Trustees of the Daughters of Our Lady of the Sacred Heart v The Registrar-General
[2008] NTSC 13
•26 March 2008
Trustees of the Daughters of Our Lady of the Sacred Heart v The Registrar-General [2008] NTSC 13
PARTIES:TRUSTEES OF THE DAUGHTERS OF OUR LADY OF THE SACRED HEART
v
THE REGISTRAR-GENERAL
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 128 of 2007 (20731363)
DELIVERED: 26 March 2008
HEARING DATES: 8 February 2008
JUDGMENT OF: MILDREN J
CATCHWORDS:
TRUSTS – Trustee – Appointment – new trustee – trustees members of a religious congregation – trustees long deceased – expedient for Court to appoint trustee
TRUSTS – whether land registered in names of religious sisters of Catholic Church held upon trust – whether declaration of trust should be made
PRIVATE INTERNATIONAL LAW – corporation incorporated by special statute in New South Wales – corporation acts as trustee – land held in Northern Territory by sisters upon trust – whether held on trust for corporation – whether corporation can own land outside of NSW
EVIDENCE – sisters belonging to religious order bound by vows of poverty – whether admissible to prove land registered in names of sisters held upon trust for religious order – admissibility of canon law
Statutes:
Catholic Church in the Northern Territory Act (NT), s 3
Crown Lands Ordinance 1931
Land Title Act (NT)
Real Property Act and Ordinance 1886-1932
Registration Act (NT), s 5
Roman Catholic Church Communities’ Land Act 1942 (NSW), s 2, s 2(1), s 3, s 4, s 4(1)
Trustee Act (NT), s 11(1), s 27, s 27(1), s 28
References:
WJ Williams, Williams’ Law Relating to Wills, 5th edn, Vol 1, Butterworths, London, 1980
KS Jacobs, Jacobs’ Law of Trusts in Australia, 6th edn, Butterworths, Sydney, 1997
Citations:
Followed:
Re Roberts (1983) 20 NTR 13
Referred to:
Adams v National Bank of Greece SA [1961] AC 255
Holy Apostolic & Catholic Church of East (Assyrian) Australia New South Wales Parish Associationv Attorney-General (ex rel Elisha) & Ors (1990) 18 NSWLR 291
Kavir Pty Ltd v Dwyer [1973] Qd R 192
National Bank of Greece & Athens v Metliss [1958] AC 509
Re Transfer of Land Act [1916] VLR 397
Wylde v Attorney-General for New South Wales (at the relation of Ashelford & Ors) (1948) 78 CLR 224
REPRESENTATION:
Counsel:
Applicant:C McDonald QC and S Lee
Respondent: G MacDonald
Solicitors:
Applicant:Morgan Buckley Lawyers
Respondent: Solicitor for the Northern Territory
Judgment category classification: B
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINTrustees of the Daughters of Our Lady of the Sacred Heart v The Registrar-General [2008] NTSC 13
No. 128 of 2007 (20731363)
BETWEEN:
Trustees of the Daughters of Our Lady of the Sacred Heart
Applicant
AND:
The Registrar-General
Respondent
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 26 March 2008)
The applicant is incorporated pursuant to s 4 of the Roman Catholic Church Communities’ Land Act 1942 (NSW). The respondent is the Registrar-General for the Northern Territory appointed pursuant to s 5 of the Registration Act (NT) whose principle functions are to keep a register of land and carry out such other functions or duties and exercise such other powers as are required or authorised by the Land Title Act (NT).
There is situated on land known as Lot 55 Hartley Street, Alice Springs a convent used by the members of the Australian Province of the Congregation of the Daughters of Our Lady of the Sacred Heart. However, the land is not registered in the name of the Province or any other religious order or institution of the Catholic Church. It is presently registered in the names of Gertrude Henschke, Margaret Cass, Agnes Maxwell and Brigid Forrest of “Kensington, Sydney, New South Wales” as joint tenants. Each of these persons were formerly Sisters of the Province. They have all long since died.
