Re Corporation of the Synod of the Diocese of Brisbane

[1995] QSC 334

IN THE SUPREME COURT

OF QUEENSLAND

No. 991 of 1994
Brisbane

Before Mr Justice Ambrose

[Re Corporation of the Synod of the Diocese of Brisbane]

IN THE MATTER of the Trusts Act 1973

- and -

IN THE MATTER of A Trust with respect to land at 268 Waterworks Road, Red Hill, being the site of St Barnabas' Church recorded in a Nomination of  Trusts bearing date 13 May 1908

REASONS FOR JUDGMENT  - B.W. AMBROSE J

Judgment delivered 14/12/1995

CATCHWORDS:                 TRUST FOR CHARITABLE PURPOSE - whether for the purposes of the congregation for the time being of a named church of a specified religious organisation in a parish, or for the religious purposes generally of that religious organisation in that parish - application cyprès -the Trusts Act s.105 - use to be made of circumstances before and after time of creation of trust in aid of its construction.

Counsel:Mr S L Doyle S.C. for the applicant

Mr F L Harrison Q.C. for the respondent R J Glazebrook

Mr A E Lyons for the respondent Attorney-General

Solicitors:Messrs Deacons Graham & James for the applicant

Messrs John Nagel & Co for the respondent R J Glazebrook

The Crown Solicitor for the respondent Attorney-General

Hearing Date:              6, & 7 November 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 991 of 1994
Brisbane

Before Mr Justice Ambrose

[Corporation of the Synod of the Diocese of Brisbane]

IN THE MATTER of the Trusts Act 1973

- and -

IN THE MATTER of A Trust with respect to land at 268 Waterworks Road, Red Hill, being the site of St Barnabas' Church recorded in a Nomination of  Trusts bearing date 13 May 1908

REASONS FOR JUDGMENT  - B.W. AMBROSE J

Judgment delivered 14/12/1995
           This is an application by the Corporation of the Synod of the Diocese of Brisbane as the trustee of land described as Lot 1 on Registered Plan No. 20713, Certificate of Title Volume 691, Folio 159 at 268 Waterworks Road, Red Hill, which is recorded in Nomination of Trustees dated 13 May 1908, executed by David Thompson Seymour and John Stack as settlors and David Thompson Seymour, John Stack and George Sargeant Hammond as trustees, upon which land is erected the St Barnabas' Church for directions as to the applicant's powers to deal with that land and with the proceeds of an insurance claim arising from fire damage to the church building sustained in January 1994.  The applicant also seeks that a scheme be settled for the administration of the trust property recorded in the Nomination of Trustees with respect to the said land and property in the form in a schedule to the application.  This application has been precipitated by unhappy differences that have arisen between two groups of parishioners within the Ithaca Parish of the Archdiocese of the Church of England in Brisbane.
           Within that Parish there are two churches - St Barnabas' Church dedicated in 1888 and St Paul's Church dedicated in 1952.
           At the time of its dedication, St Barnabas' Church was in a locality known as Ithaca, which contemporary records suggest was a beautiful area some little distance removed from the centre of the city of Brisbane at that time, enjoying a rural amenity.  It, with other closely located developing localities or suburbs, was within the Church of England Parish of Milton, the parish church of which was then (as now) Christ-Church.  In parochial information contained in the 1888 year book, St Barnabas' Church is shown as located at Red Hill.  The area of the Parish of Milton is shown to be 6 square miles and its population to be 5,000.  It is clear on the material that subsequent to the dedication of St Barnabas', there was a very significant, rapid development in the inner western suburbs of Brisbane resulting in a significant increase in population.
           Indeed, on 19 June 1890 assent was given to a Canon to provide for the regulation, inter alia, of parishes and parochial districts and to define the powers and duties of parochial officers with respect to the Diocese of Brisbane.
           Pursuant to that canon on 7 May 1903 it was resolved "that the districts of St Barnabas' Ithaca and St James Enoggera (within the Parish of Milton) be respectively declared parochial districts within the meaning of the canon and their boundaries defined as approved by the origination committee".
           In 1903 the Ithaca locality was incorporated as a town.  This indicates the nature of the development that had occurred and was occurring in the area generally.
           On 7 June 1907 there was a new canon published abolishing all the existing parochial districts and governing the creation of new ones.
           On 10 October 1907 there was a diocesan council meeting resolving that on receipt of an application Ithaca should be constituted a parochial district.  By meeting of the diocesan council on 2 April 1908, the parochial district of Ithaca was recreated.  I infer that it covered the same area as that defined in the meeting of the origination committee of 5 May 1903, to which I have referred.
           On 13 May 1908, a Nomination of Trustees, in respect of the land upon which St Barnabas' Church was constructed, was executed and registered, and it is with respect to the trust recorded in that nomination that this application is brought.
           It is convenient to record briefly what the evidence discloses concerning the acquisition and development of the land, the subject of that trust.
           On 19 December 1887 John Joseph Lovekin, being the owner of the whole of the land described in the Nomination of Trustees in consideration of the sum of £150 paid to him by David Thompson Seymour, John Stack and Thomas Woodcock as trustees for the Church of England transferred that land to them as joint tenants and as trustees for the Church of England.
           Subsequent to that transfer, on 8 February 1888 there issued in favour of David Thompson Seymour, John Stack and Thomas Woodcock as "trustees" a Certificate of Title.
           On 20 February 1888 there was a meeting held of "The committee of the proposed Anglican Church Waterworks Road, Red Hill" at the residence of Mr Seymour at Glenrosa Road.  Present at that meeting were seven members of the committee.  Three of those members were the persons referred to as "trustees" in the Memorandum of Transfer of 19 December 1887 and the Certificate of Title of 8 February 1888.  The minutes of the meeting record that those gentlemen "be trustees".  They go on to record that Mr Stack's offer to provide plans and superintend the building of the church on the site purchased be accepted; that the trustees be empowered to borrow £300 on the security of that land; that Mr Justice Harding be requested to lay the foundation stone of the building; and that the Choir of Christ-Church Milton be requested to conduct the singing on the occasion.  I infer that the occasion, to which reference is made, was the laying of the foundation stone.
           Historical records show that the foundation stone "of a new church for Red Hill in the Parish of Milton was laid by Mr Justice Harding" on Saturday 24 March 1888.  An article in "the Parish Chronicle" observes that the new church "is to be dedicated to S Barnabas".
           In July 1888 the Parish Chronicle records with respect to St Barnabas' Red Hill:

