Chin Kwun Kwong v Dennis Ming Chung Low

These proceedings concern the Sze Yup Kwan Ti Temple in Glebe (“the Temple”). In 1897, a trust (“the Trust”) arose by way of donations made by members of the public and the trustees attempted to record its terms in a deed dated 1 July 1897 (“the Trust Deed”). All of the land on which the Temple is situated is held by the Trust. The Plaintiff is one of the trustees of the Trust. The Defendants are all of the other current trustees of the Trust.

These proceedings commenced after disputes had arisen between the Plaintiff and the Defendants. The Defendants challenged the standing of the Plaintiff to bring the proceedings because, on the Defendants’ contention, the Trust is a charitable trust and the proceedings are “charitable trust proceedings” within the meaning of s 5(2)(b) of the Charitable Trusts Act 1993 (NSW), with the consequence that either the Attorney-General’s approval or leave of the Court is required and no approval or leave has been obtained. The Attorney-General has, however, intervened in these proceedings and the Plaintiff’s position changed over time because, once the Attorney-General intervened, the Plaintiff asserted that the Trust was not a charitable trust.

I set out the terms of the Trust Deed:

After a number of directions hearings at the request of the parties, I set down for hearing the question of whether the Trust is a charitable trust as a preliminary question. For that hearing, in December 2017 (“the December Hearing”), I received extensive submissions from Mr O’Sullivan, Counsel for the Plaintiff, Mr Oakes SC (and Mr K. Tang) for the Defendant, and Mr P. Singleton, Counsel for the Attorney-General. At the December Hearing, Mr P. Gledson, Counsel instructed by the Sze Yup Society of New South Wales (“the Society”), sought leave to appear on the Society’s behalf. The Society has not been joined to these proceedings (and there is significant doubt as to whether it would have standing in these proceedings) but I have permitted Mr Gledson, and later Mr Spencer, to appear on behalf of the Society at the December Hearing and at the two subsequent directions hearings.

It became apparent from the submissions received prior to the December Hearing that there was a practical conundrum. If the Plaintiff was correct in his assertion that the Trust was not a charitable trust, then the Trust was a private trust whose purpose had failed. The Trust property, therefore, would pass bona vacantia to the Crown. At the December Hearing, Mr P. Singleton indicated that if, contrary to the Attorney-General’s contention that the Trust was a charitable trust and the Trust was a private trust and had failed, the Attorney-General, on behalf of the State of New South Wales, would not seek to retain the Trust property. The consequence of that renunciation would be that a new trust would need to be created. If the Trust is a charitable trust, the Attorney-General was of the view that the Trust Deed is problematic in form and in need of clarification.

With that development, it made considerable sense for the parties to consider whether the terms of the trust could be agreed and declared. The parties agreed upon a timetable by which the Attorney-General’s Department would draft appropriate orders, circulate that document to the other parties and consider any comments made. The Society was included in that process.

There has been agreement between the Attorney-General, the Plaintiff and the Defendants on all of the terms of the proposed orders, bar one. The Plaintiff wants to include a provision which permits any trustee to record, by audio or audio-visual means, the meetings of trustees. This clause, which I shall refer to as “the A/V Clause”, is opposed by the Defendants and the Attorney-General.

The reason advanced for the inclusion of the A/V Clause by the Plaintiff is that there has been considerable acrimony between himself and the other trustees and it would be very helpful, in determining what has occurred at a meeting, to have a recording. Mr O’Sullivan contends that such a recording would be of assistance to the Attorney-General in determining what course to take and he also submitted that not having such a provision is a recipe for the continuation of conflict.

The Attorney-General does not agree to the inclusion of the A/V Clause. His position, expressed through Ms Z. Shahnawaz, Counsel appearing for the Attorney-General on 20 April 2018, and that of Mr M. Oakes SC, is that it would not be appropriate for the scheme to dictate what can or cannot be done at meetings of the trustees; that being a matter for the trustees to decide.

I think that the inclusion of the A/V Clause is unlikely to ameliorate the tensions between the trustees. Mr O’Sullivan conceded that the A/V Clause was unorthodox, and it seems to me that it is not appropriate to fetter the trustees as to how meetings should be conducted.

Mr O’Sullivan maintains his client’s position that the Trust is not a charitable one but he accepts that, if his contention to that effect is accepted, the Trust will have come to an end and will have to be replaced by a new trust, the terms of which would be suitably reflected in the document drafted by the Attorney-General, and as amended following the suggestions of both the Plaintiff and the Defendants' representatives. Mr Spencer, on behalf of the Society, adopted a similar position.

In my view, there is a strong argument for concluding that the donors of funds for the Trust had a charitable intention and that the Trust is charitable. However, the practical effect of all of this is that it no longer matters whether it is a trust that should be described as charitable or private since, if it is a charitable trust, there is every good reason to make the terms of the Trust comprehensible, both as to its nature and the powers of trustees, and if it is not a charitable trust, there would need to be created a new trust with a deed in identical terms.

These reasons, and the agreement of the parties (and if it be relevant, the absence of opposition of the Society), lead me to the conclusion that it is appropriate to make orders in accordance with the Short Minutes of Order prepared by the Attorney-General, and attached to these reasons as Schedule A, which Short Minutes are consented to by all the parties to the proceedings.

There remains a dispute concerning the costs of the proceedings which will need to be determined.