RSL (NSW Branch) v AG; AG v RSL (NSW Branch) [2002] NSWSC 142

RSL (NSW Branch) v AG; AG v RSL (NSW Branch) [2002] NSWSC 142

Reading orders 4 and 5 together in the context of the whole orders and the background of the proceedings, order 4 was the dominant provision defining the source of costs as the capital and income comprising the charitable trusts, while order 5 was a mechanical provision for agreement or assessment and payment from the sale proceeds held aside as part of the charitable trust fund. The costs were therefore payable only from the charitable trust fund, not from the whole proceeds of sale.

Jurisdiction
Australia
Judgment Date
28 February 2002
Procedural Posture
Equity Proceedings Concerning Costs in Charitable Trust and Cy Pres Scheme Proceedings / Motions for Clarification of Costs Orders 4 and 5 Made on 22 May 2000 and an Alternative Motion to Set Aside Those Orders
Outcome
Orders 4 and 5 were construed as requiring payment of costs out of the charitable trust fund only; the RSL's motion was dismissed because the alternative relief was unnecessary.
Legal Topics
['costs Out of a Fund' 'construction of Consent Orders' 'charitable Trusts' 'cy Pres Schemes' 'parol Evidence Rule']
['procedure' 'costs' 'trusts and Charities'] ['costs Out of a Fund' 'construction of Consent Orders' 'charitable Trusts' 'cy Pres Schemes' 'parol Evidence Rule']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Costs in Charitable Trust and Cy Pres Scheme Proceedings / Motions for Clarification of Costs Orders 4 and 5 Made on 22 May 2000 and an Alternative Motion to Set Aside Those Orders

Legal Issues

  1. 1 ["Whether orders 4 and 5 made on 22 May 2000 required the parties' costs to be paid from the whole proceeds of sale of the Northcott Neurological Centre or only from the proceeds held on the charitable trust." 'Whether correspondence and negotiations between the parties could be used to construe the orders.' "Whether, if the Attorney General's construction were correct, the orders should be set aside and replaced."]

Ratio Decidendi

Reading orders 4 and 5 together in the context of the whole orders and the background of the proceedings, order 4 was the dominant provision defining the source of costs as the capital and income comprising the charitable trusts, while order 5 was a mechanical provision for agreement or assessment and payment from the sale proceeds held aside as part of the charitable trust fund. The costs were therefore payable only from the charitable trust fund, not from the whole proceeds of sale.

Court Disposition

Orders 4 and 5 were construed as requiring payment of costs out of the charitable trust fund only; the RSL's motion was dismissed because the alternative relief was unnecessary.

Orders

  • ['The costs to be dealt with under orders 4 and 5 include all costs of both parties of the proceedings up to the present time.' "The RSL's motion may be dismissed."]