Commissioner of State Revenue v Montessori Children’s Foundation [2025] QCA 153

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of State Revenue v Montessori Children’s Foundation [2025] QCA 153 PARTIES: COMMISSIONER OF STATE REVENUE (appellant) v MONTESSORI CHILDREN’S FOUNDATION ATF THE MASTERMAN MONTESSORI INDIGENOUS CHILDREN’S TRUST (respondent) FILE NO/S: Appeal No 1031 of 2025 QCAT No 134 of 2023 DIVISION: Court of Appeal PROCEEDING: Appeal Queensland Civil and Administrative Tribunal Act ORIGINATING COURT: Queensland Civil and Administrative Tribunal at Brisbane – [2025] QCAT 63 (Judicial Member Forrest SC) DELIVERED ON: 22 August 2025 DELIVERED AT: Brisbane HEARING DATE: 28 July 2025 JUDGES: Bond, Boddice and Bradley JJA ORDERS: 1. The appeal and the application for leave to appeal be dismissed. 2. The appellant pay the respondent’s costs of the appeal and of the application for leave to appeal. CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the respondent made an application for registration as a charitable institution pursuant to s 149B of the Taxation Administration Act 2001 (Qld) (Administration Act) – where the appellant refused to register the respondent as a charitable institution on the basis that it could not be characterised as an “institution” within the meaning of the Administration Act – where the respondent objected to the appellant’s decision – where the appellant disallowed the objection – where the respondent applied to the Queensland Civil and Administrative Tribunal (QCAT) for review of the objection decision – where QCAT ordered that the appellant’s objection decision be set aside and that the respondent’s application for registration as a charitable institution be approved – where the appellant appeals those orders – whether the judicial member erred in law in the interpretation of an “institution” in s 149C of the -- 1 of 15 -- 2 Administration Act – whether there has been an error of law and fact in the interpretation of an “institution” Taxation Administration Act 2001 (Qld), s 149A, s 149B, s 149C, s 149D, s 149G Stratton v Simpson (1970) 125 CLR 138; [1970] HCA 45, applied COUNSEL: H G Lakis, with E R Donaldson, for the appellant M J May for the respondent SOLICITORS: HWL Ebsworth Lawyers for the appellant Donovan Winkler Lawyers for the respondent [1] THE COURT: Chapter 2 of the Duties Act 2001 (Qld) imposes transfer duty on dutiable transactions. Under s 414 of that Act, duty is not imposed on a dutiable transaction under which a charitable institution acquires dutiable property. [2] On 2 November 2020, the respondent, acting in its capacity as the trustee of a charitable trust, made an application for registration as a charitable institution, pursuant to s 149A of the Taxation Administration Act 2001 (Qld) (Administration Act). [3] The respondent sought such registration so that it might claim the benefit of the s 414 exemption from the imposition of duty in respect of three real estate acquisition transactions it had entered into in its capacity as trustee of the charitable trust. [4] On 8 March 2021, the appellant refused to register the respondent as a charitable institution on the basis that it could not be characterised as an “institution” within the meaning of the Administration Act. [5] On 27 June 2022, the respondent objected to the appellant’s decision. [6] On 20 December 2022, the appellant disallowed the objection. [7] On 17 February 2023, the respondent, acting in its capacity as the trustee of the charitable trust, applied to the Queensland Civil and Administrative Tribunal (QCAT) for review of the objection decision. [8] On 17 February 2025, a judicial member of QCAT ordered that the appellant’s objection decision be set aside, and that the respondent’s application for registration as a charitable institution dated 2 November 2020, be approved pursuant to s 149B of the Administration Act, with the respondent and the trust of which it was trustee, to be registered as charitable institutions under ss 149D and 149G of the Administration Act, with the date of registration of 26 October 2020. [9] The appellant appeals those orders, contending that the judicial member erred in law in the interpretation of an “institution” in s 149C of the Administration Act. The appellant also seeks leave to appeal what is said to be an error of law and fact in the interpretation of an “institution”. The appellant contends that leave ought to be given as there is inconsistent intermediate court authority on the issue and the determination of the correct interpretation has wide ramifications for all institutions applying for registration under the Administration Act. -- 2 of 15 -- 3 Introductory observation [10] A basic proposition of the law of trusts is asserted in the first paragraph of Jacobs’ Law of Trusts in Australia: “A trust is