Re Municipal Orchestra Endowment Fund - [1999] QSC 200

IN THE SUPREME COURT
OF QUEENSLAND
No. 4239 of 1999
Brisbane
Before Williams J
[Re Municipal Orchestra Endowment Fund]

IN THE MATTER of THE TRUSTS ACT 1973
- and -
IN THE MATTER of the QUEENSLAND STATE and MUNICIPAL ORCHESTRA ENDOWMENT FUND
- and -
IN THE MATTER of an application by PERPETUAL TRUSTEES QUEENSLAND LIMITED (ACN 009 656 811) of Level 10, Riverside Centre, 123 Eagle Street, Brisbane in the State of Queensland the sole surviving trustee of the Fund.

CATCHWORDS: CHARITIES - CHARITABLE GIFTS AND TRUSTS - CONSTRUCTION - court should apply a ‘benignant approach’ in favour of a charity if words defining the purpose of a trust are ambiguous.

Taylor v Taylor (1910) 10 CLR 218; Hadaway v Hadaway (1955) 1 WLR 16; Guild v Inland Revenue Commissioners (1992) 2 AC 310 considered.
CHARITIES - CHARITABLE GIFTS AND TRUSTS - CONSTRUCTION - usage may be presumptive evidence if the words defining the purpose of a trust are vague or general - the Queensland State & Municipal Orchestra only in existence for a short period of time - whether regard may still be had to its history.
Bunting v Sargent (1879) 13 Ch D 330; Re Samford Hall Trust (1995) 1 Qd R 60 considered.
CHARITIES - CHARITABLE PURPOSES - ADVANCEMENT OF EDUCATION - whether music and musical appreciation is considered an aspect of education - whether purpose of trust was the advancement of education by imparting to the members of the orchestra, and through them to the general public, knowledge and appreciation of music - whether the element of pleasure or amusement may be characterized as an inevitable concomitant or as the real fundamental purpose.
The Commissioners for Special Purposes of Income Tax v Pemsel (1891) AC 531;
In Re MacDuff (1896) 2 Ch 451;
Attorney-General v National Provincial and Union Bank of England (1924) AC 262;
Williams’ Trustees v Inland Revenue Commissioners (1947) AC 447; Attorney-General v Marchant (1866) LR 3 Eq 424; considered.
Royal Choral Society v Commissioners of Inland Revenue (1943) 2 All ER 101, applied.
In Re Delius: Emanuel v Rosen (1957) Ch 299;
The Commissioners of Inland Revenue v The Glasgow Musical Festival Association (1926) SC 920;
In Re Levien: Lloyds Bank v Worshipful Company of Musicians (1955) 1 WLR 964;
Re Lowin: Perpetual Trustee Co Ltd v Robins (1967) 2 NSWR 140; Canterbury Orchestra Trust v Smitham (1978) 1 NZLR 787;
Re Lloyd: The Trustees Executors and Agency Company limited v Zelman Memorial Symphony Orchestra Limited (1958) VR 523, discussed.
CHARITIES - CHARITABLE GIFTS AND TRUSTS - VALIDITY - INDEFINITE AND UNCERTAIN OBJECTS - TRUSTS INCLUDING CHARITABLE AND NON-CHARITABLE PURPOSES - If the main purpose of a trust is charitable and the non-charitable purposes are incidental, the trust is still charitable -deed must be read as a whole.
Trust Act 1973(Qld) s 103 and s 104, referred to.
Congregational Union of New South Wales v Thistlethwayte (1952) 87 CLR 375;
Keren…

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.

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Details

Case: [1999] QSC 200
Decision Date: 10 August 1999

CaseChat Overview and Summary

The case of Re Municipal Orchestra Endowment Fund involved an application by Perpetual Trustees Queensland Limited, the sole surviving trustee of the fund, seeking orders and declarations having the effect of applying the capital and income of the Queensland State and Municipal Orchestra Endowment Fund. The question arose whether the trust was charitable, a critical issue for the direction of the proceedings. The court examined the Deed of Declaration of Trust executed in 1924, which established the fund for the benefit of a public orchestra to be called the Queensland State and Municipal Orchestra and for the benefit of the library donated by George Sampson. The Deed outlined the purpose of the trust, which was to maintain and carry on the orchestra and pay its expenses. The court adopted a benevolent approach in construing the trust, accepting that the purpose of the trust was the advancement of education by imparting knowledge and appreciation of music to the general public. The court held that the trust was charitable, as the primary purpose was to raise the artistic taste and musical appreciation of the citizens of Brisbane, which fell within the spirit and intendment of the preamble to the Statute of Elizabeth. The court declared that the trust constituted by the Deed of Declaration of Trusts of 19 May 1924 constituted a valid charitable trust for the benefit of a public orchestra to be called the Queensland State and Municipal Orchestra.

Orders