Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456

Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456

The Court ordered that the trusts with conditions limiting benefits to children of Protestant parents be amended by cy-près schemes to remove those conditions, on the basis that such limitations had ceased to provide a suitable and effective method for the trust property’s use, given modern circumstances and the refusal of recipients to accept discriminatory distributions. The underlying general charitable intention of advancing education or relieving poverty remained and justified modification. The trustee was given advice regarding payments to restructured or successor entities and on administration of other aspects of the trust. Costs of both trustee and Attorney General were ordered...

Jurisdiction
Australia
Judgment Date
27 September 2018
Procedural Posture
Equity / Principal Judgment – Cy Près Scheme and Judicial Advice
Outcome
Orders made for cy-près schemes, judicial advice given to trustee, and orders for costs.
Legal Topics
['charitable Trust' 'cy Près Scheme' 'administration of Trusts' 'judicial Advice to Trustees' 'costs in Trust Litigation']
['equity' 'trusts'] ['charitable Trust' 'cy Près Scheme' 'administration of Trusts' 'judicial Advice to Trustees' 'costs in Trust Litigation']

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Procedural Posture

Equity / Principal Judgment – Cy Près Scheme and Judicial Advice

Legal Issues

  1. 1 ["Whether the Court should approve cy-près schemes for scholarship and children's home trusts containing discriminatory conditions limiting benefits to children of Protestant parents." 'Whether the trustee is justified in making payments to successor or restructured charitable organisations.' "Whether the trustee is justified in treating the Girls' Hostel trust as failed and applying its income to residue." 'Whether costs of both trustee and Attorney General should be paid from the trust fund on an indemnity basis.']

Ratio Decidendi

The Court ordered that the trusts with conditions limiting benefits to children of Protestant parents be amended by cy-près schemes to remove those conditions, on the basis that such limitations had ceased to provide a suitable and effective method for the trust property’s use, given modern circumstances and the refusal of recipients to accept discriminatory distributions. The underlying general charitable intention of advancing education or relieving poverty remained and justified modification. The trustee was given advice regarding payments to restructured or successor entities and on administration of other aspects of the trust. Costs of both trustee and Attorney General were ordered...

Court Disposition

Orders made for cy-près schemes, judicial advice given to trustee, and orders for costs.

Orders

  • ['The trustee and Attorney General to bring in agreed short minutes of order (or competing drafts) for schemes for administration of high school scholarships, disclosing accumulated income distribution between recipients from 2010 to 2017 and future recipients, within 14 days.' "Order that the trust established by...