"The above Anglican Church recently erected was formerly opened by a special Choral service on Tuesday evening June 26 ...".

It appears that a minister was appointed to St Barnabas' some time prior to September 1888.
           I infer that thereafter the church was used for the purposes of religious activities of members of Church of England, many, if not most of whom, would have been residing within the Parish of Milton in the locality known as Ithaca.
           Subsequently, in 1903 and 1907 St Barnabas' was affected by redefinition of parochial districts within the diocese of Brisbane and from 2 April 1908 was recorded as being within the parochial district of Ithaca.
           It is clear then that when the nomination of trustees, to which this application relates, was executed on 13 May 1908, St Barnabas' had functioned as a Church of England at Red Hill for a period of 20 years.  During the whole of that time two of the three persons executing the Nomination of Trustees then registered, had held the land as trustees. It appears that one of the three original trustees, (Thomas Woodcock) had died prior to the execution of the Nomination of Trustees on 13 May 1908.
           It is unexplained what if any connection there was between the death of Mr Woodcock and the appointment by the two surviving initial trustees of themselves and George Sargeant Hammond to be trustees of that land on 13 May 1908.
           The terms of the trusts upon which the three trustees nominated on 13 May 1908 held the land upon which St Barnabas' was then constructed are to be found in the schedule of trusts.  That schedule reads:

"In trust for St Barnabas Church of England Ithaca Brisbane and to the use and for the purposes of the said Church and it is hereby declared that the said Trustees may at any time if they shall see fit sell lease or mortgage the said land upon being authorised so to do by the resolution of a majority of the members of the said Church present at any meeting of the members thereof to be convened by notice in writing specifying the object of such meeting and the business to be transacted thereat and delivered to or sent through the post to the usual or last known place of abode or business of such members seven days at least before the date appointed for such meeting provided that only persons who have signed the roll of membership of the said Church shall be entitled to receive the said notice or be present and vote at any such meeting and every such resolution as aforesaid besides conferring authority upon the Trustees may also in the case of a sale specify the price and terms of sale and in the case of a lease the term and rental thereof and in the case of a mortgage the amount to be borrowed upon the security thereof the rate of interest to be paid thereon and the period of such mortgage or any such resolution as aforesaid may confer upon the Trustees a general authority for any of the purposes aforesaid and in such case all the terms and conditions of such sale lease or mortgage shall be in the discretion of the said Trustees."

