Perpetual Trustee Company Ltd [2016] NSWSC 1273

Perpetual Trustee Company Ltd [2016] NSWSC 1273

Advice is given that the trustee is justified in forming the opinion that funds amounting to $155,000 were applied for a non-charitable purpose and, on the proper construction of the will, once the trustee forms such an opinion under the relevant proviso, it is obliged to pay the relevant funds to other well-established charities selected by the trustee, and is not required or permitted to review that decision. However, the trustee is not justified in forming the opinion that the Foundation has ceased to operate under its fundamental objects and purposes.

Parties
Plaintiff: Perpetual Trustee Company Limited; Interested Party: Australian Youth and Health Foundation
Jurisdiction
Australia
Judgment Date
13 September 2016
Procedural Posture
Trustee Judicial Advice / Judgment
Outcome
Advice given to trustee as sought in part; declaration made; other orders declined as unnecessary or hypothetical.
Legal Topics
Charitable Trusts, Judicial Advice, Construction of Wills
Trusts and Trustees Equity Charitable Trusts Judicial Advice Construction of Wills

Case Brief

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Parties

Perpetual Trustee Company Limited

Plaintiff

Australian Youth and Health Foundation

Interested Party

Procedural Posture

Trustee Judicial Advice / Judgment

Legal Issues

  1. 1 Whether trustee is justified in forming opinion that funds distributed from the trust were applied for a non-charitable purpose
  2. 2 Proper construction of the terms of the trust/will regarding when and how the trustee should redirect funds to alternative charities
  3. 3 Whether trustee is justified in forming opinion that the Foundation ceased to operate under its fundamental objects and purposes

Ratio Decidendi

Advice is given that the trustee is justified in forming the opinion that funds amounting to $155,000 were applied for a non-charitable purpose and, on the proper construction of the will, once the trustee forms such an opinion under the relevant proviso, it is obliged to pay the relevant funds to other well-established charities selected by the trustee, and is not required or permitted to review that decision. However, the trustee is not justified in forming the opinion that the Foundation has ceased to operate under its fundamental objects and purposes.

Court Disposition

Advice given to trustee as sought in part; declaration made; other orders declined as unnecessary or hypothetical.

Orders

  • Advice given that trustee justified in forming the opinion that the Foundation has not applied funds distributed from the trust for the relevant charitable purpose.
  • Declaration that, properly construing the trust, once the trustee forms one of the opinions in the proviso, it is obliged to pay the funds to such well-established and well-organised charity as it may select and is not required or permitted to review that decision.