover year

Thirdly, it became clear that the trustee was proposing to treat the students in 2010 and 2011 differently from the rest. Formerly, and until the 2009 academic year, the scholarships had been awarded to the most proficient students in Year 12. The trustee and the Attorney proposed to base awards on Year 11 performance. That seems sensible; it will be straightforward to administer, the will does not specify any particular year for the awards, and their presentation the following year to the girl and boy in Year 12 is apt to have a constructive impact on the rest of the school, entirely in keeping with the spirit underlying Mr Nesbitt’s gift. However, that meant that the most proficient year 12 students in 2010 had (a) missed out on a scholarship under the regime before the cy-près scheme was in place, but (b) would also miss out under the cy-près scheme because awards would be based on year 11 results. Rather than having that cohort of students miss out entirely, the trustee, supported by the Attorney, proposed that the 2010 income and interest would be split between four recipients, rather than two. As it happened, 2010 was the fund’s best performing year, save for 2015, so that the result was less extreme than in might have been. Nonetheless, it would produce the result that the recipients of the cll 8(B)(I) and (II) scholarships for the 2010 year would each receive slightly more than $7,000, while the recipients for, say, 2012 would each receive slightly more than $12,000. That led to the following exchange:

“BERKI: ... So we thought that it was necessary to do the double award that year to have that smooth transition period over into what will be the scheme going forward.
HIS HONOUR: But there is another slight capricious element of it although it’s not nearly as bad as the 2015 one, that is because of the change from making the award in effect based on year 11 results as opposed to year 12 results everyone over the whole period, with the exception of those in 2010 and 2009 I think, will get a certain amount and those in 2009 and 2010 will get roughly half that amount. You say that’s better than one year missing out entirely.
BERKI: That was the thinking; it seemed to be an unavoidable problem to some extent.”

The proposed orders supplied to my chambers on 26 October 2018 by the trustee, and supported by the Attorney, smooth the income over all eight years. That is appropriate. It is necessary to smooth the income recorded for 2015 over all years in any event for the reasons already given. Since to that extent it is appropriate to depart from the strict trust of income established by the will, there seems to me to be no sound reason for the adjustment for 2010 not to be borne over the whole of the period. Again, this may also be regarded as an aspect of equity favouring equality in the administration of a charitable trust.
It may be noted that the orders relating to the smoothing of income credited to the Academic Proficiency Awards Account and the General Awards Account involve, in a sense, a departure from the distributions required by cll 8(B)(I), 8(B)(II) and 8(C)(I) of the will. However, the circumstance of distributing eight years’ income belatedly and simultaneously, with knowledge of the changes in investment performance and (perhaps) peculiarities in the trustee’s accounting, is one which was not addressed by the will at all. The trustee was and is required to make distributions under the trusts with reasonable promptitude, and, once it became clear that it was impracticable to do so on the original terms of the will, the trustee became subject to an obligation to apply for a cy-près scheme: s 11 of the Charitable Trusts Act 1993 obliged the trustee “to secure [the trust property’s] effective use for charitable purposes by taking steps to enable it to be so applied”. The orders addressing the consequences of eight years delay in administration of the trust are best regarded as an aspect of its orderly administration. Nothing in this judgment or the earlier judgment should be read as endorsing some free-ranging unconstrained discretion to alter a charitable trust.

Academic years and financial years

The trustee seems to account for income and interest on financial years, however, the scholarships will necessarily be awarded on the basis of calendar years. It is not quite clear to me whether this has been borne in mind in the orders provided to my chambers. The orders which I shall make will be based on the document provided by senior counsel appearing for the trustee on 15 October 2018, and take the entirety of the income and interest for the financial years ended 30 June 2010 to 30 June 2017, which is to say, 8 years, and allocate that to the 8 academic years 2010 to 2017. Based on the material available to me, that appears to create a result which will not materially disadvantage any scholarship recipient. If there is some difficulty, an application can be made to vary the orders under UCPR r 36.16 within the time there specified.

Interest

I turn to interest. I regard this aspect of the scheme as finely balanced. On the one hand, I am conscious that interest is relatively small – interest comprises approximately 10% of the amount which is now to be distributed. There is something to be said for simply taking the entirety of income including interest for the years 2010 to 2017 and dividing it equally amongst the men and women who are entitled to distributions under cll 8(B)(I) and (II) of the will. That is transparent and straightforward. I am also conscious that it is likely that some of those recipients – the men and women at least one of whose parents is not a Protestant – were not entitled to any distribution until such time as the trusts are altered by the cy-près scheme. Although in a sense a dux of the school in, say, 2013, has been out of pocket for 5 years, if his or her father or mother is not Protestant, then he or she was entitled to nothing until orders are made today. Those factors favour an equal allocation.
However, on balance I have concluded that the approach proposed by the trustee is appropriate. That approach divides the trust income equally between the 18 recipients for the years 2010-2017, but allocates interest on that income ratably in accordance with the time which has elapsed. There is good reason to take that course. The fund includes interest which has been generated on assets which should have been distributed to students in previous years. If no allowance is made for the interest, it follows that the recipients for 2017 would be receiving a benefit obtained wholly by reason of the delayed distribution of scholarships in previous years.
Although there are many more distributions under cl 8(C)(I), and the interest component for each is small, I think that consistency requires the same approach to be taken.

