Gray v Australian Cancer Foundation for Medical Research; Estate Harold Boardman (No 2) [1999] NSWSC 725

Gray v Australian Cancer Foundation for Medical Research; Estate Harold Boardman (No 2) [1999] NSWSC 725

The Court determined that the original cy-pres scheme as formulated best fulfills the charitable purpose of the testator’s will, and that the applicants failed to demonstrate that their inclusion would have resulted in a different scheme or better carried out the charitable purpose; advertising was adequate, and the Attorney-General appropriately represented unascertained charitable interests.

Parties
Plaintiff: Lloyd William Gray; First Defendant: Australian Cancer Foundation for Medical Research; Second Defendant: Attorney General for New South Wales; Third Defendant: New South Wales State Cancer Council; Fourth Defendant: University of Sydney; Fifth Defendant: Stephen Warren Boardman; Applicant: Children's Cancer Institute Australia for Medical Research; Applicant: Skin & Cancer Foundation Australia
Jurisdiction
Australia
Judgment Date
08 July 1999
Procedural Posture
Equity Application / Charitable Trusts / Cy Pres Scheme / Application for Orders Admitting Additional Charities to Cy Pres Scheme—post Judgment, Prior to Order Being Taken Out
Outcome
Application by the additional charities refused; original orders to stand; costs order against applicants for costs incurred after 11 May 1999; stay lifted for scheme to proceed.
Legal Topics
Cy Pres Scheme, Charitable Gifts, Association Incorporation, Company Registration, Advertising for Claimants, Attorney General's Role in Charities, Costs in Charitable Proceedings
Equity Charities Corporations Associations Cy Pres Scheme Charitable Gifts Association Incorporation Company Registration +3 more

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Parties

Lloyd William Gray

Plaintiff

Australian Cancer Foundation for Medical Research

First Defendant

Attorney General for New South Wales

Second Defendant

New South Wales State Cancer Council

Third Defendant

University of Sydney

Fourth Defendant

Stephen Warren Boardman

Fifth Defendant

Children's Cancer Institute Australia for Medical Research

Applicant

Skin & Cancer Foundation Australia

Applicant

Procedural Posture

Equity Application / Charitable Trusts / Cy Pres Scheme / Application for Orders Admitting Additional Charities to Cy Pres Scheme—post Judgment, Prior to Order Being Taken Out

Legal Issues

  1. 1 Whether additional charities should be permitted to participate in the distribution of the cy-pres fund after judgment but before orders taken out
  2. 2 Whether advertising was adequate to give potential beneficiaries notice
  3. 3 Whether the scheme should be varied to include further claimants

Ratio Decidendi

The Court determined that the original cy-pres scheme as formulated best fulfills the charitable purpose of the testator’s will, and that the applicants failed to demonstrate that their inclusion would have resulted in a different scheme or better carried out the charitable purpose; advertising was adequate, and the Attorney-General appropriately represented unascertained charitable interests.

Court Disposition

Application by the additional charities refused; original orders to stand; costs order against applicants for costs incurred after 11 May 1999; stay lifted for scheme to proceed.

Orders

  • The stay made on 26 May is lifted.
  • Orders 1, 2 and 3 (as initialled and amended) in the short minutes of 11 May 1999 are made.