Anzac Cottages Trust, Re [1999] QSC 167

----------------~---~~~--~~------ - ~~- ~------ ) ) ) ) IN THE SUPREME COURT OF OUEENSLAND OS No 1418 of 1999 Brisbane Before the Hon Mr Justice Shepherdson IN THE MATTER of the Public Trustee Act 1978 - and- IN THE MATTER of the Anzac Cottages Trust - and- IN THE MATTER of the Anzac Cottages and T.B. Homes Act of 1960 REASONS FOR JUDGMENT - SHEPHERDS ON J Judgment delivered 19 July 1999 CATCHWORDS: TRUSTS AND TRUSTEES - OBJECTS AND DURATION - Application pursuant to s134 Public Trustee Act 1978 seeking the courts opinion and directions as to the following in relation to the Anzac Cottages Trust- a charitable trust - what is the dominant purpose of the trust - whether this purpose had been fulfilled - who the trust at an end - whether there is an ascertainable "class" of beneficiaries - whether cy pres administration per s105 Trust Act 1973 ought to be invoked - the meaning of "descendants" and "homeless" for the purpose of the trust - whether the Anzac Cottages and T.B. Homes Act of 1960 (repealed) relevantly applied to the present case - whether the Anzac Cottages Trust had stopped operating in terms of s38(1)( a) of the Land Act 1994. Commissioner for Special Purposes of Income Tax v Pemsel (1981) AC 531 Barby v Perpetual Trustee Company Ltd (1937) 58 CLR 316 Ralph v Carrick (1876) 11 Ch. D 873 Re: Hickey (1927) VLR 555 McPhail v Doulton (1971) AC 424 -- 1 of 29 -- ) ) ) ) ') J " Counsel: Solicitors: Hearing Date: Trusts Act 1973 sI05(1)(a)(iii) & (e)(iii) Acts Interpretation Act 1954 ss20 & 20A Public Trustee Act 1978 s134 ----~- ~-.~ --~--~ ---~ Anzac Cottages and T.B. Homes Act of 1960 Lands Act 1994 s38(1)(a) Lands Legislation Amendment Act 1992 s4 Mr JS Douglas QC with Mr Koppenol for the applicant Mr Morris QC with Mr D Campbell for Mrs C Bell Mr Wilson for the Attorney-General (Qld) Official Solicitor to the Public Trustee for the applicant Broadley Rees for Mrs C Bell Crown Law for the Attorney-General (Qld) Mr John Mulcahy in person Mr Russell Mulcahy in person 20 May 1999 ---'-...,., -- 2 of 29 -- I' ) ) ) IN THE SUPREME COURT OF QUEENSLAND OS No 1418 of 1999 Brisbane Before the Hon Mr Justice Shepherdson IN THE MATTER of the Public Trustee Act 1978 - and- IN THE MATTER of the Anzac Cottages Trust - and- IN THE MATTER of the Anzac Cottages and T.B. Homes Act of 1960 REASONS FOR JUDGMENT - SHEPHERDS ON J Judgment delivered 19 July 1999 ) The Public Trustee of Queensland has applied under s.134 of the Public Trustee Act 1978 seeking the court's opinion and direction as to a number of questions which are set out in the ') J originating summons. The application is supported by a statement of facts. The facts relate to what are known as Anzac Cottages. Before turning to appearances before me I think it best if I now state that the application is concerned with what is known as the Anzac Cottages Trust and more particularly with Anzac Cottage No 37 which is land and dwelling house at 16 Quarry Road, Alderley, Brisbane. The statement of facts put before me shows as follows: The Public Trustee of Queensland is the trustee of the Anzac Cottages Trust which was established by the Queensland War Council on 26 August 1918 when -- 3 of 29 -- ) ) ) ~I j -~~~----- ~-~--~ ~-----~---~------ 2 that Council adopted what are called "Rules of the Anzac Cottages Committee as adopted by the Queensland War Council on 26 August 1918". A photocopy of these Rules ("the rules") was exhibited in the statement of facts and I now set out those rules. "RULES OF THE ANZAC COTTAGES COMlVIITTEE AS ADOPTED BY THE QUEENSLAND WAR COUNCIL, 26TH AUGUST 1918. 1. The objects of the Anzac Cottage Committee hereinafter referred to as "The Committee" are:- 2. 3. (a) To acquire suitable areas of land, whether by gift, purchase or otherwise and to make arrangements for the erection thereon of cottages to be occupied by homeless widows or other female dependants or descendants of persons who have enlisted in Queensland for Military or Naval service with His Majesty's Forces in the present war, and have died while in such service or other persons as provided in 8(a). (b) To obtain gifts of money and goods to be used in the furtherance of (a). The head office of the Committee shall be at the Commercial Travellers Sample Rooms, Charlotte Street, Brisbane, or such other place as the Committee may from time to time determine. The Committee shall meet once a week or at such times as may be determined by the Chairman to consider ways and means of carrying out their objects and giving such directions to the Public Curator as may be necessary. 4. The Committee shall cause all land acquired by them for the erection of cottages as aforesaid, to be vested in the Public Curator upon trust in perpetuity, to hold and administer subject to the rules herein set forth. 5. The Public Curator shall permit the homeless widow or other female dependants or a descendant of a deceased Queensland Soldier as described in Rule l(a) hereof, who shall have been nominated by the Committee in" that behalf, to occupy such one of the abovementioned cottages as the Committee may direct, so long as such occupant being a female shall remain unmarried and of good behaviour, upon condition that there shall be paid to him as trustee, either monthly or at such other intervals as he shall decide, rent at the rate of one shilling and six pence per week, and also all rates and taxes. Before entering into possession, such widow or -- 4 of 29 -- ) ./ ) ) ) I j 3 other female dependant or descendant shall conclude with the Public Curator as trustee an agreement of lease in writing embodying all the terms in this Rule hereinbefore set forth. The moneys received as rent for such cottages shall be paid into a fund which shall be applied by the Public Curator for the maintenance in good repair ofthe said cottages and for the payment of all Fire Insurance premiums thereon but not on any furniture therein. Provided that the rent payable by any such tenant other than a widow or daughter of a deceased Queensland Soldier (as described in Rule lea) hereof, may in the discretion of the Committee or, if the Committee shall at any time cease to exist, of the Public Curator, be fixed, either before the tenant signs his or her lease or at any time during the tenancy after six months notice, at a rate higher than one shilling and six pence (1/6) per week. 6. It shall be a further condition of the agreement mentioned in Rule 5 hereof, that, if any of the Children of a widow or other female dependant Or descendant who so occupies a cottage marries, such child and his or her spouse shall not reside in such cottage or share the occupancy of the same with the said widow, or other female dependant or descendant except with the approval of the Committee. 