One of the matters debated upon the application was whether in construing the trust from the terms recorded in the Nomination of Trustees regard ought be had to circumstances which existed at the date of the execution of the Nomination of Trustees or whether, on the contrary, regard ought be had to circumstances as they existed at the date the settlor(s) constituted Messrs Seymour, Stack and Woodcock, trustees of the land on (or prior to) 8 February 1888.
           It is clear on the evidence that the terms contained in the Nomination of Trustees in 1908 were expressed at least 20 years subsequent to the creation of that trust.  Subsequent to the creation of the trust the church building was erected and it was used for the religious purposes secured by the trust for a period of 20 years. 
           Although there is an absence of direct evidence as to the what were the terms of the trust created in 1887/1888, I take the view that the fact that two of the three original trustees executed the Nomination of Trustees in May 1908, permits me safely to infer that the addition of a new trustee to replace one of the original trustees who had died, was not the occasion upon which the two remaining trustees would have taken the opportunity to incorrectly record the trusts upon which they had held the land, upon which St Barnabas' was constructed, for a period of 20 years.  On the contrary I am persuaded that the probability is that the trusts specified or recorded on the Nomination of Trustees were the trusts upon which the trustees had held the land, both before and after the church building was constructed on it.
           The evidence does not disclose at whose expense the land was purchased by the three "joint tenants, David Thompson Seymour, John Stack and Thomas Woodcock as Trustees for the Church of England" in December 1887.  The memorandum of transfer between Lovekin and those trustees certainly records that he was paid £150 by those trustees who purchased as trustees for the Church of England Ithaca Creek.
           While the evidence is silent as to whether one or more of those trustees provided that money or as to whether one or more of the members of the committee of "Proposed Anglican Church Waterworks Road, Red Hill" who attended the meeting, to which I have referred, on 20 February 1888 also contributed to that purchase price, there is nothing to suggest that the moneys paid to the vendor of the land came from outside that group.  In my view it is unprofitable to speculate as to the source of that purchase price.  The likelihood is that one or more of the persons, to whom I have referred, contributed that sum.  On the other hand perhaps some other benefactors contributed to that sum.  Whatever may have been the source of the funds used to purchase the property for construction of St Barnabas', the trustees took that land, not for their own benefit, but for the purpose of constructing on it St Barnabas' Church and this involved members of the committee doing the things discussed in the meeting of 20 February 1888.
It is perfectly clear that once a charitable trust is created its terms may not be varied or altered by the trustee even with the acquiescence of the settlor or person creating the trust. Once the trust comes into existence, then subject to intervention of the court, should the purpose of the trust no longer be achievable (vide s.105 of the Trustee Act 1973), the trust property stays burdened with the trust imposed upon it by the settlor. 
           In the absence of any evidence to the contrary and keeping in mind the extensive inquiries and investigations which have apparently been made with a view to discovering any record of the express terms of the trust which obviously existed prior to the issue of the Certificate of Title on 8 February 1888, I infer that the Nomination of Trustees executed on 13 May 1908 simply records the trust upon which the three trustees named in the Certificate of Title issued in respect of the trust land on 8 February 1888 held that land.
           The fact that at the time of the issue of the Certificate of Title, St Barnabas' Church had not been erected on the land seems to me to be of no importance in determining what the trusts were upon which the trustees then held the land.  It is abundantly clear from the minutes of the committee of 20 February 1888 - less than a fortnight after the Certificate of Title was obtained by three of the committee members as trustees - that that land was acquired for the purpose of the erection of a Church of England - whether or not at that precise time a name had been chosen for the church.   It is clear from the Parish Chronicle published in April 1888 that the name had certainly been selected by then.
           In construing the terms of the trust recorded in the Nomination of Trustees therefore, I take the view that no assistance can be obtained from reference to the content of canons or the history of division of the Diocese of Brisbane into parochial districts and/or parishes subsequent to the dedication of St Barnabas' in June 1888 at a time when it was contained within the Parish of Milton.  Indeed, I would infer that the trust arose at some time prior to the payment of the money by the three original trustees to Mr Lovekin for the purchase of the church land on 19 December 1887 and that is the relevant time at which to examine the circumstances to assist in construing the terms of the trust recorded in the Nomination of Trustees of 13 May 1908.
