The matters of Girgenti

[2023] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

The matters of Girgenti [2023] QSC 170

PARTIES:

ANNA MARIA KELSEY

(first applicant)
CARMEN ELIZABETH OSWIN
(second applicant)
BRUNO ZATTA
(third applicant)

FILE NO/S:

217 of 2023

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED ON:

Delivered ex tempore on 5 May 2023

DELIVERED AT:

Cairns

HEARING DATE:

5 May 2023

JUDGE:

Henry J

ORDER:

1. Pursuant to Section 96 of the Trusts Act 1973 (Qld), it is directed that the Francesco Applicants would be justified in distributing the estate of the late Francesco Giovanni Girgenti pursuant to his last will made on 13 July 2016 (the “Francesco Will”) on the bases that:

a.   The gift in Clause 8.2(ii) of the Francesco Will to THE CORPORATION OF THE ORDER OF THE CANOSSIAN SISTERS to be contributed to CANOSSA HOME FOR THE AGED at 9 Stone River Road, Trebonne in the State of Queensland to be applied for and toward the buildings of the said home and its charitable services be read and construed as a gift to Ozcare Limited to be contributed to Ozcare Magdalene Villa Aged Care Facility at 9 Stone River Road, Trebonne in the State of Queensland to be applied for and toward the buildings of the said home and its charitable services; and

b.   The gift in Clause 8.2(ix) of the Francesco Will to THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) for the general purposes of BLUE CARE INGHAM be read and construed as a gift to The Uniting Church in Australia Property Trust (Q) for the general charitable purposes of Blue Care as it operates in the Ingham region.

2. Pursuant to Section 96 of the Trusts Act 1973 (Qld), it is directed that the Catherine Applicants would be justified in distributing the estate of the late Catherine Mary Girgenti pursuant to her last will made on 31 May 2012 (the “Catherine Will”) on the bases that:

a.   The gift in Clause 4.2(xi)(a) of the Catherine Will to THE CANOSSA HOME FOR THE AGED at 9 Stone River Road, Trebonne Queensland to be applied for and toward the buildings of the said home and its charitable services be read and construed as a gift to Ozcare Limited to be contributed to Ozcare Magdalene Villa Aged Care Facility at 9 Stone River Road, Trebonne in the State of Queensland to be applied for and toward the buildings of the said home and its charitable services; and

b.   The gift in Clause 4.2(xi)(h) of the Catherine Will to THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) for the general purposes of BLUE CARE INGHAM be read and construed as a gift to The Uniting Church in Australia Property Trust (Q) for the general charitable purposes of Blue Care as it operates in the Ingham region.

3.   That the Applicants’ indemnity basis costs of and incidental to this application be paid in equal shares from the estates of Francesco Giovanni Girgenti and Catherine Mary Girgenti.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where the applicant executors apply under s 96 Trusts Act 1973 for the Court’s directions as to the bases upon which they ought construe some gifts under the wills due to changes in legal status – whether the threshold requirement of a written statement of facts under the section has been complied with – whether affidavit material filed and read accompanying the application adequately provide the Court with the facts upon which the Court can give directions.
Trust Act 1973 (Qld) s 96
Nofz, as the Executor of the Estate of Henry Matthew Fitzgerald (deceased) v Kane & Ors [2015] QSC 372
The Public Trustee of Queensland as Executor of the Estate of Mary Agnes Ball, Deceased v State of Queensland and Ors [2009] QSC 174

COUNSEL:

D Topp for the applicants

SOLICITORS:

Keir Steele Waldon Lawyers for the applicants

1. HENRY J:   Francesco and Catherine Girgenti, a long-married couple who loved and lived in the Ingham region, died within about a year of each other.  Their wills, each executed in mid-2016, bequeathed parts of their estates to charitable entities for various charitable purposes in their region.  An issue has arisen in respect of how their executors, the applicants, should construe some of those gifts because of changes to the legal status of some of those entities subsequent to the making of the wills.  I infer the changes were not realised in circumstances that would have allowed amendment or alternatively had not occurred by the time of death, as the case may be. 

2. Directions are sought from the Court pursuant to s 96 Trust Act 1973 (Qld) that the wording of those gifts should be construed as being to the current legal forms of the former entities for the same localised charitable purposes. An application pursuant to s 96 requires that the relevant trustee apply upon a written statement of facts. There is no document filed in this application styled as a written statement of facts; however, the joint affidavit of the applicants substantially explains all of the relevant facts. To the extent that it does not, the affidavits of Puneet Melvin of Auscare and Peter Cranna of the Uniting Church in Australia Property Trust do. I will collectively regard those affidavits as the requisite written statement.

