Northern Sydney and Central Coast Area Health Service & anor v The Attorney-General for New South Wales & anor [2007] NSWSC 881

Northern Sydney and Central Coast Area Health Service & anor v The Attorney-General for New South Wales & anor [2007] NSWSC 881

The present use of Graythwaite as a long-term aged care facility, including dementia care, was not use as a convalescent home because convalescence meant recovery or regaining health and strength after illness, whereas the patients were long-term aged care patients with no prospect of recovery to independent life. No party suggested that Graythwaite could be used as a convalescent home in that sense, and the original purposes had ceased to be a suitable method of using the trust property having regard to the spirit of the trust. The trust purposes had therefore failed and the trust property was to be applied cy-prés by a scheme to be settled.

Jurisdiction
Australia
Judgment Date
14 August 2007
Procedural Posture
Charitable Trust Proceedings Under the Charitable Trusts Act 1993 Seeking a Cy Prés Scheme / First Stage Hearing to Determine Whether the Charitable Trust Purposes Had Failed
Outcome
Declaration that the trust purposes had failed; trust property ordered to be applied cy-prés and a scheme to be settled.
Legal Topics
['cy Prés' 'failure of Charitable Purposes' 'construction of Charitable Trust Instrument' 'convalescent Home' 'distressed Subjects']
['trusts and Trustees' 'charitable Trusts'] ['cy Prés' 'failure of Charitable Purposes' 'construction of Charitable Trust Instrument' 'convalescent Home' 'distressed Subjects']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Charitable Trust Proceedings Under the Charitable Trusts Act 1993 Seeking a Cy Prés Scheme / First Stage Hearing to Determine Whether the Charitable Trust Purposes Had Failed

Legal Issues

  1. 1 ['Whether the present use of Graythwaite primarily as an aged care facility fell within the trust purposes.' 'Whether, if aged care use fell within the trust purposes, that activity could continue to be carried on at Graythwaite or was impossible to carry on.' 'Whether Graythwaite could be used as a convalescent home within the meaning of the trust.' 'Whether the trust property should be applied cy-prés and a scheme settled.']

Ratio Decidendi

The present use of Graythwaite as a long-term aged care facility, including dementia care, was not use as a convalescent home because convalescence meant recovery or regaining health and strength after illness, whereas the patients were long-term aged care patients with no prospect of recovery to independent life. No party suggested that Graythwaite could be used as a convalescent home in that sense, and the original purposes had ceased to be a suitable method of using the trust property having regard to the spirit of the trust. The trust purposes had therefore failed and the trust property was to be applied cy-prés by a scheme to be settled.

Court Disposition

Declaration that the trust purposes had failed; trust property ordered to be applied cy-prés and a scheme to be settled.

Orders

  • ['Declaration as sought in paragraph 1 of the Further Amended Summons omitting the words "in the terms of s9 of the Charitable Trusts Act 1993".' 'Order that the Trust property be applied cy-prés and that a scheme be settled for that purpose.' 'Direct the plaintiffs to bring in draft directions for the purpose of...