not a juristic person with a legal personality distinct from that of the trustee and beneficiary.”1 [11] As Leeming JA recently observed: “In equity, a trust is a relationship, not a legal entity. In Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 at [24] Kiefel CJ, Keane and Edelman JJ said uncontroversially and axiomatically that ‘the trust is not a separate entity’ …”2 [12] The misconception that a trust is a legal person is widespread.3 It is nevertheless wrong and contributes to analytical confusion.4 [13] Unfortunately, some of the evidence below, the reasons below, the notice of appeal, and the parties’ written submissions were expressed in language which treated a trust as having a separate legal personality. And that was done apparently without anyone directing their attention to the fundamental principle just restated, or to the separate question whether, on its proper construction, the Administration Act changed that state of affairs. [14] These reasons endeavour not to make the same error. Background [15] Leslie Charles Masterman died in July 1991. Pursuant to the terms of his last Will, a charitable trust was established to further, through the Montessori method, the education of Aboriginal children in the Weipa area of Cape York Peninsula “to be held and applied pursuant to the terms of the Deed establishing such trust”. No such deed existed at the time of Mr Masterman’s death. As a consequence, litigation followed in the Supreme Court of Queensland. [16] In or around June 2005, the Supreme Court determined that there was a valid gift. Pursuant to its orders, on 8 June 2005 the respondent was established and registered as a public company limited by guarantee. The respondent’s constitution specified that its objects were to pursue charitable purposes only; to apply its income and property solely to promote those purposes; and to accept appointment as, and act as, trustee of each of the Foundations (a term defined to mean “the charitable trusts established or to be established for charitable purposes”). [17] By a Trust Deed made on or around 31 December 2005, the Masterman Montessori Indigenous Children’s Trust (the Trust) was established, with the respondent as its trustee. 1 Jacobs’ Law of Trusts in Australia (8th ed, 2016) at [1-01]. 2 Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30 per Leeming JA, with whom Bell CJ and Ward P agreed at [19]. 3 Jacobs’ Law of Trusts in Australia (8th ed, 2016) at [1-01], footnote 2. 4 ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209 per Leeming JA, with whom Beazley P and Macfarlan JA agreed at [13]–[20]. -- 3 of 15 -- 4 [18] By the Trust Deed, the respondent agreed to act as trustee of the Trust and to control, manage and administer the trust property (referred to in the Trust Deed as “the Gift Fund”) to give effect to the trust objects (referred to in the Trust Deed as “Objects”). It is convenient to refer to the respondent, when acting in its capacity as the trustee of the Trust, as the Trustee. [19] The trust objects and its purposes were specified in cl 4 of the Trust Deed. It suffices to note that the primary object so specified was to further the education of Indigenous children in the Cape York area, through the application of the Montessori educational philosophy and method. Clause 4 also required the Trustee to apply the trust property solely in carrying out the trust objects in accordance with the Trust Deed. [20] Between 2005 and 2009, the Trustee established Montessori early childhood classrooms and curriculum through a number of islands in the Torres Strait, training local facilitators. Between 2005 and 2013, the Trustee also engaged sponsor facilitators for Montessori-style education programs throughout Cape York. As well, the Trustee supported a Foundation in the Lockhart River area of Cape York, providing funding for an early childhood centre. [21] At the end of 2019, the Trustee shifted its focus and activities to increase its direct activities to provide Montessori services. The Trustee began to develop a program, engaging one of Australia’s pre-eminent Montessori trainers to develop its curriculum. [22] In mid-2020, the Trustee resolved to acquire premises in Cairns from which to direct and conduct the activities of the Trustee. Pursuant to that resolution, on 14 October 2020, the Trustee entered into contracts to purchase three properties in Cairns so as to conduct a share house business from them, with a view to providing the Trustee with real property assets that generated income and premises from which to conduct its activities and administration. Thereafter, the Trustee began delivering the program it had developed to the Indigenous community in the Cairns area, through a weekly playgroup that was free of charge to members of that community. [23] Prior to settlement of the contracts