Banyo Seminary Trust, Re [2000] QSC 215

~{ ,.~,·-_,_ .•.·...... 7 ~O'tU\f,l·-~ - ~ -- J) lll-~~lll ti.eporrtilg HLC 6C 00(2!5~~--------------------------------------------------------------------------~-- TRANSCRIPT OF PROCEEDiNGS Copyright in this tr~nscript is vested in the Cro'>vn. Copies thereof must not be m.::1de cr sold without the 'Nritten ~uthority of the Oirec:or, St.::1te Reporting Bure;Ju. THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J No 3536 of 2000 IN THE MATTER OF THE TRUSTS ACT 1973 IN-THE MATTER OF THE BANYO SEMINARY TRUST BRISBANE .. DATE 10/05/2000 JUDGMENT REVhSCD C~ ISSUED r State Reporting 6ure.:::L: Date 18 / S I co &):<----------------,------------ ~ ~~ 1·1""!, Tl1•: l.:nv (t~lll't.'i, C:~.·"q..:•: Stn:d, l:ri"l':lftt.:, (). -tllfl() !®: -- 1 of 9 -- 10052000 T10/LM26 M/T 7439/2000 (White J) HER HONOUR: This is an application pursuant to section 105 (1) (e) (iii) to apply part of the property of the Banyo ' Seminary Trust Cy-Pres. The Attorney-General has been served and appears on this ~ application and I have been much assisted by Mr Green's submissions on the Attorney's behalf and also by the submissions of Mr G Gibson, QC, for the applicants who are the Catholic Bishops of Queensland. 20 It is necessary to say something about the background to the Banyo Seminary Trust. A deed of trust which is the subject trust dated 11 April 30 1939 established a trust in Queensland to set up and conduct a seminary or seminaries for the education of students for the Roman Catholic priesthood. The Bishops acquired land at Banyo for the purpose of 40 carrying out the trust. That task was to be carried out by a Corporation, the directors of which were the Catholic Bishops of Queensland for the time being. The land at Banyo was acquired and the transfer registered in 1940. 50 Funds were sought from members of the Church to assist with the construction of the new seminary. Today the Banyo Seminary improvements consist of a residential college with accommodation for 160 students and all the attendant buildings which would go with such extensive living 60 2 JUDGMENT -- 2 of 9 -- 10052000 T10/LM26 M/T 7439/2000 (White J) quarters, such as bathrooms and kitchens and so on. Also included are conference rooms, a library and chapel, and recreational and sporting facilities. The Bishops seek to vary the purpose of the trust so as to 1p enable an arrangement to be entered into with the Australian Catholic University. That arrangement in essence is that the Australian Catholic University will occupy 90 per cent of the Banyo land for its university purposes and, in effect, the facilities will be shared facilities. The trust 20 will retain exclusively about 10 per cent of the land. Under the terms of the agreement with the Australian Catholic University the University will pay the trustee of the trust $3 million, will maintain the property and its improvements and will pay all outgoings associated with the land, for example rates and land taxes. The Australian Catholic University is a well-known institution which operates campuses throughout Australia. It offers a variety of undergraduate programs including a Bachelor of Theology, a Bachelor of Social Sciences in pastoral counselling, and other humanitarian and Arts-like courses. This is not a decision which has been taken lightly by the Bishops. As they set out in their joint affidavit, the direction of the Catholic Church with respect to the training of men for the priesthood has taken a significantly 3 JUDGMENT 30 40 50 60 -- 3 of 9 -- 10052000 T10/LM26 M/T 7439/2000 (White J) different turn as a consequence of the results of the Second Vatican Council wherein the Church was directed to turn more to its role in the world rather than the way in which institutions such as the Banyo Seminary had been conducted in the past which tended to be along monastic lines where a 1p student for the priesthood was withdrawn from the family, the parish and society. Presently the students for the priesthood attached to the Banyo Seminary live outside the seminary and attend there 20 for classes as would be the case in most university situations. The Bishops have considered a number of ways of dealing with the land all of which have their drawbacks including a proposal for a joint college of theology with other churches. There have been two inquiries conducted on behalf of the Bishops since it was seen that its use, as was initially envisaged in the trust, is now not practical. The first was carried out by the Honourable William Carter QC and the second by the Honourable Justice G E Fitzgerald, the first in 1993 and the second in 1994. The bishops are desirous of maintaining the Banyo land for a variety of reasons, not least the important relationship with the history of the Church in Queensland. However for many years the Bishops have found it necessary to contribute 4 JUDGMENT 30 40 50 60 -- 4 of 9 -- 10052000 T10/LM26 M/T 7439/2000 (White J) from their own resources sums ln excess of $600,000 per annum towards the maintenance of the Banyo Seminary. This, of course, is a completely undesirable situation ar.d would tend to undermine the use of the trust. 