Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) (No 2) [2018] NSWSC 1646

Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) (No 2) [2018] NSWSC 1646

The Court ordered cy-près administration of the scholarship trusts because the original religious, geographic and public-school entry conditions had become impracticable or inappropriate, while the testator's charitable intention to advance education could be given effect by awarding scholarships without those limitations. Eligibility was confined to the Lismore High campus because it was the natural successor to Lismore Public High School named in the will. Accumulated income and interest from 2010 to 2017 was to be distributed to past eligible students under a smoothed formula because the failure to award scholarships during that period was substantially attributable to trustee delay...

Jurisdiction
Australia
Judgment Date
01 November 2018
Procedural Posture
Application Concerning Administration Cy Près of Charitable Scholarship Trusts Established by Will / Consequential Orders After Earlier Judgment
Outcome
Orders made for administration cy-près of the scholarship trusts established by cll 8(B)(I), 8(B)(II) and 8(C)(I) of the will of the Honourable George Nesbitt.
Legal Topics
['charitable Trust' 'advancement of Education' 'cy Près Scheme' 'scholarship Trusts' 'administration of Accumulated Income']
['trusts' 'charity Law' 'equity'] ['charitable Trust' 'advancement of Education' 'cy Près Scheme' 'scholarship Trusts' 'administration of Accumulated Income']

Case Brief

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Procedural Posture

Application Concerning Administration Cy Près of Charitable Scholarship Trusts Established by Will / Consequential Orders After Earlier Judgment

Legal Issues

  1. 1 ['Whether the scholarship trusts established by cll 8(B)(I), 8(B)(II) and 8(C)(I) of the will should be administered cy-près by removing denominational, geographic and public-school entry limitations.' 'Whether eligibility for the scholarships should be confined to the Lismore High campus of The Rivers Secondary College.' 'How accumulated income and interest for the academic years 2010 to 2017 should be distributed after no scholarships had been awarded since the 2009 academic year.' 'Whether income affected by the 2015 income spike and the 2010 changeover year should be smoothed across the relevant period and how interest should be allocated.']

Ratio Decidendi

The Court ordered cy-près administration of the scholarship trusts because the original religious, geographic and public-school entry conditions had become impracticable or inappropriate, while the testator's charitable intention to advance education could be given effect by awarding scholarships without those limitations. Eligibility was confined to the Lismore High campus because it was the natural successor to Lismore Public High School named in the will. Accumulated income and interest from 2010 to 2017 was to be distributed to past eligible students under a smoothed formula because the failure to award scholarships during that period was substantially attributable to trustee delay...

Court Disposition

Orders made for administration cy-près of the scholarship trusts established by cll 8(B)(I), 8(B)(II) and 8(C)(I) of the will of the Honourable George Nesbitt.

Orders

  • ['From the date of the orders, all scholarships are to be awarded without regard to any denominational or geographic limitation.' 'From the date of the orders, all scholarships are to be awarded without regard to whether a student was enrolled from a public school, a private school or was home-schooled.' 'If a...