The applicant seeks:
1. a declaration that the land is held on trust for it for the benefit of the Australian Province of the Congregation of the Daughters of Our Lady of the Sacred Heart;
2. an order pursuant to s 27 of the Trustee Act appointing the applicant as trustee of the trust so declared; and
3. an order pursuant to s 28 of the Trustee Act vesting the land in the new trustee.
The application originally sought an order directing the respondent to correct or amend the land register to record the applicant as registered proprietor of the land. This was not pursued at the hearing.
Facts
The religious order of the Daughters of Our Lady of the Sacred Heart (the Congregation) was originally founded in France on 30 August 1874. It is not clear from the evidence precisely when the Australian Province of the Congregation was first established in Australia. The earliest constitution of the Order which is in evidence before me is the 1928 Edition.
However, there is evidence from the Congregation’s Admission Register that each of the deceased Sisters entered the community before 1928. Mary Gertrude Henschke, known in religion as Sister Mary Concepta (Sr M Concepta), entered the community on 8 December 1917, was professed on 2 July 1919 and served as Provincial Superior between 1932-1959, except for the period November 1937 to October 1939. Sr M Concepta died intestate on 9 November 1963.
Margaret Cass, known in religion as Sister Mary Joseph (Sr M Joseph), entered the community on 25 March 1907 and was professed on 6 January 1909. Sr M Joseph was elected Provincial Superior and served in that capacity between November 1937 to September 1939. She was serving on the Council of the Province in December 1944. She died on 23 July 1974.
Agnes Maxwell, known in religion as Sister Mary Ursula (Sr M Ursula), entered the community on 30 December 1897 and was professed on 2 January 1900. She also served on the Council of the Province in December 1944. She died intestate on 14 March 1960.
Brigid Forrest, known in religion as Sister Mary Brendan (Sr M Brendan), entered the community on 15 March 1904 and was professed on 21 November 1905. As at December 1944 she was also a member of the Council of the Province. Sr M Brendan died intestate on 22 September 1960.
Under the provisions of the 1928 Constitution, all members were required to make vows of poverty, chastity and obedience. The evidence before me established that each of the deceased made the relevant vows at various times between 1911 and 1924. I have received expert evidence from Moya Hanlen, a Sister of the Order and Canonical Adviser to the Catholic Church in Australia, that by these vows each of the deceased accepted that, excluding personal patrimony, whatever is acquired by personal labour, pension, grant, or insurance (the title of which was acquired after first entering the Profession), or on behalf of the Province, is according to Canon Law and the Constitution of the Congregation, the property of the Province to be used for the common good. Patrimonial goods refers to personal property owned prior to Profession and goods that come to the Religious personally after Profession, by way of bequest. I accept that this evidence is admissible and that each of the deceased were bound by their vows and the rules of the Church governing them: Holy Apostolic & Catholic Church of East (Assyrian) Australia New South Wales Parish Associationv Attorney-General (ex rel Elisha) & Ors (1990) 18 NSWLR 291; Wylde v Attorney-General for New South Wales (at the relation of Ashelford & Ors) (1948) 78 CLR 224. This evidence supports the applicants’ contention that any property acquired by the deceased was intended by them to be held on trust for the Province.
Further, I accept the evidence of Moya Hanlen that under Canon Law, a Province is recognised as having separate legal personality as a “public juridical person” and as such has the right to acquire, administer and alienate property; and further that under Canon Law and the Constitution of 1928 (as well as the 1983 Constitution), the immediate government of a Province is entrusted to the Provincial Superior and her Council who represent and act in the name of the public juridical person of the Province. This evidence further supports the applicants’ contention for the existence of a trust.