7. If a widow so occupying a cottage dies, and one of her children is capable and desirous of caring for the remaining children the committee may, in their discretion, permit such child to remain in possession of the said cottage upon concluding an agreement embodying the terms set out in Rules 5 and 6 hereof 8. a. The Committee shall, on the termination by death or from any other cause of any tenant's occupancy of a cottage, re-Iet such cottage, on the terms set forth in Rules 5 and 6 hereof, to a widow or female dependant or descendant of a deceased Queensland Soldier (as described in Rule lea) hereof); provided that if any such person shall make application to occupy such cottage within a reasonable time after the termination of the last preceding tenancy, they may re-Iet such cottage to any person whom they thirik fit, and for such period and on such terms as they think fit. b. Ifat any time the moneys received by the Public Curator as rent for such cottages are insufficient to provide for the necessary repairing or re- building of all of such cottages, the Public Curator may from time to time with the approval of the Committee, sell by auction or otherwise any piece ofland or portion of any piece ofland vested in him in pursuance of these rules, together with the cottage, if any, erected thereon upon the expiration of the then current lease of such cottage, if any, and shall pay into the Fund mentioned in Rule 5 hereof all purchase moneys received by him from such sale. -- 5 of 29 -- ) ) ) ) \ j 4 9. The Governor-in-Council shall have power to fill any vacancy occurring on the Committee from time to time and shall also have power to increase or reduce the number of members constituting the Committee." According to the statement of facts the Anzac Cottages Trust became the subject of the Anzac Cottages and T.B. Homes Act of 1960. were:- As paragraph 1 of the rules shows the stated "objects" of the Anzac Cottage Committee "(a) (b) To acquire ... land ... and make arrangements for the erection thereon of cottages to be occupied by homeless widows or other female dependants or descendants of persons who have enlisted in Queensland for Military or Naval service with His Majesty's Forces in the present war, and have died while in such service or other persons as provided in 8(a). To obtain gifts of money and goods to be used in the furtherance of (a)." Rule 4 required the Anzac Cottage Committee to cause all land acquired by the Committee for the erection of cottages "as aforesaid" to be vested in the Public Curator upon trust in perpetuity, to hold and administer "subject to the rules herein set forth". Rule 5 as above set out cast on The Public Curator of Queensland (now The Public Trustee of Queensland) the role of manager of the tenancies of Anzac Cottages and this role commenced on 1 January 1919. One document exhibited before me is a copy of what is said to be a minute of the Anzac Cottages Committee dated 7 March 1919 which read:- "It was moved by Mr Adams and seconded by Mr .................... that the Public Curator be asked to take action as may be necessary to comply with Rule 5 of the Rules of the Anzac Cottage Committee as adopted by the Queensland War Council on 26 August 1919. Such action to take effect as from 1 January 1919 x:xxxxxxxxx Certified correct. J. Harry Coyne Chairman 7.3.19" On 19 August 1932 a meeting of the Queensland War Council passed the following -- 6 of 29 -- -; ,) ) ) -') ) ) ~~ -~~--~--------~ 5 resolution: "That the control ofT.B. Homes and Anzac Cottages be placed in the hands of the Public Curator." As I have said, in 1960 The Anzac Cottages and T.B. Homes Act of 1960 was enacted by the Queensland Parliament to "Enable the Public Curator of Queensland to sell for an estate in fee . simple certain lands held by him in trust as sites respectively for an Anzac Cottage or a home for an ex-soldier or an ex-sailor affected with tuberculosis". This Act was assented to on 24 March 1960. The preamble to the Act relevantly read: "WHEREAS during World War I an Association of Persons called the Anzac Cottage Committee was formed having for its objects the acquisition of suitable areas ofland and the making of arrangements for the erection of cottages (to be called and in this Act called "Anzac Cottages") to be occupied by homeless widows or other female dependants or descendants of persons who had enlisted in Queensland for Military or Naval service with His Majesty's forces in that war and who died while in such service and for certain other persons: AND WHEREAS an Association of Persons called the Queensland War Council set up a scheme having for its objects the provision of homes (in this Act called "T.B. Homes") for ex-soldiers or ex-sailors affected with tuberculosis and their widows and dependants. AND WHEREAS pursuant to the provisions of section one hundred and eighty of "The Land Acts 1910-1959" as in force for the time being, certain Crown lands were granted to the Public Curator of Queensland for an estate in fee simple upon trust as sites for Anzac Cottages or T.B. Homes. AND WHEREAS when no eligible person can be found to occupy an Anzac Cottage or a T.B. Home or in order to raise moneys for use in and towards the repair, maintenance and upkeep of other Anzac Cottages or, as the case requires, T.B. Homes, it is necessary that the Public Curator of Queensland be enabled to, from time to time, sell for an estate in fee simple any of the said lands freed and discharged from the Trust upon and subject to which the same was granted to him." Section 2 of that Act relevantly defined "eligible person" as:- "In respect of - Anzac Cottages, a homeless widow or other female dependant of a person who enlisted in Queensland for Military or Naval service with His Majesty's Forces in World War I and who died while in such service or the descendants of such persons;" -- 7 of 29 -- 6 This definition extends considerably the range of persons described in Rule l(a) of the rules - and does so by the use of the words "or the descendants of such persons". The word "descendants" appears in a place different from that in which it appears in Rule l(a) . . Section 3 of that Act enabled the Public Curator (whose full title was The Public Curator of Queensland) to apply in writing to the Minister for Public Lands and Irrigation or other Minister of the Crown for the time being charged with the administration of the Anzac Cottages and T.B. Homes Act for permission to sell for an estate in fee simple any land granted to the ) ) Public Curator as a site for an Anzac Cottage or T.B. Home absolutely freed and discharged from such trust when (inter alia) an Anzac Cottage "has become vacant or is occupied by a person who ) is not eligible to occupy it and there is not as far as the Public Curator can discover any eligible person