Re Anzac Cottages Trust - [2000] QSC 175

SUPREME COURT OF QUEENSLAND

CITATION: Re Anzac Cottages Trust [2000] QSC 175

PARTIES: THE PUBLIC TRUSTEE OF QUEENSLAND as trustee of THE ANZAC COTTAGES TRUST
(applicant)
v
THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(respondent)
BRISBANE LEGACY
(respondent)
GOLD COAST LEGACY CLUB INC
(respondent)
CAIRNS LEGACY CLUB INC
(respondent)
TOWNSVILLE LEGACY INC
(respondent)
BUNDABERG LEGACY INC
(respondent)
LEGACY CLUB OF IPSWICH INC
(respondent)
RSL (QLD) WAR VETERANS’ HOMES LIMITED
(respondent)
CATHERINE MULCAHY BELL
(respondent)
THE WAR WIDOWS’ GUILD OF AUSTRALIA (QUEENSLAND)
(respondent)
THE QUEENSLAND VASEY HOUSING AUXILIARY (WAR WIDOWS’ GUILD) ACN 009 708 810
(respondent)
THE ROYAL AUSTRALIAN AIR FORCE VETERANS’ RESIDENCES TRUST
(respondent)
TB SAILORS, SOLDIERS & AIRMEN’S ASSOCIATION OF QUEENSLAND
(respondent)

FILE NO: No 10221 of 1999

DIVISION: Trial Division

PROCEEDING: Trial

DELIVERED ON: 16 June 2000

DELIVERED AT: Brisbane

HEARING DATE: 23 May 2000

JUDGE: Atkinson J

ORDER:
(1) That the Anzac Cottages Trust (including the net proceeds of the sale of Anzac Cottage No 37) be applied cy pres.

(2) That the following scheme be approved:

1. That the funds of the Anzac Cottages Trust (“the Fund”) be applied cy pres by paying the same to the following charitable organisations in the shares set out as follows:-

(a)     Cairns Legacy Club Inc – one tenth;

(b)     Bundaberg Legacy Inc – one tenth;

(c)     Townsville Legacy Inc – one tenth;

(d)     Legacy Club of Ipswich Inc – one tenth;

(e)     Gold Coast Legacy Club Inc – one tenth;

(f)     The Queensland Vasey Housing Auxiliary (War Widows’ Guild) ACN 009 708 810 – one half.

Subject always to the scheme contained in the following provisions of this Order.

2. The Fund be used in conjunction with the assets of the charitable organisations to construct, repair and improve rental units on the organisations’ properties (including future acquired property).

3. The dwelling units built with the use of the Fund (“Anzac Units”) shall be maintained by the charitable organisations as accommodation for the purposes described in paragraph 4.

4. Anzac Units shall be provided by the charitable organisations to widows or widowers and their dependent children, if any, who meet one of the following criteria (“qualified widows or widowers”):

(a)     Widows or widowers, and their dependent children, if any, of persons who enlisted in Queensland and who died while on active service with the Australian Defence Forces and who are in necessitous circumstances; or

(b)     Persons designated as “war widows” or “war widowers” by the Commonwealth Department of Veterans’ Affairs, and their dependent children, if any, who are in necessitous circumstances.

5.   Provided always that if an Anzac Unit is vacant and there is no qualified widow or widower seeking accommodation of that rental unit, the charitable organisation may rent the Unit to such other disadvantaged persons as in the sole discretion of the Trustee most closely meet the above criteria.

6. The charitable organisations referred to in paragraph 1 must:

(a)     use and administer the application of the funds ordered to be applied cy pres by and through…

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.

Continue reading Re Anzac Cottages Trust

Details

AGLC: Re Anzac Cottages Trust [2000] QSC 175
Case: [2000] QSC 175
Decision Date: 16 June 2000

CaseChat Overview and Summary

The case of Re Anzac Cottages Trust involves the application of the doctrine of cy-près to the Anzac Cottages Trust, which was established to provide housing for widows and widowers of deceased members of the Australian Defence Forces. The dispute reached the Supreme Court of Queensland, where the court had to determine whether the trust should be applied cy-près, and if so, which cy-près scheme should be approved.

The primary legal issue before the court was whether the Anzac Cottages Trust should be applied cy-près, given that it was no longer possible to apply the trust in accordance with its original purpose. Additionally, the court had to decide which cy-près scheme should be approved to ensure that the trust's funds were applied in a manner as close as possible to the original charitable purpose. The court considered several proposed schemes before deciding on the most appropriate one.

The court concluded that the Anzac Cottages Trust should indeed be applied cy-près, as its original purpose could no longer be achieved. After evaluating various cy-près schemes, the court approved a scheme that directed the trust's funds to be divided among six specified charitable organisations, with the majority going to the Queensland Vasey Housing Auxiliary (War Widows’ Guild). The approved scheme required the funds to be used in conjunction with the assets of the charitable organisations to construct, repair and improve rental units on their properties, which would then be provided to qualified widows or widowers or, in certain circumstances, to other disadvantaged persons. The court also mandated that the charitable organisations use and administer the funds through a separate trust fund, the Anzac Cottages Trust Fund.

The final orders of the court mandated the application of the Anzac Cottages Trust cy-près in accordance with the approved scheme. Additionally, the court granted liberty to apply to the Public Trustee and Catherine Bell concerning the sale of Anzac Cottage No 37.

