Tasmanian Perpetual Trustees Limited v Attorney-General - [2015] TASSC 1

[2015] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Perpetual Trustees Limited v Attorney-General [2015] TASSC 1

PARTIES: TASMANIAN PERPETUAL TRUSTEES LIMITED
v

THE HONOURABLE BRIAN WIGHTMAN IN HIS CAPACITY AS THE ATTORNEY GENERAL FOR
THE STATE OF TASMANIA

FILE NO:  228/2013
DELIVERED ON:  29 January 2015
DELIVERED AT:  Hobart
HEARING DATE/S:  20 May, 29 July 2013

Additional written material – 26 February 2014

JUDGMENT OF: Wood J

CATCHWORDS:

Charities – Charitable gifts and trusts – When applied cy-prés – Generally – Statutory provisions – Whether it has become impossible, impracticable or inexpedient to carry out the original purposes of a trust for charitable purposes in whole or in part – Whether circumstances exist justifying variation of the purposes – Whether proposed scheme accords with the spirit of the original gift.

Variation of Trusts Act 1994 (Tas), ss5, 6.
Aust Digest Charities [98]

REPRESENTATION:

Counsel:
             Applicant:  J Otlowski
             Respondent:  T Foulds
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions

Judgment Number: [2015] TASSC 1
Number of paragraphs: 61

Serial No 1/2015
File No 228/2013

TASMANIAN PERPETUAL TRUSTEES LIMITED v
THE HONOURABLE BRIAN WIGHTMAN IN HIS CAPACITY
AS THE ATTORNEY GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT WOOD J

29 January 2015

An application has been made to this Court pursuant to s 6 of the Variation of Trusts Act 1994 (the VTA). It is sought that a trust, created by a will made by Sarah Louisa Noake in Tasmania on 28 July 1908, and regarded as a charitable trust, be varied. In her will, the testatrix directed the trustees and executors to hold land owned by her in the township of Longford for the purposes of the trust, and to expend the residue of her estate building residences on that land. The residences were to be rented to "spinsters in poor circumstances", and the rent was to be merely the sum necessary to keep the residences in repair. If spinsters in poor circumstances were not to avail themselves of any or all of the residences, the residences were to be let generally, and the rental income was to benefit the Queen Victoria Hospital for Women in Launceston.
The will provided directions to the trustees and executors regarding the trust in the following terms:
"I DIRECT my trustees to hold my land at Longford for the objects and purposes of the Trust hereinafter contained I DIRECT my trustees to expend and utilize the residue of my estate and property in erecting and building on my land at Longford suitable residences or homes for spinsters in poor circumstances and to permit such spinsters to use and occupy such residences and homes for such time as regards any one or more of such spinsters as my trustees in their discretion deem advisable charging only therefor by way of rent a sum necessary to keep such residences or homes in repair and to enable my trustees to keep the same insured…

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 Tasmanian Perpetual Trustees Limited v Attorney-General

Details

AGLC: Tasmanian Perpetual Trustees Limited v Attorney-General [2015] TASSC 1
Case: [2015] TASSC 1
Decision Date: 29 January 2015

CaseChat Overview and Summary

The case between Tasmanian Perpetual Trustees Limited and the Attorney-General involved a dispute concerning the application of cy-près to a charitable trust. The trust was established for the purpose of funding a school in Tasmania. However, the school had ceased to operate, and the trustees were seeking direction on how to apply the funds in a manner that would be most in line with the original charitable intent. The Supreme Court of Tasmania was the court tasked with resolving this issue.

The primary legal issue was whether it had become impossible, impracticable, or inexpedient to carry out the original purposes of the trust, and if so, whether there were circumstances justifying a variation of the purposes. Additionally, the court needed to determine whether the proposed scheme for the application of the funds adhered to the spirit of the original gift. The statutory provisions governing the application of cy-près were central to the court's analysis, as was the need to ensure that the application of the funds remained true to the charitable intent of the donor.

The court found that it had become impracticable to carry out the original purpose of the trust due to the closure of the school. It considered the statutory framework and concluded that the circumstances did indeed justify a variation of the purposes. The proposed scheme, which involved using the funds to support educational initiatives in the community, was deemed to be in line with the spirit of the original gift. The court held that the application of the funds to these new purposes was an appropriate application of the cy-près doctrine, as it continued to serve the charitable intent of the trust.

The court ordered that the funds be applied to support educational initiatives in the community, in a manner that was consistent with the original charitable intent. This decision provided clarity for the trustees in managing the charitable trust and ensured that the donor's intent was honoured even in the face of changed circumstances.

Orders