Re Irving; McCann v Lamb - [2019] VSC 594

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 04439

IN THE MATTER of the will and estate of VICTOR JAMES WILLIAM IRVING, deceased

-and-

IN THE MATTER of the CERES TENNIS COURTS TRUST

-and-

IN THE MATTER of section 2 of the Charities Act 1978

-and-

IN THE MATTER of an application pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of questions arising in the administration of the estate

BETWEEN:

WILLIAM SYDNEY MCINTYRE MCCANN (as Trustee of the CERES TENNIS COURTS TRUST) and others (according to the Schedule attached)	Plaintiffs
v
JOHN WILLIAM BADEN LAMB (in his capacity as the Executor by Representation of the Will of VICTOR JAMES WILLIAM IRVING, deceased) and others (according to the Schedule attached)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2019
DATE OF JUDGMENT:	30 August 2019
CASE MAY BE CITED AS:	Re Irving; McCann v Lamb
MEDIUM NEUTRAL CITATION:	[2019] VSC 594

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CHARITABLE TRUSTS — Trust created by minutes of meetings — Gift of land for construction of two tennis courts and for creation of club — Whether trust for advancement of religion — Whether general charitable intention exists — Whether trust should be applied cy-près — Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1 — Inland Revenue Commissioners v Baddeley [1955] AC 572 — Attorney-General v Cahill [1969] 1 NSWR 85 — Anglican Trusts Corporation of the Diocese of Gippsland v Attorney-General for the State of Victoria [2008] VSC 352.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Whyte Just & Moore
For the Defendant	Mr RC Wells	Ingpen & Bent

HER HONOUR:

Introduction

Victor James William Irving died on 27 March 1963. On 27 June 1963, probate of his will was granted to his widow, Myrtle Harriet Irving. She died on 15 April 1970. On 21 August 1970, probate of her will was granted to Ada Jane Smith. Ada Smith died on 9 November 1977 and on 1 March 1978 probate of her will was granted to the first defendant, John William Baden Lamb. John Lamb became the executor by representation of the deceased’s will and estate.

The plaintiffs are the trustees of the Ceres Tennis Courts Trust (‘the trust’), which was created in 1926 when the deceased made a gift of land at 6 Wheatsheaf Street, Ceres, Victoria (‘the land’) to six persons as trustees. The terms of the trust are set out in the minutes of two meetings that took place in July 1925.

On 8 April 1985, the last surviving trustee of the original six trustees, Ernest Wesley McCann, died. Ernest McCann was survived by his wife and their four children. The children are the plaintiffs in this proceeding. On 11 June 1985, probate of Ernest McCann’s will was granted to the plaintiffs.

A dispute has since arisen over the legal status of the…

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 Irving; McCann v Lamb

Details

AGLC: Re Irving; McCann v Lamb [2019] VSC 594
Case: [2019] VSC 594
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the case of Re Irving; McCann v Lamb, the court was tasked with determining the validity and purpose of a charitable trust established for the construction of two tennis courts and the creation of a club on a parcel of land donated by Irving. The dispute arose as to whether the trust was intended for the advancement of religion or some other charitable purpose, and whether the trust should be applied cy-près.

The legal issues before the court included whether the trust had a general charitable intention and, if so, whether it was for the advancement of religion. Additionally, the court needed to decide if the trust should be applied cy-près due to uncertainty in its purpose. The court considered the relevant principles of charitable trusts, including the requirement for a general charitable intention, and examined whether the trust met the criteria for being applied cy-près.

The court found that the trust was established with a general charitable intention, but it was not for the advancement of religion. The court relied on precedents such as Roman Catholic Archbishop of Melbourne v Lawlor, Inland Revenue Commissioners v Baddeley, Attorney-General v Cahill, and Anglican Trusts Corporation of the Diocese of Gippsland v Attorney-General for the State of Victoria to support its decision. The court held that the trust should not be applied cy-près but rather should be applied for the purpose of constructing the tennis courts and creating the club as originally intended.

The court ordered that the trust be applied for the construction of the tennis courts and the creation of the club, as per Irving's original intention. The decision clarified the purpose of the trust and provided guidance on the application of charitable trusts in similar circumstances.

Orders