Orders

Orders of the court

(1) That the Anzac Cottages Trust (including the net proceeds of the sale of Anzac Cottage No 37) be applied cy pres.

(2) That the following scheme be approved:

1. That the funds of the Anzac Cottages Trust (“the Fund”) be applied cy pres by paying the same to the following charitable organisations in the shares set out as follows:-

(a) Cairns Legacy Club Inc – one tenth;

(b) Bundaberg Legacy Inc – one tenth;

(d) Legacy Club of Ipswich Inc – one tenth;

(e) Gold Coast Legacy Club Inc – one tenth;

(f) The Queensland Vasey Housing Auxiliary (War Widows’ Guild) ACN 009 708 810 – one half.

Subject always to the scheme contained in the following provisions of this Order.

2. The Fund be used in conjunction with the assets of the charitable organisations to construct, repair and improve rental units on the organisations’ properties (including future acquired property).

3. The dwelling units built with the use of the Fund (“Anzac Units”) shall be maintained by the charitable organisations as accommodation for the purposes described in paragraph 4.

4. Anzac Units shall be provided by the charitable organisations to widows or widowers and their dependent children, if any, who meet one of the following criteria (“qualified widows or widowers”):

(a) Widows or widowers, and their dependent children, if any, of persons who enlisted in Queensland and who died while on active service with the Australian Defence Forces and who are in necessitous circumstances; or

(b) Persons designated as “war widows” or “war widowers” by the Commonwealth Department of Veterans’ Affairs, and their dependent children, if any, who are in necessitous circumstances.

5. Provided always that if an Anzac Unit is vacant and there is no qualified widow or widower seeking accommodation of that rental unit, the charitable organisation may rent the Unit to such other disadvantaged persons as in the sole discretion of the Trustee most closely meet the above criteria.

6. The charitable organisations referred to in paragraph 1 must:

(a) use and administer the application of the funds ordered to be applied cy pres by and through the establishment of a separate trust fund, termed and styled “Anzac Cottages Trust Fund”; and

(b) invest and apply the capital and income thereof only in accordance with the Trusts Act 1973 and this scheme or as may be ordered by a Judge of the Supreme Court of Queensland.

(3) Liberty to apply to the Public Trustee and Catherine Bell with regard to the sale of Anzac Cottage No 37.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re Anzac Cottages Trust [2000] QSC 175
PARTIES:	THE PUBLIC TRUSTEE OF QUEENSLAND as trustee of THE ANZAC COTTAGES TRUST (applicant) v THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent) BRISBANE LEGACY (respondent) GOLD COAST LEGACY CLUB INC (respondent) CAIRNS LEGACY CLUB INC (respondent) TOWNSVILLE LEGACY INC (respondent) BUNDABERG LEGACY INC (respondent) LEGACY CLUB OF IPSWICH INC (respondent) RSL (QLD) WAR VETERANS’ HOMES LIMITED (respondent) CATHERINE MULCAHY BELL (respondent) THE WAR WIDOWS’ GUILD OF AUSTRALIA (QUEENSLAND) (respondent) THE QUEENSLAND VASEY HOUSING AUXILIARY (WAR WIDOWS’ GUILD) ACN 009 708 810 (respondent) THE ROYAL AUSTRALIAN AIR FORCE VETERANS’ RESIDENCES TRUST (respondent) TB SAILORS, SOLDIERS & AIRMEN’S ASSOCIATION OF QUEENSLAND (respondent)
FILE NO:	No 10221 of 1999
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	16 June 2000
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2000
JUDGE:	Atkinson J
ORDER:	*(1) That the Anzac Cottages Trust (including the net proceeds of the sale of Anzac Cottage No 37) be applied cy pres.* (2) That the following scheme be approved: *1. That the funds of the Anzac Cottages Trust (“the Fund”) be applied cy pres* by paying the same to the following charitable organisations in the shares set out as follows:- (a) Cairns Legacy Club Inc – one tenth; (b) Bundaberg Legacy Inc – one tenth; (c) Townsville Legacy Inc – one tenth; (d) Legacy Club of Ipswich Inc – one tenth; (e) Gold Coast Legacy Club Inc – one tenth; (f) The Queensland Vasey Housing Auxiliary (War Widows’ Guild) ACN 009 708 810 – one half. Subject always to the scheme contained in the following provisions of this Order. 2. The Fund be used in conjunction with the assets of the charitable organisations to construct, repair and improve rental units on the organisations’ properties (including future acquired property). 3. The dwelling units built with the use of the Fund (“Anzac Units”) shall be maintained by the charitable organisations as accommodation for the purposes described in paragraph 4. 4. Anzac Units shall be provided by the charitable organisations to widows or widowers and their dependent children, if any, who meet one of the following criteria (“qualified widows or widowers”): (a) Widows or widowers, and their dependent children, if any, of persons who enlisted in Queensland and who died while on active service with the Australian Defence Forces and who are in necessitous circumstances; or (b) Persons designated as “war widows” or “war widowers” by the Commonwealth Department of Veterans’ Affairs, and their dependent children, if any, who are in necessitous circumstances. 5. Provided always that if an Anzac Unit is vacant and there is no qualified widow or widower seeking accommodation of that rental unit, the charitable organisation may rent the Unit to such other disadvantaged persons as in the sole discretion of the Trustee most closely meet the above criteria. 6. The charitable organisations referred to in paragraph 1 must: (a) use and administer the application of the funds ordered to be applied cy pres by and through…**