available to occupy it". The statement of facts before me shows the efforts of the Anzac Cottages Committee resulted in the construction ofa totcil of 52 Anzac Cottages. After The Anzac Cottages and T.B. Homes Act was enacted then, as tenants of the cottages vacated or died the Public Curator ) obtained permission pursuant to that Act to sell the cottages. The Public Trustee's records for the administration of the Anzac Cottages show that the last sale of an Anzac Cottage was in May 1983 and that the last new tenancy of an Anzac Cottage commenced on 3 October 1978 with that particular cottage being sold in October 1980. I come now to ANZAC COTTAGE NO 37. This is the remaining Anzac Cottage. A photocopy of the relevant Title Deed, Deed of Grant No 122868 Volume 1981 Folio 128 in the then Titles Office shows that by virtue of s.180 of" The Land Acts 1910-1936" land situated in the County of Stanley, Parish ofEnoggera being subdivisions 41 and 42 of Portion 418 containing 35.6 perches was granted to the Public Curator of Queensland "upon trust as a site for an Anzac Cottage and for no other purpose whatsoever". -- 8 of 29 -- ) ,/ ) ) 7 The grant contained a proviso "that if the Trusts, Conditions, Reservations and Provisos herein contained be not duly observed and performed by the said The Public Curator of Queensland and his successors as trustee then the land shall be forfeited and revert" to the Crown. The deed bears the following endorsement:- "The abovementioned registered proprietor holds the within land upon trust as a site for an Anzac Cottage and for no other purpose whatsoever." The land on which Anzac Cottage No.37 was built was given by David Henry Rhoades, a Brisbane businessman, to the Queensland War Council for the purpose of an Anzac Cottage being built on it. The statement of facts further shows - the original tenant of Anzac Cottage No.37 was Mary Ann Warner the widow of John Thomas Warner who had died in World War I. On 2 July 1920 Mrs Warner and her five children began occupying the cottage. The initial rent was one shilling and sixpence per week. On 30 March 1958 the Public Curator was informed that Mary Ann Warner had died over twelve months earlier. At that time the rent being paid was four ) shillings and nine pence per week. On 30 April 1958 the Public Curator, exercising his discretion under Rule 7 of the Rules ') ) of the Anzac Cottages Committee allowed Florence Richardson Handley a daughter of Mary Ann Warner to become the tenant and occupant of No. 37. According to the statement offacts:- "The discretion was apparently exercised because Mrs Handley was a war widow (her husband having died in World War II) and because she had lived in the cottage for most of her life. The Public Trustee's file for No. 37 records that on 5 July 1967 Mrs Handley acknowledged that she was not an 'eligible' person under the Act." On 4 August 1958 the Fair Rents Court set the rent for No. 37 at one pound, seventeen shillings and sixpence per week under the "Landlord and Tenants Rules". However on 9 August 1958 the Public Curator reduced the rent to one pound per week reserving the right to charge the -- 9 of 29 -- ) ) ) -- -- ----------------------- ~-- 8 full rent. From 16 July 1967 (by which time decimal currency had been introduced into Australia) the rent was increased to $3.75 per week and remained at that figure until 10 February 1998 when Mrs Handley died. On 25 February 1998 Catherine Mulcahy Bell a great-niece of Mrs Handley telephoned the Public Trust Office and enquired as to the procedure for sale of No. 37. On 28 February 1998 Catherine Bell wrote to the Public Trustee and as the statement offacts says "requested that: " ... you advise me how you intend to dispose of the property, whether by private sale or public auction and in either case. the date that this will occur." By the Public Trustee Act 1978 the corporation sole "The Public Trustee of Queensland" had been created and in effect the former Public Curator became the Public Trustee (to use abbreviated titles). On 30 March 1998 the Public Trustee sent a letter to the Department of Natural Resources requesting permission of the Minister pursuant to s.4 of The Anzac Cottages and T.B. Homes Act of 1960 to sell No. 37. ) In the Queensland Government Gazette published on 8 May 1998 (No. 11, page 121) an \ ) Order in Council was published. The Order in Council relevantly read:- "The Anzac Cottages and T.B. Homes Act of 1960 (Repealed) and the Acts Interpretation Act 1954 GRANTING PERMISSION TO SELL LAND HELD AS AN ANZAC COTTAGE OR A T.B. HOME ORDER (No 01) 1998 Short title 1. This order in council maybe cited as the Granting Permission to Sell land held as an Anzac Cottage or a T.B. Home Order (No 01) 1998. Approval [s.4 of The Anzac Cottages and T.B. Homes Act of 1960 (Repealed) and s.20(1) of the Acts Interpretation Act 1954] 2. Approval is given to the Public Tfusteetosell by public auction for an estate in fee simple the land granted to the Public Trustee upon trust as a site for an -- 10 of 29 -- ), ) 9 Anzac Cottage or a T.B. Home absolutely freed and discharged from such trust as set out in the Schedule. SCHEDULE Metropolitan Region, Brisbane District Office Lots 41 and 42 on S311615, parish ofEnoggera containing an area of900 m2 and being the whole of the land contained in Title Reference 11981128." By this date the Anzac Cottages and T.B. Homes Act of 1960 had been repealed by the Lands Legislation Amendment Act 1992 s 4 schedule 2. On 19 May 1998 the Department of Natural Resources sent to the Public Trustee a copy of the Order in Council of8 May 1998. On 29 May 1998 the Public Trustee received a facsimile copy of a document from Catherine Bell in which she asserted the right to be the tenant ofNo.37. On 2 June 1998 the Public Trustee received the original of that facsimile document together with a number of other documents which were said to establish her "descendancy". Mrs ) Bell is the daughter ofJohn Edward Mulcahy, who was the son of Ellen Mulcahy (formally Ellen Warner) a daughter of John Thomas Warner and Mary Ann Warner (who was the first tenant of j No.37). Mrs Bell therefore appears to be the great granddaughter of Mary Ann Warner and a grand niece of the late Mrs Handley. Her claimed relationship is not challenged. Thereafter the Public Trustee received correspondence from solicitors acting for Catherine Bell including a letter received on 19 June 1998 in which these solicitors, Broadley Rees, advised the Public Trustee that Mrs Bell intended "to enforce her entitlement to occupy the property". The Public Trustee, at the request of Broadley Rees undertook not to take further steps to sell No.37. Further correspondence ensued between the Public Trustee and Broadley Rees. -- 11 of 29 -- ) / ) ) ) ! j ---- .... _.. __ .-.__.... 