           I am unpersuaded that much assistance can be obtained in any event from the terms of the canon passed for creation, inter alia, of parochial districts on 19 June 1890 or indeed from the various steps taken subsequent to that canon leading to St Barnabas' finding itself located within the parochial district of Ithaca.  However, it was contended strongly for the applicant that reference to these canons and to the fact that St Barnabas' found itself relocated from the Parish of Milton into the parochial district of Ithaca assists in the construction of the trust which it advances.
           It is not suggested that the content of such canons and the location of the trust land within a defined parish or parochial district at the time when the trust was created are not circumstances which may assist in the construction of the terms of the trust.  Obviously the terms of any trust may be made clearer if viewed in the context of circumstances which existed or which were probably within contemplation of the settlor at the time the trust was created.  I am quite unpersuaded however that circumstances occurring or coming into contemplation after the creation of the trust are of assistance in construing its terms.
           It is convenient now to trace briefly the disputes within the Parish of Ithaca which have led to the making of this application.
           A history of the Church of St Barnabas' Ithaca is contained in a booklet prepared to celebrate the 60th anniversary of its dedication printed in June 1948.  In that booklet reference is made to the dedication of the church that took place on 26 June 1888 and a report of the service of dedication which appeared in a Brisbane newspaper the following day.  The booklet recounts that there was a very large keen congregation at the church and that a general meeting of parishioners was held almost immediately.  It records a statement by the treasurer (presumably Mr Stack) that nearly £500 had been contributed towards the cost of the land and building to that time.  It is recorded that at that meeting a discussion took place as to whether "the area" would be formed into a separate parish or remain as part of Milton parish.  The meeting decided in favour of separation, but as the writer of the booklet observed, it was to be many years "and after one false start before this could be achieved".
           At some time during the period 1920-1939, due to a significant increase in population in the Ashgrove area, steps were taken to purchase a large corner site in Ashgrove outbound of the St Barnabas' Church site, upon which was constructed a church hall.  The church hall was named St Paul's Church Hall and was erected on part of the site leaving a vacant corner area for the construction of a permanent church at a later date.  That permanent church is St Paul's Church which was dedicated in 1952 on the corner of Jubilee Terrace and Waterworks Road.
           A distance of about 1.5 kilometres separates St Barnabas' Church at Red Hill from St Paul's Church on the corner of Jubilee Terrace and Waterworks Road.
           Disputes have arisen between the parishioners of Ithaca as to the maintenance of St Barnabas' Church. One view advanced is that it would be to parish interests and presumably to the interests of the diocese if the St Barnabas' Church site was sold and the proceeds of sale and the proceeds of insurance money received in respect of damage done to the wooden church building in 1994 were used for the purposes of the parish generally and in particular for the purpose of refurbishment and improvement to St Paul's Church and Rectory.  A great deal of material has been placed before me including reports, recommendations, petitions, letters etc from concerned parishioners relating to the future of the St Barnabas' Church site and building.  This is not the occasion either to review or to express opinion upon the various views expressed with passion and emotion concerning the way in which St Barnabas' Church should be dealt with.  I will observe merely that meetings of the parish council have been held, which seem to be centred at and conducted from the St Paul's area.  Votes have been taken and it seems that of all people interested enough to vote on the matter about one‑third of the voters object to the closing down of St Barnabas' and the disposition of its land, while about two-thirds of the voters support that course.  Not surprisingly the parishioners voting for the retention of St Barnabas' are all regular attenders at that church and efforts have been made to have such persons register themselves as members of the St Barnabas' congregation and to vote expressly for the retention of that church and the repair of its fire damage which can be achieved by the expenditure of insurance moneys available for that purpose.

