Wesley Community Services Limited trading as Wesley Mission v Smith [2025] NSWSC 154

Wesley Community Services Limited trading as Wesley Mission v Smith [2025] NSWSC 154

Clause 2(a) and (b) of the Will created a charitable trust whose original purposes (providing respite care to Wesley Mission staff and those in need for 30 years) have wholly or in part ceased to provide a suitable and effective method of using the property, given the property's condition and unsuitability. The spirit of the trust was to provide for those in need, including homeless people under the care of Wesley Mission. As such, application of the cy-près doctrine is warranted: the Newport property is to be sold and the proceeds applied by Wesley Mission for the benefit of those in need through specific current programs, consistently with the spirit of the original trust. The plaintiff...

Parties
Plaintiff: Wesley Community Services Limited; First Defendant: Stephen Smith; Second Defendant: Attorney General of NSW
Jurisdiction
Australia
Judgment Date
21 February 2025
Procedural Posture
Principal Judgment / Final Orders With Cy Près Scheme
Outcome
Orders made for declaration of charitable trust, removal and replacement of trustee, vesting of property, approval of cy-près scheme, and costs ordered from trust fund.
Legal Topics
Charitable Trusts—intention and Construction, Cy Près Schemes, Appointment and Removal of Trustees, Trusts for Charitable Purposes, Costs in Estate Litigation, Supervision and Administration of Trusts
Equity Charitable Trusts Will Construction Charitable Trusts—intention and Construction Cy Près Schemes Appointment and Removal of Trustees Trusts for Charitable Purposes Costs in Estate Litigation +1 more

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Parties

Wesley Community Services Limited

Plaintiff

Stephen Smith

First Defendant

Attorney General of NSW

Second Defendant

Procedural Posture

Principal Judgment / Final Orders With Cy Près Scheme

Legal Issues

  1. 1 Whether clause 2 of the Will created a charitable trust
  2. 2 Who is the proper trustee under the Will
  3. 3 Whether the original purposes of the trust have wholly or in part ceased to provide a suitable and effective method of using the property, having regard to the spirit of the trust

Ratio Decidendi

Clause 2(a) and (b) of the Will created a charitable trust whose original purposes (providing respite care to Wesley Mission staff and those in need for 30 years) have wholly or in part ceased to provide a suitable and effective method of using the property, given the property's condition and unsuitability. The spirit of the trust was to provide for those in need, including homeless people under the care of Wesley Mission. As such, application of the cy-près doctrine is warranted: the Newport property is to be sold and the proceeds applied by Wesley Mission for the benefit of those in need through specific current programs, consistently with the spirit of the original trust. The plaintiff...

Court Disposition

Orders made for declaration of charitable trust, removal and replacement of trustee, vesting of property, approval of cy-près scheme, and costs ordered from trust fund.

Orders

  • Declare clause 2(a) and (b) of the Will established a charitable trust under the Charitable Trusts Act 1993 (NSW).
  • Declare that original purposes have ceased to provide a suitable and effective method of using the property, having regard to spirit of the trust (CTA s 9).