Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) RNTBC v Martu People Limited as trustee for the Martu Charitable Trust
[2014] WASC 417
•10 NOVEMBER 2014
WESTERN DESERT LANDS ABORIGINAL CORPORATION (JAMUKURNU-YAPALIKUNU) RNTBC -v- MARTU PEOPLE LIMITED AS TRUSTEE FOR THE MARTU CHARITABLE TRUST [2014] WASC 417
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 417 | |
| Case No: | CIV:2534/2014 | 7 NOVEMBER 2014 | |
| Coram: | LE MIERE J | 10/11/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | WESTERN DESERT LANDS ABORIGINAL CORPORATION (JAMUKURNU-YAPALIKUNU) RNTBC MARTU PEOPLE LIMITED AS TRUSTEE FOR THE MARTU CHARITABLE TRUST ATTORNEY GENERAL OF WESTERN AUSTRALIA |
Catchwords: | Application for injunction to restrain first defendant from winding up trusts or distributing surplus trust assets No prima facie case Plaintiff not entitled to final relief |
Legislation: | Charitable Trusts Act 1962 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARTU PEOPLE LIMITED AS TRUSTEE FOR THE MARTU CHARITABLE TRUST
First Defendant
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Application for injunction to restrain first defendant from winding up trusts or distributing surplus trust assets - No prima facie case - Plaintiff not entitled to final relief
Legislation:
Charitable Trusts Act 1962 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr M D Howard SC & Mr T J Poli
First Defendant : Mr M D Reid
Second Defendant : Ms M J Elliott
Solicitors:
Plaintiff : Norton & Smailes
First Defendant : Jackson McDonald
Second Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
1 LE MIERE J: In its notice of originating motion the plaintiff seeks an injunction restraining the first defendant until further order from passing any resolutions resolving to:
(a) wind up the Martu Charitable Trust;
(b) wind up the Martu Direct Benefits Trust;
(c) distribute any of the surplus assets of the Martu Charitable Trust; and
(d) distribute any of the surplus assets of the Martu Direct Benefits Trust.
The plaintiff does not press the relief sought in relation to the Martu Direct Benefits Trust.
Grounds of application
2 In its notice of originating motion the plaintiff advanced two grounds for its application. First, the plaintiff claimed that the first defendant, as trustee of the Martu Charitable Trust, intends to wind up the trust and distribute its surplus assets otherwise than in accordance with the procedure provided in pt III of the Charitable Trusts Act 1962 (WA). Secondly, the plaintiff claims that the first defendant intends to wind up the Western Desert Lands Aboriginal Corporation (WDLAC) Kintyre Sub Fund, a sub fund of the Martu Charitable Trust, without the consent of the plaintiff contrary to the terms of the trust deed for the Martu Charitable Trust. On the hearing of its application the plaintiff did not press the ground based on the Charitable Trusts Act but advanced a further ground. That ground is that on winding up the Martu Charitable Trust the plaintiff intends to distribute part of the surplus assets of the Trust to Kalyuku Ninti - Puntuku Ngurra Limited, which I will refer to as KJ, contrary to the terms of the Martu Charitable Trust deed.
Winding up clause of trust deed
3 The plaintiff's case turns on cl 21.6.7 of the Martu Charitable Trust Deed. The first recital to the deed refers to the Native Title Determination by Consent with respect to the traditional lands of the Martu People by the Federal Court on 22 September 2002. The second recital states that the Martu Beneficiary Group want to create a trust to be known as the Martu Charitable Trust for the promotion of the Charitable Purposes. The Martu Beneficiary Group means the Martu persons whose names appear on the Martu Beneficiary Register. The Charitable Purposes are set out in a schedule to the deed. They include the usual charitable purposes and other purposes beneficial to the community including the promotion and advancement of Aboriginal law and culture. Recital E states that the trust has been created for the purpose of benefiting the Martu Beneficiary Group in the manner set out and is established for charitable purposes only.
4 Clause 21.6.7 of the deed is concerned with winding up the Trust. It is in the following terms:
(a) The Trustee may only wind up the Trust with the prior written consent of the Martu Beneficiary Group, and any Contributor if required by the relevant Sub Fund Agreement.
(b) The Trustee may only wind up a Sub Fund with the prior written consent of the Contributor with respect to that Sub Fund.
(c) If, on the winding up of the Trust, any property remains after the satisfaction of all the Trust's debts and liabilities, the Trustee must give and transfer the property to or for one or more funds, authorities or institutions which are charitable at law and established for similar objects to the Trust Objects for the benefit of the Beneficiaries as the Trustee decides.