3. Turning to the entities in question.  The first is the entity running the home for the aged located at 9 Stone River Road, Trebonne, which is in the Ingham district.  The relevant text of Francesco’s gift to it was: 

   “I give the sum of $50,000 ($50,000) free of all duties and charges to the corporation of the Order of the Canossian Sisters to be contributed to Canossa, Home for the Aged at 9 Stone River Road, Trebonne, in the State of Queensland to be applied for and toward the buildings of the said home and its charitable services.  I direct that the receipt of the financial offers for the time being will be a sufficient discharge to my trustee.  They shall not be obliged to see to the application thereof.” 

4. Catherine’s relevant text was: 

   “A one-eighth share of all duties and charges to Canossa Home for the Aged of 9 Stone River Road, Trebonne, Queensland to be applied for and toward the buildings of the said home and its charitable services.  I direct that the receipt of the financial offers for the time being will be a sufficient discharge to my trustee who shall not be obliged to see to the application thereof.” 

5. Mr Melvin deposes to the fact that the Canossa Home for the Aged of which those gifts speak was acquired by Auscare on the 1^st of December 2020 from its then owner, the Corporation of the Order of the Canossian, Sisters.  Mr Melvin deposes on behalf of Auscare that the gift in question would be solely devoted to both the building infrastructure at the facility and the services the facility provides to and for the benefit of the facility’s residents.

6. His affidavit notes that the ABN for the Corporation of the Order of the Canossian Sisters (Trading name Cassonia Home Trebonne) was cancelled on about 23 June 2022.  Auscare is an Australian public company limited by guarantee with a registered office located in Kangaroo Point.  It is - I take judicial notice - well known that Auscare operates many other facilities than the aged care home at 9 Stone River Road, Trebonne.  It remains, though, that it is clearly the apt legal entity to receive the gift.  That is because the gift was to a localised charitable purpose continued by the new owning legal entity, Auscare.  It is the entity, not the purpose, which has changed. 

7. There therefore appears to be no need for cy-pres scheme.  Such a scheme might apply where there is a gift or trust for a charity which can be substantially but not literally fulfilled so that it might be effectuated by moulding the text of the gift so that it nearly as is practicable meets the intention of the benefactor.  No such moulding is required here because of the clear continuity of the charitable purpose.  All that is necessary is for the gift to be paid to the entity which now continues the same charitable purpose identified in the will, for use for that purpose – see The Public Trustee of Queensland as Executor of the Estate of Mary Agnes Ball, Deceased v State of Queensland and Ors [2009] QSC 174; Nofz, as the Executor of the Estate of Henry Matthew Fitzgerald (deceased) v Kane & Ors [2015] QSC 372.

8. It is accordingly uncontroversial that I should direct under s 96 that it is appropriate for the applicants to distribute in respect of the gifts connected with the institution just discussed, as if they are gifts to Auscare Limited to be contributed to Auscare Magdalene Villa Aged Care Facility, as it is presently named, at 9 Stone River Road, Trebonne in the State of Queensland to be applied for and towards the buildings in the said home and its charitable services.

9. Turning to the second entity in question, the circumstances are subtly different in that the entity named was not of itself a separate legal entity at all and rather an operational entity known as Blue Care.  It is owned and operated by the Uniting Church in Australia Property Trust (Q).  Mr Cranna of that entity deposes to those facts and confirms that Blue Care provides services, primarily to aged persons and that includes in the town of Ingham and its surrounding suburbs and other associated localities, and what is more, that a gift to them in the context of the present wills would be solely devoted to Blue Care’s charitable purposes in that region. 

10. Once again, the purpose of the gift remains unchanged.  In the text making its reference to Blue Care Ingham, it is self-evident that even if that was not the correctly named legal entity, it was a reference to the legal entity which conducted the operations of Blue Care Ingham and appears to still do so, namely, the Uniting Church in Australia Property Trust (Q).  Against that factual background, which is not in respect of a successor institution but rather an inelegantly named entity, the correct identification of which is not in material issue, it again appears that all that is necessary is for the gift to be paid to the known correct legal entity, which of course still continues the same charitable purpose identified in the will. 

11. It follows that it is appropriate to direct that the applicants would be justified in distributing the relevant gift as if the relevant text thereof is to be construed as a gift to the Uniting Church in Australia Property Trust (Q) for the general charitable purposes of Blue Care as it operates in the Ingham region. 

12. In the present circumstances, it is uncontroversial that the applicants’ costs should be on the indemnity basis and be paid in equal shares from each estate.  The proposed draft order reflects these various findings.  I order as per the draft order signed by me and placed with the papers.