Orders

The trustee proposed orders, to which the Attorney consented, which occupy no fewer than 10 pages. They are highly repetitive, because the rules governing each of the trusts to be administered cy-près are identical. There is no need for any such prolixity, and good reason to avoid it, in order to enhance the transparent administration of the trust and to reduce the risk of errors which needless length can promote.
So far as I can see, the same effect as was sought to be achieved by the form of orders proposed by the trustee is achieved by the orders which follow, in light of the following considerations.

I bear in mind that the last award of cll 8(B)(I) and (II) scholarships was in 2010 for the male and female Year 12 dux of 2009.

The trustee, the State and the Attorney propose that those prizes should thereafter be awarded based on performance in Year 11, and that will occur straightforwardly for the cohort of students who are presently (in 2018) in Year 11. In order to achieve the evident intent in the will that in each year, the most proficient boy and girl are eligible to receive the scholarship, it is necessary for the accumulated income and interest to be distributed to the most proficient boy and girl in Year 12 in 2010, and also in Year 11 in each of the years from 2010 to 2017. There will therefore be 18 awards pursuant to cll 8(B)(I) and (II), to be made out of the accumulated income and interest in the Academic Proficiency Awards Account.

On the other hand, in relation to the cl 8(C)(I) awards, of which there are to be 16 in each calendar year, these are to be awarded to the four most proficient students in each of Years 7, 8, 9 and 10 for each academic year 2010-2017. It follows that there are 128 awards in all to be made out of the accumulated income and interest from the General Awards Account. Of course, the same student who is one of the top four students in Year 7 in 2012 may also be one of the top four students in Year 8 in 2013, and perhaps later years too, and so may be entitled to receive more than one award under this clause.

The accumulated interest is to be divided amongst the 18 (in the case of cll 8(B)(I) and (II)) and 128 (in the case of cl 8(C)(1)) recipients, based on how many years prior to 2018 the award should have been received.

Each male and each female recipient of the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship should have received their scholarship between 1 and 8 years ago, two in each year, save that four should have received their scholarship in 2010, 8 years ago. 1 + 1 + 2 + 2 + 3 + 3 + 4 + 4 + 5 + 5 + 6 + 6 + 7 + 7 + 8 + 8 + 8 + 8 = 88. In addition to 1/18 of the income accumulated in the account for these scholarships, each student should receive a proportion of the interest accumulating in that account, based on the number of years they have been waiting divided by 88.

The George and Adina Nesbitt High School Scholarships are similar, save that there are 128 recipients, 16 in each of 8 years, and 16 x (1 + 2 + 3 + 4 + 5 + 6 + 7 + 8) = 576.

No further order as to costs is required.

I shall make the following orders.

