Armidale Dumaresq Council v Attorney-General (NSW) (No 2) [2007] NSWSC 558

Armidale Dumaresq Council v Attorney-General (NSW) (No 2) [2007] NSWSC 558

The Court was not satisfied on the evidence that the proposed sale or moiety arrangement came within s 81 of the Trustee Act 1925 or, if it did, that an order should be made. The paintings were core trust assets, the core purpose was their display in the Armidale area, and the proposed arrangement risked permanent removal of the painting from the Armidale area and from any revived teachers' college collection. The evidence was insufficient to show that there was no other viable alternative or that the trust could no longer be carried out according to its deed.

Jurisdiction
Australia
Judgment Date
22 May 2007
Procedural Posture
Application Under S 81 of the Trustee Act 1925 / Ex Tempore Judgment on Application for Authority Concerning Trust Property
Outcome
Application for an order under s 81 of the Trustee Act 1925 refused at this stage; proceedings stood over on the plaintiff's application.
Legal Topics
['application to Court for Authority' 'trustee Powers' 'sale of Trust Property' 'section 81 of the Trustee Act 1925' 'cy Pres' 'judicial Advice']
['equity' 'trusts' 'charitable Trusts'] ['application to Court for Authority' 'trustee Powers' 'sale of Trust Property' 'section 81 of the Trustee Act 1925' 'cy Pres' 'judicial Advice']

Case Brief

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Procedural Posture

Application Under S 81 of the Trustee Act 1925 / Ex Tempore Judgment on Application for Authority Concerning Trust Property

Legal Issues

  1. 1 ['Whether the Court should authorise under s 81 of the Trustee Act 1925 a transaction by which a trustee would sell or transfer a moiety interest in a significant trust painting to the Art Gallery of New South Wales.' 'Whether the proposed dealing was consistent with the purpose and objects of the Hinton trust, including retention and display of the collection in the Armidale area.' 'Whether the proposed order would subvert the trust rather than facilitate its management or administration.' 'Whether the evidence established that there was no viable alternative to the proposed dealing or that the trust could no longer be carried out according to its terms.']

Ratio Decidendi

The Court was not satisfied on the evidence that the proposed sale or moiety arrangement came within s 81 of the Trustee Act 1925 or, if it did, that an order should be made. The paintings were core trust assets, the core purpose was their display in the Armidale area, and the proposed arrangement risked permanent removal of the painting from the Armidale area and from any revived teachers' college collection. The evidence was insufficient to show that there was no other viable alternative or that the trust could no longer be carried out according to its deed.

Court Disposition

Application for an order under s 81 of the Trustee Act 1925 refused at this stage; proceedings stood over on the plaintiff's application.

Orders

  • ['The matter will stand over for mention before Young CJ in Eq on 21 August 2007 at 9.50 am.' 'Any draft amended summons and any further material intended to be relied on by the plaintiff be filed and served no later than 4 pm on 7 August 2007.' 'Costs to date reserved.']