           The members of the congregation of St Barnabas' have supported plans prepared at great trouble, expense and inconvenience by members of that congregation and particularly by professional people prepared to make their professional expertise available for the purpose to rejuvenate the traditional religious purposes for which the land and church buildings have been used to include the provision of various social and community services on the church land for the purposes of following the faith of the Church of England.
           These matters have been debated between one group of persons mainly connected with St Paul's Church and another group of persons mainly connected with St Barnabas' Church and it seems unlikely that those matters will be resolved by agreement.
           The fact is however that there is no resident priest at St Barnabas'.  Religious services are there provided by priests who come to the church for that purpose on a regular basis.  Other church related activities can be conducted from the premises which include a hall adjacent to the church which subsequent to fire damage to the church has been used regularly for church services.
           It emerged that one of the reasons promoted by parishioners attached St Paul's Church for the disposal of the St Barnabas' Church land is that, having regard to the financial need of the Church of England generally in the diocese, philosophically it is undesirable to have two churches in the one Parish of Ithaca when there are other areas in the diocese which could be better served using funds which would be produced if St Barnabas' Church were closed down and its site sold for commercial development purposes.  This view emerges particularly in statements made by persons attached to St Paul's Church which the evidence suggests needs significant money spent on its rectory if persons are to be persuaded to accept a position as rector in that church.  It is said by persons who form the congregation of St Paul's Church that the congregation of St Barnabas' Church can become part of an enlarged congregation of St Paul's Church and thus from the point of view of the diocese the purposes of the Church of England within the Parish of Ithaca will be better served and there will be a desirable "rationalisation" of church assets and facilities within that area.
           In my view, while those matters are of philosophical interest, they are not really germane to the determination of the issue before me.  The application before me is under the Trust Act and it is contended essentially for the applicant that the words "in trust for St Barnabas' Church of England Ithaca Brisbane and to the use and for the purposes of the said Church" refers to the purposes of the organisation generally of the Church of England such as the advancement of religion.  It is said that the trust is for the Church generally and its purposes and not for the members from time to time of St Barnabas' Church of England Ithaca.  It is said that the trust is for the purposes of the Church of England in a particular area and that it is for the advancement of religion in that area.  On the basis that one may look at the circumstances in existence at the date of the execution of the Nomination of Trustees on 13 May 1908, it is contended that the area in contemplation is the Parish of Ithaca.  Actually in 1908 St Barnabas' Church was then to be found in the parochial district of Ithaca.  Subsequently however in essence that parochial district has been redefined to be the Parish of Ithaca.
            In my view this contention cannot succeed because when the trust was created there was no parish or parochial district of Ithaca.  That came many years after the trust had been created and the church dedicated and habitually used.  However, it is contended that, even accepting this point, the proper construction of the trust would involve reference to the Parish of Milton in which St Barnabas' was located for a period of 15 years or more before the parochial district of Ithaca was first created.  If one ignores the creation of the parochial district of Ithaca in 1903, when construing the terms of the trust created in 1887 but adopts the argument advanced by the applicant, the trust ought be construed to be for the purposes of the Church of England in the Parish of Milton.
           The problem I have with this contention is that at the time the trust was created and indeed St Barnabas' constructed in 1888, the land was within the Parish of Milton and there was already in the Parish of Milton another church - Christ-Church.  It is clear therefore that the specification that the land was to be held in trust for the purposes of St Barnabas's Church of England, which was the name given to one of two churches contemplated to be located in the Parish of Milton upon dedication of St Barnabas', militates against the contention that the specification of St Barnabas' Church really was synonymous with the purposes of the Church of England generally within the Parish of Milton.  Obviously  not all members of the Church of England in the Parish of Milton would have been expected to be members of St Barnabas' Church.  Some of those parishioners would have been and would have been expected to remain members of Christ-Church.