1. From the date of these orders, the trusts established by cll 8(B)(I), 8(B)(II) and 8(C)(I) of the will of the Honourable George Nesbitt shall be administered on the following basis:
a. All scholarships are to be awarded without regard to any denominational or geographic limitation.
b. All scholarships are to be awarded without regard to whether a student was enrolled from a public school, a private school or was home-schooled.
c. If a successful candidate indicates that he or she does not wish to receive the scholarship or cannot be located after reasonable attempts by the Principal of the School, the scholarship is to be awarded to the next runner-up student determined by the Principal of the School.
d. If the successful candidate is over the age of 18 years, the award is to be paid to the candidate directly. If the successful candidate is under the age of 18 years, the award is to be paid to the candidate’s parents or guardians.
e. The School is at liberty to publish the names of any successful candidate who accepts the scholarship.
f. There is no requirement for student applications to be submitted.
g. The Secretary of the Department of Education shall have the oversight over the awarding and administration of all scholarships as he or she may decide from time to time and the school will be subject to the direction of the Secretary of the Department of Education.
2. For the academic years from and including 2018:
a. The George Nesbitt High School Scholarship is to be open annually to all male students in Year 12 at the Lismore High campus of The Rivers Secondary College, and the Adina Nesbitt High School Scholarship is to be open annually to all female students in Year 12 at the Lismore High campus of The Rivers Secondary College.
b. Each of the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship is to be awarded to the male and female student in Year 12 at the school who is determined by the Principal to be the male or female Year 11 dux of the previous school year (if more than one candidate is appointed as male or female dux, then the scholarship is to be divided equally between those students).
c. The George and Adina Nesbitt High School Scholarships are to be open annually to all students at The Rivers Secondary College, Lismore High Campus from Year 8 to Year 11 inclusive, and the Principal of the School shall award four scholarships annually to the top four students in each of Years 7 to 10 in the previous year, being the dux and the next three ranked students as determined by the Principal.
3. For the academic years from 2010 to 2017, the awards of each of the George Nesbitt High School Scholarship, the Adina Nesbitt High School Scholarship and the George and Adina Nesbitt High School Scholarships will be made on the same basis as in 2 above, subject to the following modifications.
a. For years prior to the establishment of The Rivers Secondary College, eligibility is confined to students of Lismore High School.
b. For the academic year 2010, in addition to awards to each Year 11 dux, there will also be an award to each Year 12 dux.
c. In the event that a successful candidate cannot be located after reasonable attempts by the Principal, the scholarship is to be awarded to the runner-up determined by the Principal.
d. The amount of the scholarship will be determined as the sum of an income component and an interest component as follows:
i. In the case of the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship:
the income component for each of the 18 recipients is 1/18 of the income from the main account credited in the Academic Proficiency Awards Account maintained by the trustee over the period from 2010 to 2017 (being an amount in the order of $248,000), and
the interest component is obtained by the formula (Accumulated Interest) x [2018 – Academic Year] / 72, where “Accumulated Interest” is the sum of interest on the accumulated balance of the Academic Awards Proficiency Awards Account for the period 2010 – 2017 (being an amount in the order of $22,000) and “Academic Year” is the year in respect of which the scholarship is awarded.
ii. In the case of the George and Adina Nesbitt High School Scholarships,
the income component for each of the 128 recipients is 1/128 of the income from the main account credited to the General Awards Account maintained by the trustee over the period from 2010 to 2017 (being an amount in the order of $155,000).
the interest component is obtained by the formula (Accumulated Interest) x [2018 – Academic Year] / 576, where “Accumulated Interest” is the sum of interest on the accumulated balance of the General Awards Account for the period 2010 – 2017 (being an amount in the order of $14,000) and “Academic Year” is the year in respect of which the scholarship is awarded.

Example: the Adina Nesbitt High School Scholarship for the academic year 2015 is to be awarded to the female student who is determined by the Principal to be the female Year 11 dux for 2015. The amount of that scholarship is the sum of:
1/18 of the income accumulated in the Academic Proficiency Awards Account over the period 2010 – 2017, namely, (1/18 x (approximately) $248,000 = $13,780); and
3/88 of the accumulated interest on the balance of the Academic Proficiency Awards Account over the period 2010 – 2017, namely, (3/88 x (approximately) $22,000 = $750).

If that student was also one of the top four students in Year 10 in 2014, but was not one of the top four students in any of her previous years at Lismore High School, then she is also entitled to one of the George and Adina Nesbitt High School Scholarships for that academic year. The amount of that scholarship is the sum of:
1/128 of the income accumulated in the General Awards Account for the period 2010 – 2017, namely, (1/128 x (approximately) $155,000 = $1200); and
4/576 of the accumulated interest on the balance of the General Awards Account over the period 2010 – 2017, namely, (4/576 x (approximately) $14,000) = $100.

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Decision last updated: 01 November 2018