10 On 16 September 1998, following representations by Catherine Bell, a meeting was held at which were present Catherine Bell, her local member of parliament, the Attorney-General and a representative of the Public Trustee. The meeting decided that an opinion be obtained from Senior Counsel in relation to a number oflega! issues arising from the administration of the Anzac Cottages Trust and arising from Catherine Bell's claim. An opinion was then obtained from senior counsel and a copy of that opinion provided to Catherine Bell's solicitor. On 22 October 1998 the Public Trustee requested Catherine Bell's solicitors to have their client provide names and addresses of her relatives so that they could be informed of a proposed advertisement for a tenant ofNo.37 - that request was consistent with the opinion provided by senior counsel. On 24 October 1998 and again on 31 October 1998 an advertisement reading as follows appeared in the Courier Mail: "TO: Descendants of Queensland Service men Killed while in service World War I. The Public Trustee of Queensland is the Trustee of the Anzac Cottages Trust. The trust property at 16 Quarry Road, Alderley is available for rental. Any person who considers that they may be eligible and who is interested in renting the cottage please contact Kathryn Kennedy of the Public Trustee office on (07) 3213 9229 to obtain a copy of the Selection Criteria. This offer will close on Monday 16 November 1998 . No further applications will be accepted after that date. Greg Klein, Public Trustee of Queensland Order No. P513." Seven persons other than Catherine Bell responded to the advertisements. The Public Trustee advised these seven persons that it was necessary for them to provide written answers to five selection criteria to enable their applications to be considered. A copy of the selection criteria was sent to each applicant, and each applicant was expected to respond within seven days. That document relevantly read: " ANZAC COTTAGE N0.37 - TENANCY SELECTION CRITERIA Thefollowingare the selection criteriafor eligible applicantsfor the tenancy of -- 12 of 29 -- ") / j ) ) ') ) -- - - ------------------- 11 Anzac Cottage No. 37, at 16 Quarry Road, Alderley Brisbane 1. Documentary proof of the applicant's relationship to a Queensland serviceman who was killed while in service in W orId War I; 2. Evidence of the applicant's relationship to a previous occupant of an Anzac Cottage; 3. Personal particulars, including details of dependants (if any); 4. Details of financial circumstances - Please attach evidence of assets and liabilities and the tenant's ability to pay a market rent of $100.00 (in an 'as is' condition); and 5. Evidence to confirm that the applicant is of good character. PLEASE NOTE: Applications will not be considered by the Public Trustee unless ALL selection criteria are answered and supporting documents are provided After receipt of a response to the Selection criteria the Public Trustee may require the applicant to provide such additional information as he considers appropriate. Answers to the selection criteria MUST be submitted to the Public Trustee within 7 DAYS of the Selection Criteria being given to an applicant. No late answers to the Selection Criteria will be considered The selection of the tenant will not be made before the 23 November 1998. The decision of the Public Trustee as Trustee of the Anzac Cottages Trustee will be final. INSPECTION: The house at 16 Quarry Road, Alderley Brisbane will be open for inspection on TUESDAY 17 NOVEMBER 1998BEIWEEN 10.00AM. AND 12.00 AM. PLEASE SUBMIT YOUR WRITTEN ANSWERS TO THE SELECTION CRITERIA TO: The Official Solicitor to the Public Trustee Attention Ms K Kennedy Senior Legal Officer GPO Box 1449 BRISBANE QLD 4001" Four persons who were relatives of the last tenant Mrs Handley have applied to the Public Trustee to become tenant of No.37 and each has provided written answers to the selection criteria. The other three applicants did not submit written answers to the selection criteria and have not made any further contact with the Public Trustee in relation to the tenancy. According to the statement of facts a copy of the selection criteria was also sent to' a Mrs Patterson a niece -- 13 of 29 -- ) ) 12 of the late Mrs Handley, but Mrs Patterson did not submit a written answer to the selection criteria. The four persons who provided answers to the selection criteria were: 1. John Edward Mulcahy - a 61 year old disability pensioner who resides at Tweed Heads and who is a grandson of the first tenant ofNo.73 and her husband John Thomas Warney. 2. Victoria Mulcahy - a 35 year old resident of Victoria who is a great granddaughter of the original tenant ofNo.37. 3. Russell Mulcahy - a 37 year old Brisbane resident who is a son of the above John Edward Mulcahy. 4. Catherine Mulcahy Bell - a 40 year old resident of Trinity Beach near Cairns - her relationship to the original tenant has been set out in para.27 above. Catherine Mulcahy Bell has disputed the terms of the selection criteria but it is ) unnecessary to recite details of this dispute. ) ~) ) Attempts have been made to compromise the tenancy claims made by these four persons. The Public Trustee in its statement offacts has said: " . .. the results of the ... advertisements indicate that other than the four descendants of the original tenant there are no other persons available to become the tenant of the cottage. When the financial position of the four applicants is considered it would appear that none of them is in 'poor' or 'needy' or 'homeless' circumstances and that their desire to occupy the cottage is generated more by family history than financial need; i.e. to be the beneficiary of a charitable trust by having the Public Trustee exercise the discretion under r 8 (a) to charge less than the market rent for the cottage." The statement of facts shows the condition of the cottage is poor and that the Public Trustee's building inspector has estimated that up to $13,750 could reasonably be spent on maintenance of the cottage. If this work is undertaken the estimated rental would increase from $90 to $100 per week (the current estimate based on the present state of the cottage) to $180 to $200 per week. In the statement of facts, the Public Trustee, in addition to referring to the repeal of the Anzac Cottages and T.B. Homes Act of 1960 has pointed out that under s 38(l)(a) of the Land -- 14 of 29 -- ) J ) ) 13 Act 1994 the Governor in Council may cancel a deed of grant in trust if "the trust stops operating". In the event the Public Trustee of Queensland seeks the opinion and direction of the court as to the following questions said to arise in the course of the Public Trustee's duties as trustee of the Anzac Cottages Trust: 1. Is it necessary for the Public Trustee of Queensland as trustee of the Anzac Cottages Trust to serve any person with the within application (originating summons and statement of facts) under s 134 of the Public Trustee Act 1978? 