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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
The Corporation of the Trustees of the Roman Catholic Queensland Regional Seminary v Attorney-General for the State of Queensland & Anor  QSC 67
THE CORPORATION OF THE TRUSTEES OF THE ROMAN CATHOLIC QUEENSLAND REGIONAL SEMINARY
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
AUSTRALIAN CATHOLIC UNIVERSITY LIMITED
ACN 050 192 660
BS No 689 of 2020
Supreme Court at Brisbane
Orders made on 24 March 2020, reasons delivered on 9 April 2020
24 March 2020
The Trust declared by the Deed of Trust dated 11 April 1939, being Exhibit “A” to the joint affidavit of John Alexius Bathersby, Raymond Conway Benjamin, James Foley, Brian Heenan and William Martin Morris filed 19 April 2000, as varied by the Order of this Honourable Court dated 10 May 2000, be further varied in accordance with the scheme referred to in the agreement between the Corporation of the Trustees of the Roman Catholic Queensland Regional Seminary and Australian Catholic University Limited ACN 050 192 660 dated 16 February 2018 and titled “Deed of Variation of Relationship Deed - Banyo Land Cy-Pres Scheme”, being exhibit “D” to the affidavit of James Joseph Nyland.
CHARITIES – CHARITABLE GIFTS AND TRUSTS – WHEN APPLIED CY-PRES – GENERALLY – where the applicant is the trustee of a trust established for charitable purposes – where the applicant applied for orders pursuant to ss 105 and 106 of the Trusts Act 1973 that the trust deed be further varied – where the applicant and the second respondent signed a deed of variation redefining the boundaries of the land and setting out new arrangements concerning the management of certain shared facilities – where both the applicant and the second respondent urged the approval of the deed of variation – where the first respondent does not oppose the application – where the deed of variation requires approval by the court – whether the trust deed has ceased to provide a suitable and effective method of using the trust property and the deed of variation ought to be approved
Attorney-General Act 1999, s 7
Trusts Act 1973, s 105, s 106
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, cited
D de Jersey QC for the applicant
A McCabe for the first respondent
G Gibson QC for the second respondent
Thynne & Macartney for the applicant
GR Cooper, Crown Solicitor for the first respondent
Mills Oakley for the second respondent
- The applicant is the trustee of a trust established for charitable purposes. It applied for orders pursuant to ss 105 and 106 of the Trusts Act 1973 that the trust deed by which the trust was constituted and had been varied in 2000, be further varied.
- On 24 March 2020, I made the following order:
“The Trust declared by the Deed of Trust dated 11 April 1939, being Exhibit “A” to the joint affidavit of John Alexius Bathersby, Raymond Conway Benjamin, James Foley, Brian Heenan and William Martin Morris filed 19 April 2000, as varied by the Order of this Honourable Court dated 10 May 2000, be further varied in accordance with the scheme referred to in the agreement between the Corporation of the Trustees of the Roman Catholic Queensland Regional Seminary and Australian Catholic University Limited ACN 050 192 660 dated 16 February 2018 and titled “Deed of Variation of Relationship Deed - Banyo Land Cy-Pres Scheme”, being exhibit “D” to the affidavit of James Joseph Nyland.”
- The application concerns a large parcel of land at Banyo (the Banyo land).
- That land was acquired by the applicant as trustee and held on trust pursuant to a trust deed executed on 11 April 1939. By the terms of the trust deed:
“The trustees are a body of trustees which is constituted by those persons who from time to time hold the position of Archbishop, Bishop, Vicar-Capitular or Administrator of a diocese or archdiocese of the Roman Catholic Church.
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 …”
- In order to fulfil the objects of the trust, the Banyo land was acquired and a seminary was constructed. That included a 160 room residential college.
- The residential college was necessary because of the way the Roman Catholic Church, at that stage, trained its priests. It adopted “the monastic model” whereby students were withdrawn from the general community and lived and studied at the seminary.
- Times changed. The monastic model was overtaken by a model whereby Seminarians resided not in the seminary but resided in the general community and would attend the seminary for theology classes.
- By the mid-1990s, few Seminarians were studying at the seminary. The site, while being extremely valuable, was draining the other resources of the trustees.
- This led to the trustees initiating a task force which ultimately made a series of recommendations as to how the site could be better utilised.
- Ultimately the trustees resolved that the second respondent should utilise part of the land to establish and run a university. That plan though required a variation of the trust deed.
- On 29 February 2000, the applicant and the second respondent entered into a deed headed “Relationship Deed: Banyo Land Cy Près Scheme”. By the terms of the Relationship Deed, the second respondent would occupy about 90 per cent of the Banyo site. That area to be occupied by the second respondent was called in the Relationship Deed “the Cy Près Land”. All the land would remain in the ownership of the applicant. The second respondent would pay money to the applicant, maintain the site and pay outgoings.
