Shire of Gingin v Attorney General (WA)
[2014] WASC 502
•22 DECEMBER 2014
SHIRE OF GINGIN -v- ATTORNEY GENERAL (WA) [2014] WASC 502
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 502 | |
| 22/12/2014 | |||
| Case No: | CIV:1721/2014 | ON THE PAPERS | |
| Coram: | MASTER SANDERSON | 11/12/14 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Trust varied | ||
| B | |||
| PDF Version |
| Parties: | SHIRE OF GINGIN ATTORNEY GENERAL (WA) |
Catchwords: | Charitable trust Variation to recognise changed circumstances Turns on own facts |
Legislation: | Charitable Trusts Act 1962 (WA) |
Case References: | Islamic Association of Wanneroo (Inc) v Al-Hidayah Mosque (Inc) [No 2] [2009] WASC 404 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
ATTORNEY GENERAL (WA)
Respondent
Catchwords:
Charitable trust - Variation to recognise changed circumstances - Turns on own facts
Legislation:
Charitable Trusts Act 1962 (WA)
Result:
Trust varied
Category: B
Representation:
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : McLeods Barristers & Solicitors
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Islamic Association of Wanneroo (Inc) v Al-Hidayah Mosque (Inc) [No 2] [2009] WASC 404
1 MASTER SANDERSON: By originating summons filed 27 May 2014 the applicant sought to vary a charitable trust. With consent of the parties, the hearing listed on 11 December 2014 was vacated, and I made orders in terms of the originating summons. I indicated I would publish reasons for my decision. These are those reasons.
2 The application is supported by two affidavits of Jeremy Lee Edwards the first sworn on 29 October 2013 the second sworn on 6 November 2013. There was a further affidavit of Linda Joanne Fidge sworn on 10 December 2014 filed by the applicant. This last affidavit established advertisement of the proceedings.
3 There was no opposition to this application. The respondent was under a duty as parens patriae to protect the property the subject of a charitable trust: see Islamic Association of Wanneroo (Inc) v Al-Hidayah Mosque (Inc) [No 2] [2009] WASC 404. The respondent filed no affidavit material but did make submissions in support of the application. No other party entered an appearance.
4 The applicant is trustee of the charitable trust for lot 60 Robinson Street, Gingin. The trust specified lot 60 was to be used as a medical centre. The circumstances in which this occurred are set out in pars 12 - 18 of Mr Edward's first affidavit. It is unnecessary to go through the circumstances in detail. Suffice it to say the charitable trust was established to facilitate a gift of lot 60 by Mr D G and Mrs O Barrett-Lennard. A medical centre was constructed on lot 60 and commenced operating in March 1980.
5 In 2004 a new medical centre was constructed in Gingin and the premises constructed on lot 60 were vacated. By that time loan funds which had been raised by the applicant to construct the medical centre on lot 60 had been repaid. After the premises were vacated they were demolished and a shed of no particular significance was erected on the site. It remains in place 10 years later.
6 In 1985 the applicant purchased lot 61 from Mr D G Barrett-Lennard. Lot 61 adjoins lot 60. The applicant now wishes to construct an aged persons facility covering both lots 60 and 61. By letter dated 6 November 2004 Mr Olive Barrett-Lennard indicated she had no difficulty with lot 60 being used for this purpose. But that could not be done unless and until the charitable trust was varied.
7 The jurisdiction of the court to make the orders sought in the originating summons is contained in s 15 of the Charitable Trusts Act 1962 (WA). That section is in the following terms:
15. Jurisdiction of Court in respect of schemes
Where application for approval of a scheme is made to the Court under this Part, the Court -
(a) may decide what persons shall be heard before it in support of, or in opposition to, the scheme; and
(b) has jurisdiction and authority to hear and determine all matters relating to the scheme; and
(c) may make an order approving the scheme with or without modification, as it thinks fit; and
(d) may, on the application of the trustees, from time to time, vary or modify the scheme.
9 Section 11 of the Act provides that before any application mentioned in s 10 is considered by the court notice shall be given once in the Government Gazette and once in a daily newspaper circulating in the State. These notices are to be given not more than three months and not less than one month before the proposed date for the consideration of the scheme by the court. Ms Fidge's affidavit establishes advertisements containing the required details set out in s 11(2) of the Act were published in the Government Gazette and the Weekend West Australian newspaper within the required time period. In all the circumstances it was clearly in everyone's best interests that the scheme be approved. In his affidavit Mr Edwards makes the point there is now no longer any need for a doctor's surgery on lot 60. But there is a real and pressing need for aged persons' accommodation in Gingin. Approval of the scheme would allow the construction of an appropriate facility on property presently being under utilised. In the absence of any opposition to the scheme it was clear orders in terms of the originating summons ought be made.
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