for those properties, the Trustee, on 2 November 2020, lodged an application to be registered as a charitable institution, under the Administration Act. The Trustee’s application described the institution the subject of the application as a “trustee” and set out the Trust’s name and specified that the respondent was the trustee of the Trust. The Trustee described its principal activities as “public benevolent activities, namely advancing the education of Indigenous children in the Cape area”. The Trustee’s application suggested that the Trustee was eligible for registration on the grounds that it was a “public benevolent institution”. [24] On 24 November 2020 (Relevant Date), the Trustee signed transfers in respect of the properties. That date became the Relevant Date for registration of the Trustee as an “institution” within the meaning of s 149C of the Administration Act. A consequence of such registration was that the transfers would be exempt from transfer duty under ch 2 of the Duties Act 2001 (Qld). Legislative regime [25] Part 11A of the Administration Act provides for registration of charitable institutions. -- 4 of 15 -- 5 [26] Under that part, a person authorised by an institution may apply to the Commissioner for registration of the institution (s 149A(1) of the Administration Act). The Commissioner must approve or refuse the application (s 149B of the Administration Act). The Commissioner may register the institution only if it satisfies the requirements of s 149C of the Administration Act. [27] Section 149C is in the following terms: “149C Restrictions on registration (1) The commissioner may register the institution only if it is an institution mentioned in subsections (2) to (4). (2) Each of the following may be registered— (a) a religious body or a body— (i) that is controlled by, or associated with, a religious body; and (ii) whose principal object and pursuit is the conduct of activities of a religious nature; (b) a public benevolent institution; (c) a university or university college; (d) a primary or secondary school; (e) a kindergarten; (f) an institution whose principal object or pursuit is the care of the sick, aged, infirm, afflicted or incorrigible persons; (g) an institution whose principal object or pursuit is the relief of poverty; (h) an institution whose principal object or pursuit is the care of children by— (i) being responsible for them on a full-time basis; and (ii) providing them with all necessary food, clothing and shelter; and (iii) providing for their general wellbeing and protection. (3) Also, an institution may be registered if its principal object or pursuit— (a) is fulfilling a charitable object or promoting the public good; and (b) is not a leisure, recreational, social or sporting object or pursuit. (4) In addition, the trustees of an institution mentioned in subsection (2) or (3), other than a university or university college, may be registered. -- 5 of 15 -- 6 (5) However, an institution, other than an institution or trustee of an institution mentioned in subsection (2)(a) or (c), must not be registered unless its constitution, however described, expressly provides that— (a) its income and property are used solely for promoting its objects; and (b) no part of its income or property is to be distributed, paid or transferred by way of bonus, dividend or other similar payment to its members; and (c) on its dissolution, the assets remaining after satisfying all debts and liabilities must be transferred— (i) to an institution that, under this section, may be registered; or (ii) to an institution the commissioner is satisfied has a principal object or pursuit mentioned in subsection (3)(a); or (iii) for a purpose the commissioner is satisfied is charitable or for the promotion of the public good. (6) In this section— constitution, of an institution, includes a law, deed or other instrument that constitutes the institution and governs the activities of the institution or its members.” The objection decision [28] The appellant refused the Trustee’s application for registration as a charitable institution, giving as its reasons: “Although the Trust is charitable and, by its trustee, may distribute all or part of the income or capital of the Trust, the Trust lacks the essential feature of an ‘institution’ as there is no body or organisation (independent of the trustee) that has been set up to carry on activities or provide services relevant to the purposes of the Trust. The fact that the Trustee dispenses funds and does so utilising a board of directors is not sufficient to qualify the gift fund (constituting the Trust) as an ‘institution’. The gift fund constituting the trust is a mere fiduciary relationship where the applicant holds property set aside for a particular purpose and has the discretion to apply those funds to best achieve that