- Of some significance are Recital F and clauses 5, 6, 22, 24 and 45 of the Relationship Deed:
“F. The University and the Corporation have agreed, subject to the approval of the Supreme Court of Queensland, that the University should establish and operate on the Cy Près Land as part of the mission of the Roman Catholic Church, a public university in accordance with the beliefs, traditions, practices and canonical legislation of the Roman Catholic Church as provided for herein so as to facilitate, where reasonably possible, educational arrangements that will be of benefit to the Seminary/Theologate conducted by The Corporation.
- Purpose of the Trust
The Corporation will hold the Cy Près Land to the use of the University UPON TRUST for the carrying on by the University upon the Cy Près 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.
- Full Enjoyment
Subject to this Declaration of Trust, the University shall have the full enjoyment, use and quiet possession of the Cy Près Land for the purpose specified in clause 5 and Recital F hereof.
- Common Usage of Sports and recreation Facilities
The Corporation and University agree that while this agreement subsists the Corporation and all authorised persons using the Seminary/Theologate Site shall have a licence to use the sports and recreation facilities within the Cy Près Land but so as not to cause any unreasonable disruption to the University’s use and enjoyment of the said sports and recreation facilities.
- Sharing of Facilities
- (a)The Corporation and the University agree that it is the parties’ intention to implement mutual arrangements for access to the teaching facilities of each of the University and the Seminary/Theologate together with the establishment of ethical and fair procedures to ensure ongoing liaison between the management of both institutions and any necessary and reasonable sharing of financial charges and common facilities for the contiguous properties including entrance and signage arrangements and those facilities referred to in clauses 20, 21 and 22 hereof and the art collection referred to in the clause 23 hereof. It is acknowledged that the Corporation and persons authorised by it, shall be entitled to use the Chapel, art collection, library and recreational facilities.
- (b)The Corporation and the University shall establish a Liaison Group (of which there shall be two (2) appointees on the part of the Corporation and the University respectively) and the said Liaison Group shall regularly endeavour in good faith to reach agreement and review any agreement reached when considered necessary on all necessary issues to the attainment of the mutual arrangements and matters referred to in clause 24(a) above and in the event that the parties are unable to reach agreement on any issue the Corporation and the University agree to endeavour in good faith to settle the issue of difference by mediation and if no agreement is reached, by expert determination as provided for in clause 35 hereof.
- Approval of the Supreme Court of Queensland
The parties agree that the provisions of the within Cy Près scheme shall not become effective or be binding on the parties until the within agreement has been approved by the Supreme Court of Queensland.”
- Pursuant to cl 45 of the Relationship Deed an application was made for this court’s approval of the variation of the original deed. That came before White J (as her Honour then was) who approved the variation. In doing so, her Honour observed “… that there is some coincidence of goals between the proposal and the existing trust”. Her Honour observed that the objects of the second respondent as recorded in its Memorandum of Association, included “… to foster and promote education, scholarship and research and through the education programs of the University provide and promote preparation and continuing development of persons inspired by Christian principles who will be capable of assuming positions of responsibility in the church and in society …”. Her Honour acted under s 105(1)(e)(iii) of the Trusts Act (to which I shall later refer) and approved the variation.
- Perhaps unsurprisingly, the needs of both the applicant and the second respondent changed. It was resolved that the applicant would build a new seminary on part of the land occupied by the second respondent and that the second respondent should occupy some of the land previously occupied by the seminary. That land was to be used for sports ovals. A new seminary was constructed in 2007 and 2008.
- By a deed entitled “Deed of Variation of Relationship Deed - Banyo Land Cy Près Scheme”, made on 23 January 2018 (the deed of variation), the applicant and the second respondent varied the Relationship Deed in two respects. Firstly, the boundaries of the land occupied by the second respondent and the land occupied by the applicant were redefined giving effect to the development which has and is to take place. The result is that the area of the land occupied by the applicant increases. Secondly, there are new arrangements concerning the management of certain shared facilities, the chapel, the library, the seminary art collection and the sports and recreational facilities. These are very much machinery provisions governing the interrelationship between the university and the seminary.
- The deed of variation requires the approval of the court.
Consideration of the application
- Sections 105 and 106 of the Trusts Act provide as follows:
“105 Occasions for applying property cy pres
- (1)Subject to subsection (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—
- (i)have been as far as may be fulfilled; or
- (ii)can not be carried out; or
- (iii)can not be carried out according to the directions given and to the spirit of the trust;
- (b)where the original purposes provide a use for part only of the property available by virtue of the trust;
- (c)where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the trust, be made applicable to common purposes;
- (d)where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to the spirit of the trust, or to be practical in administering the trust;
- (e)where the original purposes, in whole or in part, have, since they were laid down—
- (i)been adequately provided for by other means; or
- (ii)ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or
- (iii)ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.