2. What is the dominant purpose of the Anzac Cottages Trust? 3. Has the dominant purpose of the Anzac Cottages Trust been fulfilled? 4. If the dominant purpose of the Anzac Cottages Trust has been fulfilled then is the trust at an end? 5. Does the Anzac Cottages and T.B. Homes Act of 1960 (repealed) relevantly apply to the present case (which concerns Anzac Cottage No.37)? 6. Has the Anzac Cottages Trust stopped operating in terms of s 3 8( 1)( a) of the Land Act 1994. 7. Ifthe purpose of the Anzac Cottages Trust is not at an end then does the adjective "homeless" in rule l(a) of the Rules of the Anzac Cottages Committee (The Rules) apply only to widows of Queensland Service Men killed in action during the First World War or to all potential beneficiaries under r l(a) of the Rules? 8. If Anzac Cottage number 37 is let to a person under r 8(a) of the Rules, -- 15 of 29 -- ) ) ) 14 is that person entitled to claim a reduced rental? 9. Ifthe Public Trustee decides that there are two or more suitable applicants for the tenancy of the subject cottage under r 8(a) of the Rules, then is it appropriate for the Public Trustee to choose the successful applicant by the drawing of lots? 10. Two of the applicants for the tenancy of the subject cottage are not residents of Queensland. Is this a matter that the Public Trustee could consider when assessing (for tenancy purposes) the relative merits of the applicants? 11. Is the description in r 8(a) of the Rules; i.e. " ... may relet such cottage to any person whom they think fit and for such period and on such terms as they think fit" limited by the provisions of rules 5 and 6 of the rules· and in particular does the "discretion" given to the Public Trustee allow the use of, in the case of the subject cottage, the standard REIQ tenancy agreement? As to the first of these questions I should say at once that on 22 February 1999 Mr Justice Byrne of this Court ordered the relevant documents be served on the Attorney-General for the State of Queensland, John Mulcahy, Victoria Mulcahy, Russell Mulcahy and Catherine Bell. This has been done. When the matter was heard on 20 May the following persons appeared: 1. Mr J. S. Douglas QC with him Mr Koppenol of counsel for the applicant Public Trustee of Queensland. 2. Mr Morris QC with him Mr Douglas Campbell of counsel for Catherine Mulcahy Bell. 3. Mr Wilson of Counsel for the Attorney-General of Queensland. -- 16 of 29 -- ) ) ) ) " ) ) 15 4. Mr John Edward Mulcahy 5. Mr Russell Mulcahy Neither John Edward Mulcahy nor Russell Mulcahy was legally represented. Each relied on affidavits each had filed. Mr John Mulcahy expressed a desire to spend the remaining years of his life at 16 Quarry Street, a home in which he had lived as a child and Mr Russell Mulcahy's appearance was to support the claim of his father Mr John Mulcahy. Victoria Mulcahy, who resides in Victoria, was duly served with the relevant documents but she did not appear. Before I proceed further I should say that:- a) By Order in Council dated 25 September 1915 an_d published in the Queensland Government Gazette ofthe same date (Vo1.CVNo.l23) the Governor in Council directed that a War Council for the State of Queensland be constituted and that the gentlemen whose names and titles appeared in the Gazette be appointed members thereof and "that they shall have power to add to their number and to appoint subcommittees in other parts ofthe State". It appears clear that the Anzac Cottages Committee which made the above rules and which were adopted by the Queensland War Council in 1918 was a committee of the Council appointed pursuant to the power stated in the Order in Council. b) By Order in Council dated 3 November 1932 and published in the Queensland Government Gazette of 5 November 1932 (Vol.CXXXIX No.l16 p.1505) the appointments of the ten persons named therein "as members of the Queensland War Council be terminated as from the 1st November 1932." It appears that this Order in Council has been treated as terminating the War Council for the State of Queensland and I do not propose to query that view. At the time of each of the orders in Council of 1915 and 1932 the then Premier of Queensland appears to have -- 17 of 29 -- ) j 16 been a member of the Council. As the War Council for the State of Queensland ceased to exist on 1 November 1932 then as the Anzac Cottages Committee was a creation of the War Council, that corn.mittee ceased to exist from the same date. One consequence of this was that any powers or discretions vested in the Anzac Cottages Committee by the rules could no longer be exercised by the Committee (see for example rule 5 line 3). I add also that as at 19 May 1999 the balance of the funds held by the Public Trustee in the Anzac Cottages Trust was $716,661.89. ) I turn now to the remaining questions asked. ) ') j Question 2 - What is the dominant purpose of the Anzac Cottages Trust? There is no dispute that the Trust is a charitable one as it falls within the fourth class of charity set out by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel (1891) AC 531at p 583 in that it is a trust for a purpose beneficial to the community and not falling within the preceding three classes named by his Lordship. Mr Morris QC has referred me to the following comments of Starke J in Barby v Perpetual Trustee Company Limited (1937) 58 CLR 316 at p 323: "This gift is charitable because it is for the benefit of a class or persons selected from the public namely returned soldiers their widows and descendants and though it is restrictive in some respects by their "necessity" and in other respects by the place in which they were born and so forth that does not at all affect the main proposition that it is for the benefit of a class of persons selected from the public. " This question must be considered against the backdrop that the Trust displays a general charitable intention. It requires interpretation ofr.1(a) of the Rules because this rule sets out the objects of the Anzac Cottage Committee which had been adopted by the War Council. I should add that I ignore the definition of "eligible person" in The Anzac Cottages and T.B. Homes Act -- 18 of 29 -- ) ) ) ) ) ) 17 of 1960 because that Act has been repealed. The first purpose of the Trust was to acquire suitable areas of land and to make arrangements to erect cottages on those areas of land. The occupancy of those cottages was proscribed byr.l(a). The cottages were to be occupied by "homeless widows or other female dependants or descendants of persons who have enlisted in Queensland for Military or Naval service with His Majesty's forces" in World