The land was originally Town Lands Lease No 281 granted under the Crown Lands Ordinance 1931 and registered under the provisions of the Real Property Act and Ordinance 1886-1932 (the RPA). Prior to 1940, the registered proprietor of the leasehold estate was John William Walsh. On 3 July 1940 Walsh’s interest in the lease was transferred to Gertrude Henschke, Margaret Cass, Agnes Maxwell and Brigid Forrest, all of Sydney, Sisters of Our Lady of the Sacred Heart
On 15 December 1944, an application was made to the Administrator for a grant in fee simple over the land. The application was made by each of the deceased in this form:
“We Gertrude Henschke; Margaret Cass; Agnes Maxwell and Brigid Forrest, Sisters of Our Lady of the Sacred Heart of O.L.S.H. Convent Kensington N.S.W. Teachers the holder of Town Lands Lease 281… do hereby apply for a grant in fee simple of the whole of the lands included in the above recited lease.”
The application was approved by the Administrator on 11 January 1945 upon payment of the purchase price of one hundred pounds and subsequently by the Minister for the Interior. In consequence the Chief Clerk of the Lands and Survey Board wrote to “The Reverend Mother, Sacred Heart Convent, Alice Springs” by letter dated 5 April 1945 requesting payment of the one hundred pounds, plus one pound for the cost of preparation and registration of the title deed and also enclosing an instrument of surrender of the lease to be signed. Eventually, the money was paid, the surrender effected and the grant was made in the names of the deceased as joint tenants.
It is to be observed that in December 1944, Sr M Concepta was the Provincial Superior and each of the other sisters were members of the Provincial Council.
Further, by that time, the Roman Catholic Communities’ Lands Act 1942 (NSW) was in force. By s 2 of the Act, the Congregation of the Daughters of Our Lady of the Sacred Heart was a “community” as therein defined. Section 3 of the Act provided that “there shall be, for each community, trustees of community land, who shall be the provincial and community consultors of that community”. “Provincial” was defined by s 2(1) to mean “the person for the time being… acting as Provincial, Superior, Leader or President, as the case may be, of a community…” “Community consultors” was defined to include “the members for the time being of the governing council of a community constituted according to rules, practices and usages”. “Community land” was defined to mean:
“land situated in New South Wales for the time being subject to any trust created before or after the commencement of this Act for a community, or for the use or benefit or for any purpose of a community…”
Subsection 4(1) of the Act provided that the trustees of community land for each community shall, by virtue of the Act, be a body corporate etc and be “capable of acquiring, holding and disposing of any property, real or personal, and of suing and being sued in its corporate name and of doing and suffering all such acts and things as bodies corporate may by law do or suffer”.
The status of a body corporate established under the law of a State will be recognised in another jurisdiction: see National Bank of Greece & Athens v Metliss [1958] AC 509; Adams v National Bank of Greece SA [1961] AC 255. Consequently a corporation, which is established by the laws of New South Wales and, pursuant to the laws of which is capable of ‘acquiring, holding and disposing of any property, real or personal’, is capable of acquiring real or personal property within the Northern Territory: see Re Transfer of Land Act [1916] VLR 397; Kavir Pty Ltd v Dwyer [1973] Qd R 192.
I turn now to the will of Sr M Josepha (Margaret Mary Cass). Sr Josepha was the last surviving registered proprietor of the land. As the land was registered in the names of the Sisters as joint tenants, she became the sole legal owner of the land by survivorship. Under the terms of her will she bequeathed the whole of the real and personal property to the Mother Provincial for the time being of the religious community of women at Kensington known as “The Institute of the Sisters of Our Lady of the Sacred Heart” upon trust as to her real property… “in and of the General Fund of the said Institute…”. The terms of the will are not inconsistent with the applicants’ case. The executor named in the will is “the Mother Provincial for the time being of the community of Nuns known as “The Institute of the Sisters of Our Lady of the Sacred Heart”. I interpret this to mean the Mother Provincial living at the time of the deceased’s death. As Sr M Josepha died in 1974 it would be surprising if the then Mother Provincial is still alive. Even if that person had left a will, the evidence is that no probate of the will or of the will annexed of Sr M Josepha has been obtained. Consequently, the rule of devolution of the office of executor would not apply: see WJ Williams, Williams’ Law Relating to Wills, 5th edn, Vol 1, Butterworths, London, 1980, pp 158-159.
Is the application entitled to a declaration of trust?
