Bishop, Re [1992] QSC 330

"""''/-->..::>o State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is Yested in the CrOVt11. Copies thereof must not be made or sold vdthout the VtTitten authority of the Direc~or, State Reporting Bureau.) · · ' ·•· REViSED COPIES ISSUED. State Reporting Bureau Date /ff I j I ·/ eh SUPREME COURT CIVIL JURISDICTION· - I • HELMAN Aj OS No 802 of 1992 IN THE MATTER OF THE TRUSTS ACT 1973-1990 and IN THE MATTER OF THE RULES OF THE SUPREME COURT . and IN THE MATTER OF THE CHARITABLE TRUSTOF WHICH KENNETH.ROBERT BISHOP IS THE TRUSTEE BRISBANE ... DATE 28/08/92 JUDGMENT 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 5 -- 280892 HIS HONOUR: The applicant, Kenneth Robert Bishop, applies to the Court for the following relief: (1) A determination upon what trusts and for what purposes moneys deposited with Westpac Savings 10 Bank Limited at its Mt. Gravatt Branch in account number 90017 4 in the name of the Memorial Association of Mt. Gravatt, to which the applicant is the sole signatory, are presently held. (2) A determination whether such moneys are presently held upon trust for purposes described in a certain Nomination of Trustees between John Johnstone Spence as settlor and John Johnstone Spence, Christoph Friederich Anger and Heinrich August Carl Kluver as trustees dated 14 December 1922 and/or for those purposes described in a certain Nomination of Trustees between The Salvation Army (Queensland) Property Trust as settlor and Robert Palmer, John Albert Ian Stokes, John Agnew, Kenneth Robert Bishop and John Norman Quinn-Sunberg as trustees dated 2 July 1956. ( 3) Whether such moneys ought to be applied cy-pres for a purpose analogous to those described in the said Nominations of Trustees. (4) An order that by way of scheme the said moneys be paid to the Mt. Gravatt Showgrounds Trust to be 2 JUDGMENT 20 30 40 50 60 -- 2 of 5 -- 280892 held by it on trust for the erection of a Mt. Gravatt Memorial Show Hall. (5) An order that the applicant's costs of and incidental to this application be taxed on the 10 solicitor and own client basis and be paid out of the said moneys. ( 6 ) Such further or other order as to the Court may seem meet. The evidence before me shows that the applicant is the sole signatory of the Westpac Savings Bank Limited account to which I have referred, and that on 19 August 1992 the balance of the account, inclusive of interest to that date, was $113,870.24. The applicant joined the association in 1953 and his wife joined in 1956. They are the only surviving members. The applicant became the honorary secretary in 1958, after having been the assistant honorary secretary for several years. By a nomination of trustees between John Johnstone Spence as settlor and John Johnstone Spence, Christoph Friederich Anger, and Heinrich August Carl Kluver as trustees dated 14 December 1922, thirty-two perches of land in Logan Road, Mt. Gravatt were transferred to the trustees - 3 JUDGMENT 20 30 40 50 60 -- 3 of 5 -- 280892 "Upon trust for the erection of a memorial hall thereon according to plans and specifications approved by the Memorial Association of Mt. Gravatt with full power to the Trustees to lease, mortgage or otherwise deal with the said land and improvements thereon as the said Memorial Association of Mt. Gravatt shall by resolution of members from time to time direct provided always that if the erectionof the said hall shall not be completed by the first day of January 1924 or substantial progress made therewith within that.period the said trustees shall be at liberty to reconvey the said land to the transferror." By a nomination of trustees between the Salvation Army (Queensland) Property Trust as settlor and Robert Palmer, John Albert I an Stokes, John Agnew, John Norman Quinn-Sunberg and the applicant as trustees dated 2 July 1956, adjoining land was transferred to the trustees: "Upon trust for the use thereof in conjunction with the Memorial Hall erected on adjoining land according to the plans and specifications approved by the Memorial Association of Mt. Gravatt with full power to the Trustees to lease, mortgage or otherwise dealwith the said land and improvements thereon ought to be erected thereon as the said Memorial Association of Mt. Gravatt shall by resolution of amendments from time to time direct." The hall was completed in 1923. In 1959 all of the land was sold and the proceeds paid to the Association. The hall building was sold for removal. On 26 February 1969 the Association resolved "in principle" that it should be wound up when a suitable recipient could be found for its assets, and that in the meantime it should continue its policy in assisting local organizations. The Association had its last general meeting in 1975. All that remains of its assets is the credit balance in the account at the Westpac Savings Bank Limited . That sum is not enough to erect a public hall, for which no doubt it would be necessary to acquire 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 5 -- 280892 new land. On the evidence before me I conclude that the applicant holds the moneys deposited in the name of the Association at the Westpac Savings Bank Limited at its Mt. Gravatt Branch for the purposes described in the nomination of trustees dated 14 December 1922 and the purposes described in the nomination of trustees dated 2 July 1956. Those purposes were charitable (see, e.g., Monds v. Stackhouse & Ors (1948) 77 CLR 232). The purposes were fulfilled and now cannot be carried out. The property in question therefore should be applied cy-pres for a similar charitable purpose (see the Trusts Act 1973 as amended, s.105(1)(a)). This is a case of a charity's ceasing to be practicable after it has taken effect, so it is not necessary to show a general charitable intention in the original donors {see Ford and Lee, Principles of The Law of Trusts, 2nd ed. 1990, para. 2029, p.916.) I shall therefore allow time for the preparation of a scheme for the application of the funds. I shall make an order as in the draft that was handed up yesterday, with necessary alterations. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 5 --