Medium Neutral Citation:	Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) (No 2) [2018] NSWSC 1646
Hearing dates:	15 October 2018 (last submissions 26 October 2018)
Decision date:	01 November 2018
Jurisdiction:	Equity
Before:	Leeming JA
Decision:	1. From the date of these orders, the trusts established by cll 8(B)(I), 8(B)(II) and 8(C)(I) of the will of the Honourable George Nesbitt shall be administered on the following basis: a. All scholarships are to be awarded without regard to any denominational or geographic limitation. b. All scholarships are to be awarded without regard to whether a student was enrolled from a public school, a private school or was home-schooled. c. If a successful candidate indicates that he or she does not wish to receive the scholarship or cannot be located after reasonable attempts by the Principal of the School, the scholarship is to be awarded to the next runner-up student determined by the Principal of the School. d. If the successful candidate is over the age of 18 years, the award is to be paid to the candidate directly. If the successful candidate is under the age of 18 years, the award is to be paid to the candidate’s parents or guardians. e. The School is at liberty to publish the names of any successful candidate who accepts the scholarship. f. There is no requirement for student applications to be submitted. g. The Secretary of the Department of Education shall have the oversight over the awarding and administration of all scholarships as he or she may decide from time to time and the school will be subject to the direction of the Secretary of the Department of Education. 2. For the academic years from and including 2018: a. The George Nesbitt High School Scholarship is to be open annually to all male students in Year 12 at the Lismore High campus of The Rivers Secondary College, and the Adina Nesbitt High School Scholarship is to be open annually to all female students in Year 12 at the Lismore High campus of The Rivers Secondary College. b. Each of the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship is to be awarded to the male and female student in Year 12 at the school who is determined by the Principal to be the male or female Year 11 dux of the previous school year (if more than one candidate is appointed as male or female dux, then the scholarship is to be divided equally between those students). c. The George and Adina Nesbitt High School Scholarships are to be open annually to all students at The Rivers Secondary College, Lismore High Campus from Year 8 to Year 11 inclusive, and the Principal of the School shall award four scholarships annually to the top four students in each of Years 7 to 10 in the previous year, being the dux and the next three ranked students as determined by the Principal. 3. For the academic years from 2010 to 2017, the awards of each of the George Nesbitt High School Scholarship, the Adina Nesbitt High School Scholarship and the George and Adina Nesbitt High School Scholarships will be made on the same basis as in 2 above, subject to the following modifications. a. For years prior to the establishment of The Rivers Secondary College, eligibility is confined to students of Lismore High School. b. For the academic year 2010, in addition to awards to each Year 11 dux, there will also be an award to each Year 12 dux. c. In the event that a successful candidate cannot be located after reasonable attempts by the Principal, the scholarship is to be awarded to the runner-up determined by the Principal. d. The amount of the scholarship will be determined as the sum of an income component and an interest component as follows: i. In the case of the George Nesbitt High School Scholarship and the Adina Nesbitt High School Scholarship: the income component for each of the 18 recipients is 1/18 of the income from the main account credited in the Academic Proficiency Awards Account maintained by the trustee over the period from 2010 to 2017 (being an amount in the order of $248,000), and the interest component is obtained by the formula (Accumulated Interest) x [2018 – Academic Year] / 72, where “Accumulated Interest” is the sum of interest on the accumulated balance of the Academic Awards Proficiency Awards Account for the period 2010 – 2017 (being an amount in the order of $22,000) and “Academic Year” is the year in respect of which the scholarship is awarded. ii. In the case of the George and Adina Nesbitt High School Scholarships, the income component for each of the 128 recipients is 1/128 of the income from the main account credited to the General Awards Account maintained by the trustee over the period from 2010 to 2017 (being an amount in the order of $155,000). the interest component is obtained by the formula (Accumulated Interest) x [2018 – Academic Year] / 576, where “Accumulated Interest” is the sum of interest on the accumulated balance of the General Awards Account for the period 2010 – 2017 (being an amount in the order of $14,000) and “Academic Year” is the year in respect of which the scholarship is awarded. Example: the Adina Nesbitt High School Scholarship for the academic year 2015 is to be awarded to the female student who is determined by the Principal to be the female Year 11 dux for 2015. The amount of that scholarship is the sum of: 1/18 of the income accumulated in the Academic Proficiency Awards Account over the period 2010 – 2017, namely, (1/18 x (approximately) $248,000 = $13,780); and 3/88 of the accumulated interest on the balance of the Academic Proficiency Awards Account over the period 2010 – 2017, namely, (3/88 x (approximately) $22,000 = $750). If that student was also one of the top four students in Year 10 in 2014, but was not one of the top four students in any of her previous years at Lismore High School, then she is also entitled to one of the George and Adina Nesbitt High School Scholarships for that academic year. The amount of that scholarship is the sum of: 1/128 of the income accumulated in the General Awards Account for the period 2010 – 2017, namely, (1/128 x (approximately) $155,000 = $1200); and 4/576 of the accumulated interest on the balance of the General Awards Account over the period 2010 – 2017, namely, (4/576 x (approximately) $14,000) = $100.
Catchwords:	TRUSTS – charitable trust – trust for the advancement of education – trust established in testator’s will imposed condition that students’ parents be Protestant – cy-près scheme – formulation of scheme – scheme removing religious condition approved and ordered – school named in testator’s will now one of three campuses of merged school – administration of scheme to apply to previous eight years during which income was accumulated
Legislation Cited:	Charitable Trusts Act 1993 (NSW), ss 6, 11 Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited:	Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456 Phillips v Roberts [1975] 2 NSWLR 207
Category:	Consequential orders (other than Costs)
Parties:	Perpetual Trustee Company Ltd (Plaintiff) Attorney General for the State of New South Wales (First Defendant) The State of New South Wales through its Department of Education (Second Defendant) CASPA Services Ltd (Third Defendant)
Representation:	Counsel: P Blackburn-Hart SC (Plaintiff) H El-Hage (First and Second Defendants) Solicitors: Bedson Legal (Plaintiff) Crown Solicitor’s Office (First and Second Defendants)
File Number(s):	2017/286679
Publication restriction:	Nil