First ground
5 The plaintiff says that on the proper construction of cl 21.6.7 (a) and (b) the first defendant is required to obtain the plaintiff's consent to wind up the Trust. That is because the decision of the first defendant to wind up the Trust necessarily causes the WDLAC Kintyre Sub Fund to be wound up and cl 21.6.7 (b) requires the prior written consent of the Contributor before the trustee may wind up a Sub Fund. A Contributor is a person, organisation or trustee of other trusts, who transfers any money, investments or other assets to the Trustee which established a Sub Fund in accordance with ch 4 of the Trust Deed. It is common ground that the plaintiff is the Contributor with respect to the WDLAC Kintyre Sub Fund which is a sub fund of the Trust.
6 In my view cl 21.6.7(a) and (b) are directed to different subject matters. Paragraph (a) is directed to when the consent of a Contributor is required to wind up the Trust. Paragraph (b) is directed to when the consent of a Contributor is required to wind up a Sub Fund when the Trust is not being wound up. The winding up of the Trust necessarily involves the termination of the Sub Fund but that is not what (b) is directed to. Paragraph (b) is directed to when a Sub Fund is wound up without the Trust being wound up. The construction advanced by the plaintiff is contrary to the plain words of (a) which provides that the consent of a Contributor to the winding up of the Trust is necessary if required by the relevant Sub Fund Agreement and implicitly is not necessary if not required by the relevant Fund Agreement. The relevant Sub Fund Agreement does not provide that the consent of the plaintiff is required for the winding up of the Trust. The plaintiff's argument that its consent is required to the winding up of the Trust is not sufficiently arguable to give rise to a prima facie case.
Alternative ground
7 The plaintiff's alternative argument is that the first defendant intends to distribute part of the surplus Trust assets to KJ and KJ does not meet the requirements of cl 21.6.7 (c). In the course of argument senior counsel for the plaintiff submitted that the first defendant intends to distribute assets to Perpetual Trustees on trust for KJ. That assertion is based on a statement by the first defendant's solicitors in a letter of 4 August 2014 to the plaintiff's solicitors. However, in a position paper forwarded to the plaintiff's solicitors under cover of a letter dated 24 October 2014 the first defendant's solicitors stated that the first defendant has decided to wind up the Trust and transfer the remaining assets to Martu United as trustee of the Desert Charitable Trust and to KJ. In submissions in reply junior counsel for the plaintiff accepted that the first defendant intends to distribute property relevantly to KJ and not to Perpetual Trustees on trust for KJ. In any event I am not satisfied that it would be a breach of cl 21.6.7(c) for the first defendant to transfer surplus property to a trustee on behalf of a fund, authority or institution which meets the requirements of (c). That is because (c) provides that the trustee must give and transfer the property to or for such a fund, authority or institution.
8 The plaintiff says that KJ is not a fund, authority or institution which falls within cl 21.6.7(c), that is KJ is not a fund, authority or institution which is charitable at law and established for similar objects to the Trust Objects for the benefit of the Beneficiaries. The plaintiff accepts that KJ is an organisation which is 'charitable at law' but says that it does not meet the requirement or requirements of being 'established for similar objects to the Trust Objects for the benefit of the Beneficiaries'. In my opinion the words 'established for similar objects to the Trust Objects for the benefit of the Beneficiaries' is a single composite requirement not a requirement that the organisation be established for similar objects to the Trust Objects and a further requirement that the property be given or transferred 'for the benefit of the Beneficiaries'. That conclusion is mandated by the syntax and sense of the paragraph.
9 The plaintiff pointed to differences between the Trust Objects in cl 2.3 of the Trust Deed and the objects of KJ in cl 2.1 of the Constitution of KJ. In particular, senior counsel submitted that the Trust Objects are for the benefit of the Beneficiaries who are persons of aboriginal descent having a connection with or living in the Region and other people connected were associated with them. On the other hand the objects of KJ are to benefit Aboriginal people especially the Common Law Holders. There is little or no evidence to identify the Aboriginal people with a connection with or living in the Region or to distinguish them from the Common Law Holders. Senior counsel for the plaintiff accepted that the two descriptions broadly cover the same people. In any event the onus is on the plaintiff to prove that the objects of KJ are not similar to the Trust Objects and to the extent that that requires proving that persons with a connection with or living in the Region are different from the Common Law Holders, there is no or sufficient evidence of that.
10 The plaintiff's principal attack was that the relevant objects of KJ are to benefit 'Aboriginal people, especially the Common Law Holders' not only the Common Law Holders. I do not think that gives rise to a prima facie case. Clause 21.6.7(c) requires that the objects of the receiving organisation be similar to the Trust Objects for the benefit of the Beneficiaries, not that they be the same. In my opinion a comparison of the Martu Charitable Trust Deed with the KJ Constitution, in the absence of any evidence distinguishing people with a connection with or living in the Region from the Common Law Holders, fails to raise a prima facie case that the objects of KJ are not similar to the Trust Objects for the benefit of the Beneficiaries.
Conclusion
11 The plaintiff has not made out a prima facie case that it is entitled to any final relief. It is not necessary to consider the balance of convenience or the adequacy of the remedy of damages. The plaintiff's application will be dismissed.
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