War 1 lIand have died while in such service or other persons as provided in 8(a)lI. I ignore for the time being r.8(a). The meaning of the words "homeless" and "descendants" in r.1(a) require interpretation. In argument before me it was submitted that:- a) "homeless" qualifies only widows and does not qualify "other female dependants or descendants ... " b) "descendants" should be given its usual meaning namely children, grandchildren and other issue of every degree of remoteness in descent. As to the first of these matters it is my view that "homeless" qualifies each of the class of persons described in r.1(a) that is, the word qualifies each of "widows", "other female dependants or descendants". That this is so appears to me to be really beyond dispute considering the prime object in r.1 ( a) was to acquire land and erect on the land cottages for occupation. The intention of the rules was that the cottage was to be occupied by a homeless person who came within one of the named categories - a) widow; b) other female dependants; or c) other female descendants -- 19 of 29 -- \ J ) ) ) ) 18 of a person who had enlisted in Queensland for Military or Naval service with His Majesty's forces in World War I and had died while in such service. I add that in my view "female" qualifies both "dependants" and "descendants". I shall shortly discuss the concluding words of rule l(a) - "or other persons as provided in 8(a)". I add in passing that in my view the advertisement referred to in paragraph 32 ante failed to address the criterion "homeless". As to the word "descendants" and ignoring for the time being the word II female II , I agree with submissions made before me that it was intended to refer to "children, grandchildren and other issue of every degree or remoteness in descent" (see Halsbury 's Law of England (4th ed.) Vo1.50 para. 121 and cases there cited). I refer also to the decision of the Court of Appeal in Ralph v Carrick (1879) 11 Ch.D 873 at p.883 where Brett LJ said:- "'Descendants' means children and their children and their children to any degree." InRe: Hickey (1927) VLR 555 at p.559 McArthur J adopted the following statement from Jarman on Wills (6th ed) p.1587:- "A gift to 'descendants' receives a construction answering to the obvious sense of the term - namely as comprising issue of every degree." However, as I have already said, in my view II female II in Rule l(a) qualifies "descendants". I tum now to the following words at the end r.1(a):- "". or other persons as provided in 8(a)." Rule 8(a) has been set out above. It provides for the situation which arises on the termination by death or from any other cause of any tenant's occupancy of an Anzac Cottage and empowers the Committee to re-Iet the cottage. The power in the Committee to re-Iet as stated in 8(a) is "on the terms set forth in rules 5 and 6 hereof' and rule 8(a) states that the reletting is to be lito a widow or female dependant or descendant of a deceased Queensland Soldier (as -- 20 of 29 -- ) j ) ~~~- ~-~~ - .-~- .~-~~ ~ 19 described in Rule 1(a) hereof)" Rule 8 in describing the classes of persons to whom the cottage may be relet in effect repeats rule 1(a) and Rule 5 does the same. Neither rule 8 nor rule 5 extends the classes of occupants. The governing rule in identifying the classes of occupants of an Anzac Cottage is rule 1(a). The words "or other persons as provided in 8(a)" effectively add nothing. I answer Question 2 as follows: "The dominant purpose of the Anzac Cottages Trust was, by the acquisition of land and the building of cottages thereon to provide those cottages to be occupied by homeless widows or homeless other female dependants or homeless female descendants of persons who had enlisted in Queensland for military or naval service with His Majesty's forces in World War I and who had died while in such service." Question 3 - Has the dominant purpose of the Anzac Cottages Trust been fulfilled? It will be apparent that in light of the construction which I have placed on the word "descendants" in r: 1(a) there must now, over 80 years after World War I ceased be probably a very large ifnot incalculable number offemale descendants of persons who enlisted in Queensland ) for military or naval service with Kil1 g George V's forces in World War I and who died while in such service. ) '\ For anyone or more of those persons to qualify as eligible to occupy No 37 each such J person must be homeless. I do not deem it necessary to discuss here exactly what was intended by the use of the word "homeless". Suffice to say it would appear to have meant a person who had no dwelling house or residence or permanent abode. (See definition of "homeless" in Shorter Oxford English Dictionary on historical principles.) The evidence before me shows that none of Mrs Bell, Mr Mulcahy and his son is homeless and therefore none is eligible to occupy No 37. As I said at para 10 ante the definition of "eligible person" in The Anzac Cottages and T.B. Homes Act of 1960 was wide enough to encompass each of these three people because each is a -- 21 of 29 -- ) ) ) ) 20 descendant of Mrs Warner. For reasons already stated that definition is inapplicable to the present case and cannot assist the would be occupants. It is possible that there are somewhere in Australia and the wider world persons who would be eligible to apply to occupy No 37. I see no reason to place any geographical limit on the present whereabouts of possible eligible occupants of No 37. The Rules place no such limit or restriction. To locate, or attempt to locate, that person or those persons in respect of the last of 52 Anzac Cottages would in my view probably be an expensive exercise for the Public Trustee as trustee of the Anzac Cottages Trust and deplete the Trust's cash assets. Apart from No 37 the assets of the Trust are not large and there is no suggestion that No 37 is a very valuable property. The situation at present is in my view covered by dicta of Lord Wilberforce in McPhail v Doulton (1971) AC 424 in a passage discussed in "Jacobs Law of Trust in Australia" (6th ed.) by Justices Meagher and Gummow. At paragraph 258 of their work their Honours say: "As has been seen, the majority of the House of Lords in McPhail v Doulton decided that, as far as the identification of beneficiaries is concerned, the test of certainty - the so called "criterion certainty" - is the same: one must be able to say with assurance whether any given individual does or does not qualify to be a beneficiary. However, in that case Lord Wilberforce also foreshadowed that trust powers (but not mere powers) had to satisfy an additional requirement, namely, that they must form members of a "loose class". This is the so-called "class - certainty" requirement. His Lordship envisaged a case where "the meaning of