purpose. As the above cases demonstrate, such a fiduciary relationship does not result in the existence of an ‘institution’ separate and distinct from the trustee.” [29] The objection decision of 20 December 2022 specifically confirmed the original decision’s finding that the Trustee was not eligible for registration as a charitable institution. In confirming that decision, the objection decision suggested that it was clear from relevant case law that taxation legislation seeks to draw a distinction -- 6 of 15 -- 7 between a “mere trust” (that is charitable) and something that is a charitable institution. The appellant found that whilst the Trustee dispensed the Gift Fund in accordance with the Trust Deed, utilising a Board of Directors, that fact was insufficient to qualify the respondent as “an institution”. The QCAT decision [30] The Trustee filed an application to review the appellant’s refusal of its application for registration as a charitable institution. The orders sought by the application as filed were (relevantly) that the objection decision be set aside; the applicant’s objection be upheld; “the applicant’s application for registration as a charitable institution under to [sic] s 149B of the Taxation Administration Act 2001 be approved, and the applicant be registered under s 149D and 149G with a date of registration of 14 October 2020 or alternatively 26 October 2020”; and the assessments the subject of the objection decision be amended to nil. [31] There was no doubt that the application was filed by the respondent qua trustee because the application specified that the applicant’s full name was “Montessori Children’s Foundation as trustee for the Masterman Montessori Indigenous Children’s Trust”. Nor was there any doubt that the application sought registration as a charitable institution of the respondent qua trustee and that the application, as filed, did not seek an order that the Trust be separately registered as a charitable institution. [32] Unfortunately, at some stage during the interlocutory processes before QCAT, that position changed. And, as previously mentioned, that occurred apparently without anyone directing their attention to the fundamental principle summarised at [10] – [12] above, or to the separate question whether, on its proper construction, the Administration Act intended to change fundamental principle in the present context. [33] Thus it was that the parties filed before QCAT an agreed statement of facts and issues which assumed the Trust had a separate legal personality such that it and the Trustee could each separately be registered as a charitable institution. Amongst other things, that document stated: “Each relevant fact in dispute [24] The decision the subject of this review is the Respondent’s refusal to approve the Registration Application under Part 11A of the Administration Act. [25] The relevant issue in dispute is whether, at the time of the Transfers, the Masterman Trust was an ‘institution’ within the meaning of that term in subsections 149C(2) or (3) of the Administration Act with the effect that: (a) the Masterman Trust was an ‘institution’ capable of being registered pursuant to s 149C(1) of the Administration Act; and (b) consequently, the Applicant was the trustee of an ‘institution’ pursuant to s 149C(4), and thus also capable of being registered pursuant to s 149C(1) of the Administration Act. -- 7 of 15 -- 8 [26] Resolution of that issue will determine the following consequential issues: (a) whether the Registration Application should be approved under s 149B and either or both of the Masterman Trust and the Applicant registered under ss 149D and 149G with effect from no later than 26 October 2020; and (b) whether the Transfers were exempt from transfer duty under s 414 of the Duties Act. Each relevant fact in dispute [27] The relevant facts in dispute are whether, at the time of the Transfers, the Masterman Trust was an ‘institution’ within the meaning of s 149C(2) or (3) of the Administration Act.” [34] The judicial member observed that there was no dispute between the parties that the principal object or pursuit of the Trust satisfied the criteria provided for in s 149C(3) of the Administration Act. The only issue was whether the Trust was an “institution”, within the meaning of that term in the Administration Act, at the Relevant Date. [35] The judicial member sequentially considered three leading decisions of Mayor etc of Manchester v McAdam;5 Minister of National Revenue v Trusts & Guarantee Co Ltd6 and Stratton v Simpson7 which might be thought to shed light on the meaning of the term “institution” in the following passage: (footnotes omitted) “In 1896 [Mayor etc of Manchester v McAdam], the House of Lords considered an exemption from income tax with respect to any building, the property of any literary