Re: David Cummings Medical Trust [2013] NZHC 2944

Re: David Cummings Medical Trust [2013] NZHC 2944

The court found it impracticable and inexpedient to confine the Trust to postgraduate study only at Edinburgh University given lack of applicants and changes in relative desirability of institutions; the proposed expanded, still‑charitable purposes (including overseas universities, distance learning and computer resources) give effect as closely as reasonably possible to the settlor's intentions and the Attorney‑General's approval was obtained; accordingly the variation was approved.

Citation
[2013] NZHC 2944
Parties
Applicant/trustee: Peter Joseph Radich; Applicant/trustee: Perpetual Trust Limited; Charitable Trust: David Cummings Medical Trust; Interested Party: Attorney‑General
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 November 2013
Procedural Posture
Scheme Under Part 3 Charitable Trusts Act 1957 / Application for Variation and Court Approval (hearing and Judgment)
Outcome
Application granted; scheme approved and new deed substituted as proposed
Legal Topics
Variation of Charitable Trust, Cy‑près, S 32 Charitable Trusts Act 1957, Attorney‑general Opinion S 56, Costs S 52
Charities Law Trusts Equity Variation of Charitable Trust Cy‑près S 32 Charitable Trusts Act 1957 Attorney‑general Opinion S 56 Costs S 52

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Parties

Peter Joseph Radich

Applicant/trustee

Perpetual Trust Limited

Applicant/trustee

David Cummings Medical Trust

Charitable Trust

Attorney‑General

Interested Party

Procedural Posture

Scheme Under Part 3 Charitable Trusts Act 1957 / Application for Variation and Court Approval (hearing and Judgment)

Legal Issues

  1. 1 Whether it is impossible, impracticable or inexpedient to carry out the Trust's original charitable purpose under s 32(1) of the Charitable Trusts Act 1957
  2. 2 Whether the proposed variation would remain a charitable purpose
  3. 3 Whether the variation adheres as closely as reasonably possible to the settlor's intentions (cy‑près)

Ratio Decidendi

The court found it impracticable and inexpedient to confine the Trust to postgraduate study only at Edinburgh University given lack of applicants and changes in relative desirability of institutions; the proposed expanded, still‑charitable purposes (including overseas universities, distance learning and computer resources) give effect as closely as reasonably possible to the settlor's intentions and the Attorney‑General's approval was obtained; accordingly the variation was approved.

Court Disposition

Application granted; scheme approved and new deed substituted as proposed

Orders

  • Application for variation granted and new trust deed substituting expanded purposes approved
  • Attorney‑General's costs fixed at $750 to be paid from the Trust's assets pursuant to s 52 of the Act