19- The negotiations with the Australian Catholic University have produced an extensive document which is exhibited to the joint affidavit. It is necessary, I think, to refer only to Clause 5 of that agreement which establishes a trust between the trustee of the existing Banyo Seminary Trust and 20 the Australian Catholic University. Clause 5 provides as follows: "The Corporation will hold the Cy Pres Land to the use of the University UPON TRUST for the carrying on by the University upon the Cy Pres Land of a range of teaching programs, teaching services and activities normally associated with a Catholic University, consistent with its constitution as from time to time in force and with all Acts of Parliament and subordinate legislation made thereunder from time to time affecting the University or regulating its affairs and so as to facilitate, where reasonably possible, educational arrangements that will be of benefit to the Seminary/Theologate conducted by the Corporation." This may be considered with the original trust document establishing the seminary which provides in Clause 2 the 30 40 purpose for which the Banyo Seminary Trust was established. 50 60 5 JUDGMENT -- 5 of 9 -- 10052000 T11/PMD18 M/T 7549/2000 (White J) It provides: "The trustees shall by all lawful means acquire and receive real and personal property and (except where special trusts are declared as hereinafter mentioned) shall apply the same in or towards the establishment or conduct of a regional seminary or regional seminaries in Queensland for the education and training of students for the Roman Catholic Priesthood for which purpose they shall do and carry out or assist in doing or carrying out all such matters and things as are likely to promote the objects and purposes of such a seminary or seminaries and may accept or acquire property for the general purposes abovementioned or upon special trusts connected with such a seminary or seminaries either as original trustees or as new trustees of any trusts already existing or as bare or passive trustees without undertaking the management and administration of such property where trusts of such property in connection with such purposes are to be administered by other trustees or managers Provided that the trustees shall not be bound to accept property for any of the foregoing purposes or for any purpose unless they shall in their absolute discretion deem it expedient so to do." It can be seen that there is some coincidence of goals between the proposal and the existing trust. For completeness, it is appropriate to consider the objects of the Australian Catholic University, which are set out in its memorandum of association in clause 2.1, which are: "2.1.1 to establish, operate, maintain and promote, as part of the mission of the Roman Catholic Church, the Australian Catholic University ("the University") in accordance with the beliefs, traditions, practices and canonical legislation of the Roman Catholic Church and by doing so to promote culture and the development of the human person; 6 JUDGMENT 20 30 40 50 60 -- 6 of 9 -- 10052000 T11/PMD18 M/T 7549/2000 (White J) 2.1.2 to foster and promote education, scholarship and research and through the education programmes of the University provide and promote preparation and continuing development of persons inspired by Christian IC principles who will be capable of assuming positions of responsibility in the Church and in society and in particular - (a) to provide undergraduate and postgraduate teaching programmes of university standard; 20 (b) to create an environment for the achievement of excellence in scholarship 30 and research; (c) to bring students to a high standard of professional development; (d) to foster a Christian environment and form a genuine human community amongst the staff and students of the University. " 40 50 Perhaps because of observations made by me in the decision of Re Peirson Memorial Trust, unreported decision of 7 December 1995, counsel have considered the question whether it is necessary when the property of an existing charitable 60 7 JUDGMENT -- 7 of 9 -- 10052000 T11/PMD18 M/T 7549/2000 (White J) trust is to be applied Cy-Pres whether it is necessary to establish a general charitable intention. The passing comment which was made by me in that case was not intended to suggest that was required. Once a trust has 1 ~ been established as a charitable trust that seems to me, on authority, to be the end of the matter and the requirement then is to follow the provisions of the Trusts Act. If it is necessary to make that comment yet again I would say, however, that this is clearly a matter which falls within 20 the ambit of a general charitable intention. There is no doubt then that a scheme has been made necessary by changing circumstances. Might I also add that in 1999 there are seven resident priests at the seminary catering for eight candidates for the priesthood who are in training, compared to 1967 when there were 122 students. An aspect of the agreement with the Australian Catholic University is that it can be revoked in appropriate circumstances. That it has been constituted by a trust rather than by some other method, such as a licence to occupy, seems to me to be not a matter that would cause any concern because of the provision of revocation in the agreement. The fact that the facilities are to be shared, that is continue to be available for the purposes of the trust, is another factor of some significance. 30 40 50 60 8 JUDGMENT -- 8 of 9 -- 10052000 Tll/PMD18 M/T 7549/2000 (White J) The proposed terms are set out in the agreement to which I have made reference and I think it unnecessary to refer to them further. They have been carefully thought through and seem to cover every aspect of the arrangements with the Australian Catholic University, which has agreed to pay all 1 ~ the costs associated with the establishment of this new arrangement. I am of the view then that the terms proposed are acceptable and that the property should be applied Cy-Pres. A draft 20 order has been prepared by the applicant, which has been considered by the Attorney-General. It is in a simple form, but seems to cover the case. So the order is as per draft. 30 40 50 60 9 JUDGMENT -- 9 of 9 --