Rowe v Attorney General of New South Wales

[2012] NSWSC 371

Supreme Court

New South Wales

Case Title:	Rowe v Attorney General of New South Wales
Medium Neutral Citation:	[2012] NSWSC 371
Hearing Date(s):	11 April 2012
Decision Date:	11 April 2012
Jurisdiction:	Equity Division
Before:	Gzell J
Decision:	Order that original trusts be administered in accordance with the rules.
Catchwords:	TRUSTS - Charitable Trusts - administrative schemes - Charitable Trusts Act 1993, s 12(1)(b), s 14(1)(a) - inherent jurisdiction - proposed rules for administration of trusts - no departure from the original trusts
Legislation Cited:	Charitable Trusts Act 1993
Cases Cited:	Corish v Attorney-Generals Department of NSW [2006] NSWSC 1219 College of Law Pty Ltd v Attorney General of NSW [2009] NSWSC 1474
Texts Cited:
Category:	Principal judgment
Parties:	Donald Edward John Rowe (First Plaintiff) Roderick David White (Second Plaintiff) Christopher Paul Perrin (Third Plaintiff) Attorney General of New South Wales (Defendant)
Representation
- Counsel:	Counsel: Nicholas Kidd (Plaintiffs) Henry El-Hage (Defendant)
- Solicitors:	Solicitors: Resolve Litigation Lawyers (Plaintiffs) Crown Solicitors Office (Defendant)
File number(s):	SC 2012/83785
Publication Restriction:

EX TEMPORE JUDGMENT

1. I have before me a summons seeking orders in relation to the administration of a charitable trust.

1. The Charitable Trusts Act 1993, s 6(1) provides that charitable trust proceedings are not to be commenced in the court unless the Attorney General has authorised the bringing of the proceedings, or leave to bring the proceedings is obtained from the court.

1. The Attorney General has authorised the bringing of the proceedings and is a party to them.

1. Section 12(1)(b) of the Act provides that the Attorney General may by order establish a scheme for the administration of any charitable trust. In particular, the Attorney General may by such an order establish a scheme to extend or vary the powers of trustees of a charitable trust or prescribe or vary the manner or mode of administration of any charitable trust, either generally or in a particular case, if it appears to the Attorney General that it is expedient to do so in the interests of the administration of the charitable trust.

1. However, s 14(1)(a) (which is in the same Part 4 of the Act as is s 12) provides that the Attorney General is not to establish a scheme under that Part if the value of the trust property affected by the scheme exceeds $500,000 or, if another amount is prescribed by the regulations, that other amount.

1. I am informed by counsel for both parties that the value of the trust property on any basis exceeds $500,000 and that evidence to establish that fact was provided to the Attorney General and accepted by him.

1. That means that the application is brought under the inherent jurisdiction of the court to administer trusts.

1. In Corish v Attorney-General's Department of NSW [2006] NSWSC 1219 Campbell J had before him an application to settle an administrative scheme relating to a charitable trust. His Honour said at [9]:

"There is a clear conceptual difference between a cy près scheme and an administrative scheme for a charitable trust. It is the difference between ends and means. A cy près scheme can be directed when it is impossible or impractical to carry out the objects of the trust in all the details the settlor stipulated. An administrative scheme supplements and/or clarifies any provisions the settlor has stipulated concerning the manner in which the objects of the trust are to be pursued, when practical circumstances show that the settlor's stipulation (if any) of the means is inadequate or impractical."

1. See also College of Law Pty Ltd v Attorney General of NSW [2009] NSWSC 1474 at [7].

1. The RSL Welfare and Benevolent Fund was established under a single page document in March 1964. The document is the creation of a charitable trust but with scant administrative provisions.

1. The summons seeks an order that it be administered in accordance with an administrative scheme set out in the document entitled RSL Welfare & Benevolent Institution Administrative Rules, a copy of which document is annexed to the summons.

1. Those rules restate the terms of the trust and, without derogating from them, go on to provide administrative procedures by which those trusts may be perfected.

1. In none of the rules is there any departure from the trust set up in the original document.

1. This seems to me to be a situation par excellence in which the inherent power of the court ought to be exercised.

1. I make an order in terms of paragraph 1 of the summons and in terms of paragraph 2, which provides that the costs of the proceedings be paid out of the funds of the trust.

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