New South Wales Women's Aboriginal Corporation (in liquidation) v Commissioner of Dormant Funds [2004] NSWSC 202

New South Wales Women's Aboriginal Corporation (in liquidation) v Commissioner of Dormant Funds [2004] NSWSC 202

Upon the facts, the Commissioner of Dormant Funds may determine the Trust Funds to be a dormant fund under the Dormant Funds Act 1942 (NSW), and the Plaintiffs would be justified in approaching the Commissioner for such a determination. The term 'trustees' includes a company in liquidation, and the six-year inactivity test applied notwithstanding the appointment of provisional or full liquidators.

Jurisdiction
Australia
Judgment Date
24 March 2004
Procedural Posture
Application for Judicial Advice and Directions / Final Determination at First Instance
Outcome
Court gave judicial advice that the Commissioner of Dormant Funds may determine the Trust Funds to be a dormant fund and that Plaintiffs would be justified in approaching the Commissioner for such a determination; costs ordered out of the Trust Funds; remaining relief stood over generally with liberty to restore.
Legal Topics
['judicial Advice to Trustees' 'dormant Funds' 'charitable Trusts' 'liquidator Directions']
['equity' 'trusts and Estates' 'charities'] ['judicial Advice to Trustees' 'dormant Funds' 'charitable Trusts' 'liquidator Directions']

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Procedural Posture

Application for Judicial Advice and Directions / Final Determination at First Instance

Legal Issues

  1. 1 ["Whether trust funds held by a corporation in liquidation constitute a 'dormant fund' under the Dormant Funds Act 1942 (NSW) and whether judicial advice and directions should be given to approach the Commissioner of Dormant Funds" 'Interaction between Dormant Funds Act 1942 and Charitable Trusts Act 1993 in circumstances involving a liquidator']

Ratio Decidendi

Upon the facts, the Commissioner of Dormant Funds may determine the Trust Funds to be a dormant fund under the Dormant Funds Act 1942 (NSW), and the Plaintiffs would be justified in approaching the Commissioner for such a determination. The term 'trustees' includes a company in liquidation, and the six-year inactivity test applied notwithstanding the appointment of provisional or full liquidators.

Court Disposition

Court gave judicial advice that the Commissioner of Dormant Funds may determine the Trust Funds to be a dormant fund and that Plaintiffs would be justified in approaching the Commissioner for such a determination; costs ordered out of the Trust Funds; remaining relief stood over generally with liberty to restore.

Orders

  • ['Court expresses opinion that upon the facts the Commissioner of Dormant Funds may determine the Trust Funds to be a dormant fund.' 'Court gives to the First Plaintiff its advice and to the Second Plaintiff the direction that they would be justified in approaching the Commissioner of Dormant Funds with a request...