institution. In that case, Lord Herschell referred to a dictionary definition that considered an institution ‘a system, plan or society, established either by law, or by the authority of individuals, for promoting any object, public or social’. In the same case, Lord Macnaghten said: It is a little difficult to define the meaning of the term ‘institution’ in the modern acceptation of the word. It means, I suppose, an undertaking formed to promote some defined purpose having in view generally the instruction or education of the public. It is the body (so as to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle. In 1939 [Minister of National Revenue v Trusts & Guarantee Co Ltd], in a decision of the Privy Council on an appeal from the Supreme Court of Canada, delivered by Lord Romer, it was said:- It is by no means easy to give a definition of the word ‘institution’ that will cover every use of it. Its meaning must always depend upon the context in which it is found. It seems plain, for instance, from the context in which it is found in the 5 Mayor etc of Manchester v McAdam [1896] AC 500. 6 Minister of National Revenue v Trusts and Guarantee Co Ltd [1940] AC 138. 7 Stratton v Simpson (1970) 125 CLR 138. -- 8 of 15 -- 9 subsection in question that the word is intended to connote something more than a mere trust. Had the Dominion legislature intended to exempt from taxation the income of every charitable trust, nothing would have been easier than to say so. These British judicial pronouncements have been considered by our own Courts. Gibbs J in the High Court [Stratton v Simpson] relevantly concluded that an institution is ‘an establishment, organisation or association instituted for the promotion of some object, especially one of public utility’. The other judges of the High Court with the exception of Windeyer J agreed with Gibbs J’s consideration of the matter.”8 [36] After referring to that case law, the judicial member found: “Accepting that Australian authority eschews a ‘mere trust’ from being considered an ‘institution’ in this statutory context, and that the legislative scheme, particularly through s 149I’s empowering the Commissioner to cancel an institution’s registration if satisfied that it is no longer entitled to be registered under Part 11A, creates a temporal relevance or context for the determination of the question. The evidence in this matter has satisfied me that the Trust was more than just a ‘mere trust’ as at 24 November 2020. It was, I am satisfied, a body existing to translate the purpose as conceived in the mind of Mr Masterman and those who brought the Trust into existence into its living and active principle, to use the words of Lord Macnaghten. I have set out the level of activity undertaken by the Trust from the time Mr Cunliffe became involved with it in 2019. None of his evidence about that was challenged or disputed by the Respondent. ‘Limited’ though it may have been, as respectfully described by counsel for the Respondent, it nevertheless satisfied me that it took the Trust beyond simply being something that could be properly described as a ‘mere trust’ and to the level of being an ‘institution’ within the meaning of that term as intended in Part11A. It follows that I consider that the Applicant was entitled to registration under Part 11A as at 24 November 2020 and that the Commissioner’s decision to refuse its registration was wrong.”9 [37] The result was that the judicial member set aside the appellant’s objection decision of 20 December 2022 and ordered the Trustee’s application for registration of a charitable institution be approved; each of the Trust and the Trustee be registered as a charitable institution with a date of registration of 26 October 2020; and the matter be returned to the appellant to amend the relevant duty assessments such that the duty assessed was nil. Grounds of appeal [38] The appellant relies on four grounds of appeal. 8 Montessori Children’s Foundation v Commissioner of State Revenue [2025] QCAT 63 at [17] to [19]. 9 Montessori Children’s Foundation v Commissioner of State Revenue [2025] QCAT 63 at [20] to [22]. -- 9 of 15 -- 10 [39] First, that the judicial member erred in law “by failing to interpret and apply the statutory term ‘institution’, in accordance with its technical, legal meaning in section 149C, properly construed”. [40] Second, that the judicial member “erred in law by failing to take into account relevant considerations in evaluating the Trust, including where its structure and conditions of membership; and its activities … as subsisted prior to the Relevant Date, do not rise to the requirements for an ‘institution’, as contemplated in s 149C, but are consistent with those of a mere charitable trust”. [41] Third, in the alternative to ground 2, that the judicial member “erred in law and fact by misapplying