the words used is clear" (i.e. criterion certainty exists) "but the definition of beneficiaries is so hopelessly wide as not to form "anything like a class" so that the Trust is administratively unworkable or ... one that cannot be executed. His Lordship suggested that a trust power in favour of "all the residents of Greater London might well fall on this ground". Although his Lordship did not advance any reasons to justify this view, there is much to justify it both on authority and in principle." In the present case the "criterion certainty" exists in the Anzac Cottages Trust at least so far as it concerns female descendants. But, given the lapse of time since the end of World War I, the definition offemale descendants has, to adopt the words of Lord Wilberforce, become "so -- 22 of 29 -- ) 21 hopelessly wide as not to fonn anything like a class" (1971 AC at p 457) so that the Trust, at least so far as concerns Cottage No 37, is administratively unworkable. In my view, it cannot be said in respect of Cottage No 37 that the dominant purpose of the Anzac Cottages Trust has been fulfilled. The question is not directed to Cottage No 37 only. It is far wider than that. Given the historical facts that there were 51 other Anzac Cottages which were treated as Cottages subject to the Anzac Cottages Trust and these cottages have since been sold free of the Trust and pursuant to a statutory power of sale (which no longer exists) and given that there is no suggestion that the funds of some $716,000 arising from sale of those other cottages be reinvested in Anzac Cottages, I answer this question as follows: 11 Save for Cottage No 37, the dominant purpose of the Anzac Cottages Trust has been fulfilled. 11 Question 4 - If the dominant purpose of the Anzac Cottages Trust has been fulfilled then is the Trust at an end?" For the reasons I have just given in answering Question 3 it is not possible to say that the ) Trust is at an end. I fail to understand how a charitable trust such as this can be regarded as coming t6 an end, if by 11 end 11 is meant fail. The rule against perpetuities does not apply to 'I ) charitable trusts. It is true to say that so far as concerns the 51 sold cottages the dominant purpose of the trust has come to an end but it does not follow that the Trust in respect of the proceeds of sale of those cottages has thereby ended. I shall shortly discuss the "cy-pres"! principle and its application to the present case. The Trust has assets which include the last cottage. At the present time putting the dominant purpose into effect has become quite unworkable for reasons which I have given. I heard argument centring on Rule 8(a) which empowered the Anzac Cottages Committee, on the termination by death or from any other cause, of any tenant's occupancy of a cottage to -- 23 of 29 -- 22 re-let such cottage on the tenns set forth in r.5 and r.6 to a person as described in Rule 1(a)of the Rules. The rule provided that this power is to be exercised by the Committee but that Committee ceased to exist in 1932. Rule 4 recognised the Committee's power to give such directions to the Public Curator (as he then was) as might be necessary for carrying out the objects of the Anzac Cottages Trust. Rule 5 empowered the Public Curator to permit a person who fell within the description of persons in rule l(a) and who should have been nominated by the Committee in that behalf, to occupy such one of the cottages as the Committee might direct with certain conditions ] or provisos set out in rule 5 and to which it is unnecessary to refer. A further proviso to r.5 empowers the Public Trustee, if the Committee ceased to exist, ) to fix the rent of the cottage in certain circumstances. The Committee, as I have said, had certain powers including nominating a properly qualified person to occupy an Anzac Cottage (r.5). It appears from the history given, that since 1932 the Public Curator, and later on the Public Trustee, has exercised powers given to the former Committee. Mr Morris QC who appeared for Mrs Bell has submitted that the scheme envisaged by the ) Rules is workable if the Governor-in-Council, operating under r.9 of the Rules, in effect J reconstitutes the Anzac Cottage Committee. In my view such a course shows just how unworkable the scheme has become. First, the Committee was the creature of the Queensland Council of War, secondly that Council ceased to exist in 1932 and the Committee, being its creation, disappeared with it. Short of creating a new Committee it appears to me that it is impossible for the Governor-in-Council to fill a vacancy in a non existing Committee. 5 The plain facts are: 1. The Anzac Cottages Trust assets consist of one cottage and in excess of $716,000 in funds; -- 24 of 29 -- ") ) ) ) ') ) 23 2. None of the present applicants is "homeless" and therefore none is eligible to be considered as a prospective tenant of No 37; 3. For the Public Trustee now to locate or attempt to locate a person eligible to become tenant of No 37 will in my view require him to follow an expensive and impractical course. In my view, although fulfilment of the dominant purpose is impractical and unworkable the Trust is not at an end. It is at a stage where I consider an application by the Public Trustee for the property subject to the Anzac Cottages Trust to be applied cy pres is, to say the least highly desirable. This is a matter which was raised by both Mr Douglas QC and Mr Wilson (who appeared for the Attorney-General) and I shall deal with it in considering question 6. I answer Question 4 "No". Question 5 - Does the Anzac Cottages and T.B. Homes Act [oD 1960 (Repealed) relevantly apply to the present case which concerns Anzac Cottage No 37? This Act was repealed by the Lands Legislation Amendment Act 1992 sA, Schedule 2. The purpose of the 1960 Act was to enable the Public Curator to sell the fee simple of any land granted to him upon trust as a site for an Anzac Cottage or a T.B. Home absolutely freed and discharged from such Trust. One of the circumstances in which he could apply to the relevant Minister for permission to sell an Anzac Cottage was when the cottage had become vacant and there was not, so far as the Public Curator could discover, any eligible person available to occupy it (s. 3 of the 1960 Act, paragraph (b)). If such a sale were approved and made, s 5 of the Act required the Public Curator to credit the nett proceeds of the sale to an account kept by the Public Trustee with respect to Anzac Cottages and called the "Anzac Cottages Maintenance Account" and use the same in and towards the repair,'maTritenance and upkeep of Anzac Cottages. It is argued that by virtue of the repeal of the 1960 Act the power of sale given in s.3 of the 1960 Act -- 25 of 29 -- ) ) ) 24 has disappeared and has not been preserved by