So far as the land is concerned, the applicant is unable to provide evidence as to the source of funds for the payment of the one hundred and one pounds to convert the original lease. In 1945 that was a large sum of money. In view of the vows of poverty which each of the deceased had taken, it is extremely unlikely that they paid the money from personal patrimony. In view of their respective positions as Provincial Superior and members of the council, the fact that the Provincial Superior and the members of the Council were trustees of community land under the Roman Catholic Communities’ Lands Act 1942 and from all the circumstances, including the purposes for which the land was used, I infer that the money was paid by the applicant and that the deceased sisters were at all times acting as agents for and on behalf of the applicant in their capacity as trustees of community land. Thus in this case, there is no need to be concerned with whether or not a trust was created because the existence of the trust, the identity of the trust and the objects, purposes and powers of the trust are to be found in the statute. Therefore, the only question is whether the land is the property of the trust.
Further, on the facts I have found, there was clearly a fiduciary relationship between the deceased sisters and the applicant. Therefore, the equitable remedy of tracing the trust property may well be available. Alternatively, the facts establish a constructive trust in favour of the applicant on the basis that the deceased sisters were acting as fiduciary agents of the applicant at the time of the conversion of the lease into a freehold estate in 1944 and 1945: see KS Jacobs, Jacobs’ Law of Trusts in Australia, 6th edn, Butterworths, Sydney, 1997, paras [1321] and [1325] and cases therein cited. I therefore consider that the applicant is entitled to the declaration sought in the summons.
Should an order be made under s 27 of the Trustee Act?
Section 27(1) of the Trustee Act empowers the Court to appoint new Trustees wherever it is found inexpedient, difficult or impracticable to do so without the assistance of the Court.
In the circumstances of this case, I consider that it would be “expedient” to appoint a new Trustee and that it would be “inexpedient, difficult or impracticable” to appoint a new trustee without the Court’s assistance.
In Re Roberts (1983) 20 NTR 13 at 17-18 O’Leary J considered the circumstances in which it is “expedient” to appoint a new trustee. His Honour said:
““Expedient” here, I think, may be taken to mean “conducive to advantage in general, or to a definite purpose; fit, proper, or suitable to the circumstances of the case”: OED, vol III, v 426. In the context of appointing a new trustee in substitution for an existing one, I take it to mean then conducive to, or fit or proper or suitable having regard to, “the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee”: Miller v Cameron, [(1936) 54 CLR 572]. As was said in Re Tempest (1866) 1 Ch App 485 at 488 one of the questions to which the court will have regard in deciding whether or not to appoint a new trustee is whether the appointment “will promote or impede the execution of the trust, for the very purpose of the appointment is that the trust may be better carried into execution”.”
Clearly on the facts I have found the applicant is the proper trustee to be appointed and the applicant is best suited to promote the objects of the trust as it has been established for that purpose and has in fact been in possession and control of the property ever since 1945. The possible alternatives are Public Trustee or a property trust established by the Bishop of the Diocese under s 3 of the Catholic Church in the Northern Territory Act (NT). The evidence before me is that the Bishop has not made by-laws establishing such a trust in the Northern Territory at the request of the institution of the Australian Province of the congregation. I think the applicant is clearly the preferable body to be appointed trustee of the property,
I am also satisfied that it would be inexpedient, difficult or impracticable to appoint a new trustee without the assistance of the Court, having regard to all of the circumstances. Each of the Sisters has long passed away. The last surviving sister, Sr M Josepha died 34 years ago. Although she left a will, the person appointed as executor is probably no longer alive. Probate of the will has never been obtained. It would be a costly and slow process to obtain probate merely so that the executor and trustee of the will could appoint the applicant as the new trustee vide s 11(1) of the Trustee Act. In this case advertisements have been placed in the relevant newspapers with a view to seeing whether there are any possible claimants to her estate, without result.
There will accordingly be an order appointing the applicant as trustee of the property so declared. In those circumstances it is appropriate to make an order pursuant to s 28 of the Trustee Act vesting the property in the applicant as trustee for the community of the Daughters of Our Lady of the Sacred Heart.
There will be no order as to costs.
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