the legal meaning of ‘institution’ to the circumstances affecting the Trust, including where its activities …, as subsisted prior to the Relevant Date, do not rise to the requirements for an ‘institution’, as contemplated in section 149C, but are consistent with those of a mere charitable trust”. [42] Fourth, that the judicial member “erred in law by taking into account irrelevant considerations in evaluating the Trust, including where regard was had to matters … that occurred after the Relevant Date”. Consideration [43] The proper consideration by the appellant of an application for registration as a charitable institution will necessitate (at least) a consideration of the structure and activities of the body which is the subject of the application. In the present case, the application which was the subject of the objection decision and its review in QCAT, was the Trustee’s application for registration of the Trustee as a charitable institution. The body which was the subject of the application was the Trustee i.e. the respondent in its capacity as trustee of the Trust. [44] It was submitted to this Court that the Administration Act may have contemplated the possibility that a trust could be registered as a charitable institution separately from its trustee. It was suggested that contemplation flows from the wording of s 149C(4). But even if that were so – a question which the Court will not resolve as it was the subject of assumption rather than proper analysis both below and before this Court10 – the question whether a trust should be registered would not require the requisite analysis to ignore fundamental principle. Rather, it would compel a careful examination of the identity of the trustee, the nature of the trust relationship, and the activities conducted by the trustee in the trustee’s capacity as such. [45] Upon a proper analysis, the activities identified in the recitation of the background facts above were not activities performed by “the Trust”. Rather, they were activities performed by a public company limited by guarantee, by its servants or agents, in its capacity as Trustee of the Trust. The company was the subject of obligations as specified in its constitution and under the Trust Deed. Accordingly, in order to determine whether the Trustee should be regarded as a charitable institution it is appropriate to consider the relevant terms of the Trustee’s constitution, the relevant terms of the Trust Deed which regulated what the Trustee could do with trust assets, and the structure and activities of the Trustee over time with the trust assets. 10 And, further, the QCAT order that the Trust be registered as a charitable institution was not the subject of challenge before this Court. -- 10 of 15 -- 11 Ground 1 [46] The appellant submits that although “institution” is not defined in the Administration Act, it has an established legal meaning in the context of taxation legislation, namely “an establishment, organisation or body with a composition of more than seven members that exists in a structured form and manifests its object or purpose through direct and ongoing activities for the public good”.11 [47] The appellant further submits that whilst the meaning of “institution” will depend upon its context, the authorities collectively establish that an “institution” must involve more than the mere holding of property for charitable purposes and being a conduit for funding the activity of someone else. In short, it must be something more than a mere trust. [48] The appellant’s submissions wrongly seek to treat observations made by other Courts in particular circumstances as though they were statutory prescriptions universally applicable to confer a so-called technical meaning to the term “institution”. That approach must be rejected. The proper meaning of “institution” in Part 11A of the Administration Act is to be determined by a consideration of that term in the context of the legislative provision and the Administration Act as a whole, having regard to its legislative purpose. [49] When regard is had to the terms of Part 11A of the Administration Act, in the context of the legislation as a whole and its legislative purpose, the proper statutory interpretation calls for “institution” to be given its ordinary meaning. That meaning was recognised by Gibbs J (as his Honour then was) in Stratton v Simpson:12 “In its ordinary sense ‘institution’ means ‘an establishment, organization, or association, instituted for the promotion of some object, especially one of public utility, religious, charitable, educational etc.’ (The Shorter Oxford English Dictionary). It means, as was said in Mayor etc. of Manchester v. McAdam, ‘an undertaking formed to promote some defined purpose …’ or ‘the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle’. Although its meaning must depend on its context, it would not ordinarily connote a mere trust (cf. Minister of National Revenue v. Trusts and Guarantee Co. Ltd.). A school could appropriately be called an institution within the ordinary meaning of the word.” [50] To do otherwise would be to place an impermissible restriction on the term “institution”, inconsistent with the breadth of the types of bodies that may be an institution, as set out in s 149C(2) of the Administration Act. [51] The conclusion that “institution” is not to be given a technical meaning limited by a defined membership or structure, is also supported by the width of the definition of “constitution” of an institution in s 149C(6) of the Administration Act. 11 Appellant’s Outline of Argument, para 5.4, citing Mayor etc of Manchester v McAdam [1896] AC 500 at 511; Stratton v Simpson (1970) 125 CLR 138 at 158; Christian Enterprises Ltd v Commissioner of Land Tax (NSW) (1968) 72 SR (NSW) 90 at 99–100; Minister of National Revenue v Trusts and Guarantee Co [1940] AC 138 at 149; Pamas Foundation (Inc) v Deputy Commissioner of Taxation (1992) 35 FCR 117 at 118; Commissioner of Land Tax (NSW) v Joyce (1974) 132 CLR 22 at 27; Sargents Charitable Foundation Ltd v Chief Commissioner of State Revenue [2005] NSWSC 659 at 25. 12 Stratton v Simpson (1970) 125 CLR 138 at 158. -- 11 of 15 -- 12 [52] Contrary to the appellant’s submissions, a consideration of the authorities relied upon by the appellant does not support the submission that an “institution” denotes a body with a composition “of more than seven members”, or “a meaningful number of members” “sufficient to be an institution”. The authorities relied upon in support of that contention specifically considered different concepts such as a religious society or a structure controlled and operated by family members and friends. Each is to be limited to its factual circumstances. [53] There was no error by the judicial member in the interpretation of the word “institution” in the Administration Act. Grounds 2 and 3 [54] Once it is understood that “institution” is to be given its ordinary meaning, registration of an “institution” is framed by the requirements specified in s 149C(2), (3) and (4) of the Administration Act. [55] Those requirements are that certain specified types of bodies may be registered by the Commissioner, as may the trustees of such an institution, other than a university or university college, provided the body’s constitution satisfies the requirements set out in s 149C(5) of the Administration Act. [56] For the following reasons, the proper conclusion is that the Trustee fell within the ordinary meaning of “institution”. [57] First, the respondent did not seek registration as a charitable institution in its personal capacity. It sought registration in its capacity as trustee of a specific charitable trust with specific charitable objects. Having regard to the limitations specified in its constitution and to its obligations stated under the Trust Deed, it was required to apply trust property solely in carrying out those specific charitable objects. The Trustee was plainly called into existence to translate Mr Masterman’s purpose concerning the education of Indigenous children in the Cape area into “a living and active principle”. [58] Second, the Trustee did far more than merely hold trust assets for charitable purposes. A consideration of the substantial activities undertaken by the Trustee, between 2019 and the application for registration as an institution, supports a conclusion that it used trust property in carrying out the charitable objects. The Trustee was both living and active. Moreover, its activities were more than preparatory to the direct provision of programs. A program cannot be delivered until after its creation. The development of a specified curriculum for the program, which was directly provided by the respondent, was an activity consistent with the direct provision of services, by the Trustee, in accordance with its charitable purpose. The Trustee, by that stage, had moved from being a mere Trust, providing funding for others to provide services consistent with its charitable purposes. [59] That being so, there is no basis to conclude that there was any error of the type suggested by appeal grounds 2 and 3 in the judicial member’s ultimate conclusion that the Trustee was an “institution” under Part 11A of the Administration Act. [60] For completeness, we note that oral argument before this Court briefly touched upon the question whether, at the time of the Relevant Date, the Trustee satisfied the requirements set out in s 149C(5) of the Administration Act. We make the following observations: -- 12 of 15 -- 13 (a) The subject of the potential winding up of the respondent was addressed in its original constitution by cl 30 in these terms: “30 Winding up If the