           Critical to the construction of the trust for which the applicant contends - that by its express terms the land is to be held for the purposes of the Church of England in the Parish of Milton (or alternatively on its primary argument, the Parish of Ithaca) as distinct from, for the purposes of those members of the Church of England who for the time being are members of the congregation of St Barnabas' Church of England Ithaca, seems to be the proposition that when created there was only one church in the parish or parochial district and that therefore the settlor in referring to that one church was really referring to the purpose of the Anglican Church generally in the Parish, the presence of which was indicated by reference to its only church in the area specified in the administrative scheme of the diocese, whether it be parish or parochial district or other area.  In advancing this contention the applicant relies upon the fact that when the Nomination of Trusts was executed, St Barnabas' was in fact the only Church of England located within the parochial district of Ithaca.  It is only since that time that St Paul's Church of England, a second church within the same parish, has come into existence and therefore it is argued that construction of the trust in 1908 when there was only one church in the parish or parochial district of Ithaca leads comfortably to the conclusion that the land was to be used for the purpose of the Church of England in the parish rather than for the purpose of the congregation attending the St Barnabas' church.
           In my view this contention is flawed because at the time the trust was created the trust land was in fact in the Parish of Milton where there was already constructed a church - Christ-Church.  While it may well be arguable that had the trust been expressed to be for the purposes of Christ-Church it may have been construed to be for the benefit of the Parish of Milton, it seems to me that the specification in the trust that was to be for the purpose of a church (St Barnabas') to be constructed as a second church in the Parish of Milton,  makes it impossible to construe the grant as being for the purpose of the Parish of Milton.
           For reasons which I have already given, I take the view that in construing the trust one must look at the circumstances as they existed when it was created in 1887-88 and not at the circumstances as they existed when the Nomination of Trustees was formally executed upon the death of one of the original trustees.
           When the parochial district of Ithaca was re-established on 2 April 1908, regard was had to a petition of members of the Church of England residing in the locality of Ithaca which was then part of the Parish of Milton which recited "There is in such locality a building licensed, consecrated or set apart for the worship of God according to the rights and ceremonies of the Church of England and has been a parochial district for well nigh 20 years".
           I am unpersuaded that the terms of the trust can properly be construed so that the land upon which St Barnabas' was constructed could be used for the purposes of the Church of England in whatever parochial district or parish or other locality defined for the purpose of the administration of the Church of England in the Brisbane diocese, into which from time to time the St Barnabas' site might be included.
           I find persuasive the contention for the respondent that the intention of the settlor emerging from the terms of the Nomination of Trustees is that the church land (including the improvements on it) is to be held for the purposes of the congregation for the time being of St Barnabas' Church of England regularly attending for religious worship and voluntarily providing community support and other facilities motivated by its religious and spiritual precepts on that land. This interpretation accords with the adoption by Martin J in Re Richardson (1956) VLR 706 of a definition of "church" in the Oxford Dictionary as "a congregation of Christians locally organised into a society for religious worship and spiritual purposes under the direction of one set of spiritual office bearers". That the trust that the land be held for the use and purposes of St Barnabas' Church of England Ithaca should be construed to mean that it be held for the religious worship and spiritual purposes of the members of the congregation for the time being of the Church of England regularly using that land in an organised way and under the direction of one set of spiritual office bearers is supported in my view by the authorities and is consistent with the circumstances pertaining in the Parish of Milton in 1887 when the trust was created and when there already existed in that parish some distance away another Anglican Church called Christ-Church.
           There is no evidence to suggest that the land and buildings held by the applicant as trustee may not continue to be used for the original purposes of the trust.  It is the function of this Court, upon this application to determine whether it has ceased to be practical to use the trust property to secure the object for which the trust was created in the first place.  The Court has no unlimited power or discretion to make an order for the sale of and disposition of the proceeds thereof of the trust property however expedient it may appear to be to do so, having regard to current philosophical views as to the desirable spread of church resources in other areas of Brisbane or for that matter within the area currently described as the Parish of Ithaca.
           In Weir Hospital [1910] 2 Ch 124, Cozens-Hardy MR considered a case where a testator had devised property to trustees for charitable uses and the trustees sought to use a significant part of the income from one of the properties for the purpose of enlarging and maintaining another charitable institution altogether. At p.131, Cozens-Hardy MR pointed out that where the original purpose of a charity cannot be carried into effect in the exact way directed by the testator, a court may apply the trust property for similar charitable purposes on a cyprès application.
           Farwell LJ at p.135 adopted as a correct statement of the law what fell from Lord Romilly in Philpott v. St George's Hospital (1859) 27 Beav 107, 111 where his Lordship observed:

"It has, I think, of late, been sometimes considered, that whenever the Court had to direct a scheme to be framed for the establishment of a charity, it had power to deal with the property as it pleased, and in point of fact to do anything, which, within certain limits, it thought expedient to be done with the property.  A more erroneous opinion, and one less in accordance with the decisions of this Court in matters of charity, can hardly be conceived.  The confusion and error have arisen from this - that the Court has an unlimited power and discretion or nearly so, in some cases, in which it makes a scheme, but that in other cases it has not.  The distinction consists in this:- If the testator has, by his will, pointed out clearly what he intends to be done, and his directions are not contrary to law, this Court is bound to carry that intention into effect, and has no right and is not at liberty to speculate upon whether it would have been more expedient or beneficial for the community that a different mode of application of the funds in charity should have occurred to the mind of the testator, or that he should have directed some different scheme for carrying his charitable intentions into effect.  Accordingly instances of charities of the most useless description have come before the Court, but which it has considered itself bound to carry into effect."

Adverting to the facts before him, Farwell LJ at p.137 observed:

"that the Commissioners, 'after carefully considering the possibilities of a convalescent home and of a cottage hospital, decided that such institutions in the locality in question were not desirable forms of medical charity; that cottage hospitals are not suited to the needs of the nearer suburbs of London';  and they determined to establish a nurses' home at the Hawthorns, and, subject thereto, to hand over the whole of the estate to the Bolingbroke Hospital.  It was no part of the Commissioners' duty to consider whether cottage hospitals are or are not desirable.  The testator had in terms directed such a hospital to be established at the Hawthorns ... ".

He continued at p.138:

"They are bound to apply the funds in the named charities unless it be impracticable.  It is clearly impossible for the Commissioners or trustees to decline to carry out the trusts of a single named lawful charity because they disapprove of it.  It is equally clear that if they have the choice of two or more charities they cannot apply a part of the trust funds towards one of such charities and refuse to apply the balance to the others because they disapprove of them.  A case for the cyprès application of trust funds cannot be manufactured, but must arise ex necessitate rei."

In the same case Kennedy LJ at 140 observed:

"Where the directions of the testator do not offend against either law or public policy, the application of the cyprès doctrine to the employment of his charitable bequest is permissible only where the administration of the trust fund in accordance with the testamentary directions of the donor either is, or, as is the commoner case for the application of the doctrine, has through a supervening change of circumstances in course of time become, practically impossible. ...

But neither the Court of Chancery, nor the Board of Charity Commissioners, which has been entrusted by statute, in regard to the application of charitable funds, with similar jurisdiction, is entitled to substitute a different scheme for the scheme which the donor has prescribed in the instrument which creates the charity, merely because a coldly wise intelligence, impervious to the special predilections which inspired his liberality, and untrammelled by his directions, would have dictated a different use of his money.  The cyprès document can properly be applied only where (to borrow language from Sir George Jessel M.R. in In re Campden Charities (18 Ch. D. 323) it is or has become impossible beneficially to apply the property left by the founder or donor in the exact way in which he has dictated it to be applied, and it can only be applied beneficially to similar purposes by different means."

Occasions for applying property cyprès are listed in s.105 of the Trusts Act 1973. I can find nothing in the evidence led upon this application to suggest that the circumstances come within the matters listed in s.105. In particular, there is nothing in the evidence to suggest that if the insurance moneys to which the trustee is entitled as the result of fire damage to the church are expended to repair the church, it cannot be used in all respects as it was used prior to the fire which caused the damage to attain the purposes which the land is held in trust. There is nothing to suggest that the land and improvements on it may not now and for an indefinite time in the future be used for purposes within the spirit of the trust created in 1887-88.
For reasons I have already given I am quite unpersuaded that the original purposes for which the land was held in trust were limited by reference to any area which then was, but which has since ceased to be a unit for any purpose, or by reference to a class of persons or to an area which has for any reason since, ceased to be suitable having regard to the spirit of the trust or to be practical in administering the trust within the meaning of s.105(1)(d) of the Trusts Act 1973.
           All the evidence indicates that the parishioners who donate their time and resources so that the trust property may be used for the purpose for which it was acquired and developed are both willing and able to provide the human and financial resources necessary to enable it to continue to be used, as it has been used for more than 100 years, for those purposes.
           Upon the evidence no circumstances have been shown to exist which could conceivably justify the making of any order to administer cyprès the land and improvements held by the applicant in trust for the religious worship and spiritual purposes of the membership of the congregation for the time being of St Barnabas' Church of England at Red Hill who regularly use that trust property in an organised way for those purposes, and who have in the past and who apparently are still able to provide the human and financial resources necessary to maintain and keep the trust property operating for the purpose for which it was acquired.
           Upon the evidence there is no legal justification for any moneys, to which the trustee is entitled by way of insurance indemnity in respect of damage by fire to church property, not to be expended to repair damage done to the church so that the trust property may again be used conveniently for the purposes for which it is held in trust.
           The application is refused.  I decline to settle any scheme for administration of the trust, either in the form of the scheme to the schedule to the application or in any other form.
           I will hear argument on the question of costs from the applicant and the respondents to its application.  The Attorney-General has already made submissions with respect to his costs.