either ss. 20 or 20A of the Acts Interpretation Act 1954. This argument appears to me to be correct; however I do not propose to spend a deal of time in further considering this argument because, as will shortly be seen, it is my view that the Anzac Cottages Trust should be made the subject of an application cy pres under s. 105 of the Trusts Act 1973. I answer this question "No". Question 6 - Has the Anzac Cottages Trust stopped operating in terms of Section 38(1)(a) of the Land Act 1994? s 38(1)(a) reads: "38(1). The Governor in Council, by Gazette Notice may cancel a deed of grant in trust if- (a) the trust stops operating." I note that by s 38(2) the Governor in Council before cancelling a deed in trust may ask the Land Court for a decision "on a matter mentioned in sub s 38(1)(a)." Consistently with the answer given to Question 4 the answer to this question must be ) "No". In my view s. 105 of the Trusts Act 1973 applies to the present case. That section relevantly reads: "105(1)Subject to sub-section (2), the circumstances in which the original purposes of a charitable trust can be altered to allow the property given or part of it to be applied cy pres shall be as follows - (a) where the original purposes, in whole or in part - (iii) cannot be carried out according to the directions given and to the spirit of the trust" (e) where the original purposes, in whole or in part, have, since they were laid down- (iii) ceased in any other way to provide a suitable and effective method of using the copy available by virtue of the trust, regard being had to the spirit of the trust:" -- 26 of 29 -- )) / ) ) " I J ~ ---~ ---- -_._------ 25 (2) Sub-Section (1)shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy pres, except insofar as those conditions require a failure of the original purposes. (3) References in sub-sections (1) and (2) to the original purposes of a trust shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable. (4) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy pres, to secure its effective use for charity by taking steps to enable it to be so applied. " In my view the above sub sections 105(1)(a)(iii) and (e)(iii) apply to the present case. Sub section (4) imposes a duty on the present applicant and in my view, in the circumstances of this case, it is a duty which the applicant Public Trustee should discharge. Section 105 states in statutory form the cy pres doctrine. In "The Law and Practice relating to Charities" by Hubert Picarda (published in England) the author says (at p 219): "The doctrine of cy-pres is one of cardinal importance in the law of charities both in this country and in other jurisdictions which have received thetrust concept. There have been many attempts to define the doctrine, mostly by way of description of its application. Subject to the substitution of "paramount intention" for "more general intention" and "paramount charitable intention" for "general charitable intention", the most satisfactory modern formulation is a transatlantic one: Ilf property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the tryst will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlorl." The last quoted pas·sage is from Restatement of Trusts (2d) s 399 and it illustrates in clear language why the Anzac Cottages Trust will not fail because it has become impracticable to carry -- 27 of 29 -- ) ) ) ~~- -~~ ~~ -~-~---- 26 out the purpose of the Trust. I should add that Mr Picarda cites authorities for statements made in the above quoted extract from his book. In respect of s 105 Mr Wilson submitted that the applicant Public Trustee ought to be granted the opportunity to consider the answers to the questions which I have now given and, if the Trustee so decides, to make an application for cy pres administration within a period of say 28 days. I shall hear from the parties on this point. I answer this question "No". Question 7 - If the purpose of the Anzac Cottages Trust is not at an end then does the adjective "homeless" in Rule l(a) ofthe Rules of the Anzac Cottages Committee (the Rules) apply only to widows of Queensbmd servicemen killed in action during the first World War or to all potential beneficiaries under Rule l(a) of the Rules? For reasons I have already given in answering Question 2, I answer by saying that "homeless" governs each of"widows, other female dependants or descendants" described in Rule l(a). Question 8 -If Anzac Cottage No 37 is let to a person under Rule 8(a) of the Rules, is that person entitled to claim a reduced rental? I find it unnecessary to answer this question. Question 9 - If the Public Trustee decides there are two or more suitable applicants for the tenancy of the subject cottage under Rule 8(a) of the Rules, then is it appropriate for the Public Trustee to choose the successful applicant by the drawing of lots? I find it unnecessary to answer this question. In the event stated in the question, the Public Trustee has a discretion to exercise. How he exercises it is a matter entirely for him. I do not believe I should answer the question which is a hypothetical one (see Re: O'Sullivan (1969) Qd R 516). I draw to the Public Trustee's attention the provisions of s 8 of The Trusts Act 1973. -- 28 of 29 -- -~-------- ---------------- ---- --------------- ------------------~---- - ) ) ) ) 'I j ;"1 <,"I 27 Question 10 - Two of the applicants for the tenancy of the subject cottage are not residents of Queensland. Is this a matter that the Public Trustee could consider when assessing (for tenancy purposes) the relative merits of the applicants? Although it is technically unnecessary to answer this question I would answer it "No". The Rules say nothing about the place of residence of eligible persons. Question 11- Is the discretion in r. 8(a) of the Rules: i.e. " ... may re-Iet such cottage to any person whom they think fit and for such period and in such terms as they think fit" limited by the provisions of Rules 5 and 6 of the Rules and in particular does the "discretion" given to the Public Trustee allow the use of, in the case of the subject cottage, the standard REIQ Tenancy Agreement? I find it is unnecessary to answer this question and I say that because of the answer I have given to Question 6. However, I add that in my view the choice of an appropriate form of tenancy agreement is a matter for the Public Trustee. Costs On this aspect, I heard argument. The parties appearing before me were reasonably brought to court by the applicant Public Trustee. In my view each party should have his and her costs paid out of the Anzac Cottages Trust fund. I order that the costs of all parties appearing before me of and incidental to this motion be taxed as between solicitor and own client and paid out of the funds held in the Anzac Cottages Trust. -- 29 of 29 --