- (2)Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy pres, except in so far as those conditions require a failure of the original purposes.
- (3)References in subsections (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.
- (5)Nothing in this section shall affect the application of the provisions of the Charitable Funds Act 1958 to the funds to which that Act applies.
106 Proceedings in case of charitable trust
- (1)The court may upon application under this section by an order in respect of any charitable trust—
- (a)give directions in respect of the administration of the trust; and
- (b)require any trustee to carry out the trust, or to comply with a scheme (if any); and
- (c)require any trustee to satisfy the trustee’s liability for any breach of the trust.
- (2)An application under this section may be made—
- (a)by the Attorney-General or person authorised by the Attorney-General; and
- (b)by the charity, or any trustee of the trust; and
- (c)by any person interested in the due administration of the trust.
- (3)Notice of the application shall be given to the Attorney-General, and to the trustee of the trust and to such other person as the court directs.
- (4)On any such application the court may make such order as to costs and otherwise as may be just.
- (5)In this section—
charitable trust means any property held in trust for a charitable purpose.
charity means any institution, whether or not incorporated, which is established for charitable purposes.”
- Both the applicant and the second respondent urged the approval of the deed of variation. The Attorney-General was given notice of the application pursuant to s 106(3) and is the first respondent.
- Charitable trusts are those that exist for charitable purposes, or in other words, exist for the benefit of the community or some part thereof. Section 106 of the Trusts Act recognises the role of the Attorney-General as does s 7 of the Attorney-General Act 1999. Section 7 provides, relevantly here:
“7 Specific powers
- (1)The Attorney-General may do the following—
- (b)enforce charitable and pubic trusts …”
- Here, the Attorney-General does not oppose the orders sought by the applicant and second respondent.
- In seeking approval, the applicant and the second respondent rely upon s 105(1)(e)(iii). A fairly liberal approach has been taken to the construction of that subsection. In The Congregation of the Religious Sisters of Charity of Australia & Ors v The Attorney-General in and for the State of Queensland, Martin J described the operation of the subsection in this way:
“ Section 105 of the Trusts Act liberalises the law which previously applied to charitable trusts. Under that section it is no longer necessary to establish that actual compliance with the original terms of the trust is impossible, rather it is now sufficient that an applicant demonstrate that the original terms have ceased to provide a suitable and effective method of using the trust property.”
- The starting point here is the decision of White J approving the Relationship Deed in 2000. The question there was whether the trust as constituted in the original trust deed had “ceased … to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust”. When her Honour answered that question in the affirmative, then the question arose as to whether use of part of the land as a university was an appropriate cy près scheme. Her Honour answered the second question affirmatively, perhaps unsurprisingly. The trust was set up for educational purposes, namely the education of priests. The university is an educational institution and indeed teaches theology. The university is one that operates consistently with the Roman Catholic ethos. By the time of her Honour’s order, the Banyo site was chronically underutilised and the limited activity being conducted on it did not justify the expenditure required to maintain it.
- The current application seeks no more than approval of a variation of the scheme approved in 2000 by White J. The applicant and the first respondent have together sought to identify the best way to use the site as a seminary and university. In the light of the growing and changing demands of the two enterprises being conducted there, the trust deed, as varied by the Relationship Deed, has ceased to provide a suitable and effective method of using the trust property. The variation agreement puts into place a scheme for the effective and suitable use of the land.
- It was therefore appropriate to make the orders which were made on 24 March 2020.
Re the Banyo Seminary Trust, unreported, Supreme Court of Queensland, White J, 10 May 2010.
The second respondent.
Re the Banyo Seminary Trust, unreported, Supreme Court of Queensland, White J, 10 May 2010.
Trusts Act 1973, s 106.
See generally, Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 258.
 QSC 100.
At  and see also Re Anzac Cottages Trust  QSC 175. And see also The Cram Foundation v Corbett-Jones  NSWSC 495 at .
Varsani v Jesani  Ch 219.
At 230, followed in Re Anzac Cottages Trust  QSC 175 and The Congregation of the Religious Sisters of Charity of Australia & Ors v The Attorney-General in and for the State of Queensland  QSC 100.
The Congregation of the Religious Sisters of Charity of Australia & Ors v The Attorney-General in and for the State of Queensland  QSC 100.
- Published Case Name:
The Corporation of the Trustees of the Roman Catholic Queensland Regional Seminary v Attorney-General for the State of Queensland & Anor
- Shortened Case Name:
The Corporation of the Trustees of the Roman Catholic Queensland Regional Seminary v Attorney-General for the State of Queensland
 QSC 67
09 Apr 2020