Company is wound up any property that remains (after satisfaction of all debts and liabilities of the Company, the payment of the costs, charges and expenses of winding up and any adjustment of the rights of the contributories among Members) must be not be paid or distributed to Members but must be given or transferred to some other institution or institutions having objects similar to the objects of the Company and whose constitution prohibits the distribution of its income and property among members. In the event that the ATO revokes the Company's DGR endorsement or the Company winds up, the following surplus assets must be transferred to another charitable organisation that is endorsed as a DGR: • gifts and deductible contributions made to the Company for its principal purpose; and • any money received by the Company because of such gifts and contributions.” (b) The possibility that the charitable trust might one day have to be wound up was addressed by cl 14 of the Trust Deed in the following terms: “14 Winding up 14.1 Termination of Trust The Trust may be terminated by order of the Supreme Court of Queensland. 14.2 Procedure on termination of Trust The Trustee must: (a) on or before the Trust Termination Date, pay or otherwise discharge all debts and liabilities in relation to the Trust; and (b) if the Trust is endorsed under Subdivision 30-BA of the Tax Act, on the Trust Termination Date, transfer any surplus assets of the Gift Fund to one or more entities endorsed under Subdivision 30-BA of the Tax Act; or (c) if the Trust is not endorsed under Subdivision 30-BA of the Tax Act, transfer any surplus assets of the Gift Fund to one or more charitable entities. 14.3 Acknowledgement It is acknowledged that the Masterman Family (if so advised) has the right to apply to the Supreme Court of Queensland for a declaration that the trust has failed, and for consequential relief.” -- 13 of 15 -- 14 (c) On 26 October 2020, cl 14 of the Trust Deed was amended by: (i) amending clause 14.2 (c) to read: “if the Trust is not endorsed under Subdivision 30-BA of the Tax Act, transfer any surplus assets of the Gift Fund to one or more charitable entities; and” (ii) inserting a new clause 14.2 (d) as follows: “(d) if any surplus assets of the Gift Fund are transferred under clause 14.2(b) or 14.2(c), ensure that those assets are only transferred: (i) to an institution or institutions that may be registered under section 149C of the Taxation Administration Act 2001 (Qld); or (ii) to an institution or institutions that the Commissioner of State Revenue is or would be satisfied has a principal object or pursuit of fulfilling a charitable object or promoting the public good; or (iii) for a purpose that the Commissioner of State Revenue is or would be satisfied is charitable or for the promotion of the public good.” (d) The appellant accepted that as at the Relevant Date the Trust Deed satisfied the requirements of s 149C(5). However, the constitution of the respondent was not amended in a similar way until 13 October 2021, a date which was well after the Relevant Date. (e) It might have been argued that the Trustee could not have been registered as an institution as at the Relevant Date because its constitution had not yet been amended so as to satisfy the requirements of s 149C(5) until 13 October 2021. (f) Any such argument would have had real difficulty. At first blush, the term “constitution” as defined in s 149(6) of the Administration Act when applied to a corporate trustee of a charitable trust is broad enough not merely to encompass the document which is the constitution of the trustee within the meaning of the corporations law, but would also extend to encompass the trust deed which governs the activities of the corporate trustee in the capacity in which it seeks registration as an institution. (g) It is, however, unnecessary to express a concluded view on this point because it was not raised as a ground of appeal and no application was made for leave to amend the grounds of appeal to permit it to be raised. Ground 4 [61] There was no error in the judicial member’s consideration of activities undertaken by the Trustee, subsequent to the Relevant Date, when determining whether the respondent was an “institution”, within the meaning of Part 11A of the Administration Act. Those activities were properly to be considered in order to -- 14 of 15 -- 15 understand the nature and purpose of the activities which had been undertaken by the Trustee, prior to the Relevant Date. Conclusion [62] The appellant has not made good any of the grounds of appeal which it advanced. Orders [63] The following orders should be made: 1. The appeal and the application for leave to appeal be dismissed. 2. The appellant pay the respondent’s costs of the appeal and of the application for leave to appeal. -- 15 of 15 --