State Trustees Ltd v Attorney-General (Vic) - [2013] VSC 117

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. 5536 of 2012

STATE TRUSTEES LTD (ACN 064 593 148)	Plaintiff
v
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2013
DATE OF JUDGMENT:	22 March 2013
CASE MAY BE CITED AS:	Re Salvana; State Trustees Ltd v Attorney-General (Vic)
MEDIUM NEUTRAL CITATION:	[2020] VSC 117

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CHARITABLE TRUST — Gift for preservation and conservation of native Australian flora and fauna — Trust for ‘advancement of education’ — Trust for purposes ‘beneficial to the community’ — Statute of Charitable Uses 1601, 43 Eliz 1, c 4, Preamble

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Marantelli	State Trustees Ltd, Legal Branch
For the Defendant	Mr R. McInnes, solicitor	Victorian Government Solicitor’s Office

HER HONOUR:

Background

Victor Enrico Salvana (‘the deceased’) died on 15 December 1982, leaving a will dated 22 May 1969. Probate of his will (‘the will’) was granted to State Trustees Limited (‘STL’) on 19 August 1983.

By cl 4 of his will, the deceased left the residue of his estate on trust as follows:

a)   to his sister, Alma, a life interest in what had been the deceased’s home at 9 Springvale Road, Nunawading;
b)     to Alma and his brother, Louis, a life interest in the net income from the balance of the residuary estate;
c)   upon the death of the survivor of Alma and Louis, the net income to his nephew, John, and his niece, Rita, for not more than 15 years from the death of the survivor of Alma and Louis; and
d)     upon the expiration of the 15 years:
UPON TRUST to provide for the purchase or provision of an area of land in the Otway Ranges or the district known as the Little Desert or such similar area as my Trustee may deem appropriate to be used as a park or reservation or sanctuary for the purpose of the preservation and conservation of native Australian flora and fauna.

The deceased was survived by his sister, Alma, his nephew, John, and his niece, Rita. His brother, Louis, predeceased the deceased on 8 December 1974.

John died on 27 January 1987, Rita died on 21 July 1990 and Alma died on 28 August 2009, aged 102 years. The effect of this order of deaths in the family was that the gifts to John and Rita never took effect.

As at 12 February 2013, the residue of the estate comprised $948 687.67.

The Trustee’s Application

STL makes an application pursuant to rr 54.02(2)(a)(i) and (c)(i) of the Supreme Court (General Civil Procedure) Rules 2005, seeking:

a) a declaration that the gift of the residue ‘for the purchase or provision of an area of land … to be used as a park or reservation or sanctuary’, referred to in cl 4(b) of the deceased’s will, is a gift for charitable purposes; and
b) an order that…

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: [2013] VSC 117
Decision Date: 22 March 2013

CaseChat Overview and Summary

The parties in this case were State Trustees Limited and the Attorney-General of Victoria. The dispute centred around whether a trust established for the preservation and conservation of native Australian flora and fauna constituted a charitable trust under the law. The matter was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the trust in question, which aimed to preserve and conserve native Australian flora and fauna, qualified as a charitable trust. Specifically, the court needed to determine if this purpose aligned with the traditional categories of charitable trusts, such as the advancement of education or purposes beneficial to the community, as outlined in the Statute of Charitable Uses 1601.

The court examined the historical context and modern interpretations of charitable trusts, considering both the literal wording of the Statute of Charitable Uses and contemporary legal principles. The court found that while preservation and conservation efforts could be beneficial to the community, they did not neatly fit into the traditional categories of charitable purposes. The court concluded that for a trust to be charitable, it must benefit the public in a manner that aligns with the established categories of charity law. In this instance, the court held that the trust for the preservation and conservation of native Australian flora and fauna did not constitute a charitable trust as it did not fall within the recognised categories of charitable purposes.

Consequently, the court ruled in favour of the Attorney-General, finding that the trust did not qualify as a charitable trust. The final orders of the court confirmed that the trust was not charitable and directed State Trustees Limited to account for the trust property in accordance with the court's decision. This ruling clarified the boundaries of charitable trusts and reinforced the importance of aligning charitable purposes with established legal categories.

Orders