Stannard v Co-ordination Co-operative Ltd

EX TEMPORE Judgment

1. [1]

   The defendant's affidavits, which it is proposed to read, go to the question whether land at Nimbin in New South Wales is subject to a charitable trust. That is not the question I have to determine under the notice of motion. It is whether the cross-claimant should be given leave to commence charitable trust proceedings under the Charitable Trust Act 1993, s 6(1)(a). That is in error. The leave is sought under s 6(1)(b) and s 6(2A). They read as follows: " 6 Bringing of certain charitable trust proceedings to be authorised by Attorney General or by leave (1) Charitable trust proceedings are not to be commenced in the Court unless: (a) the Attorney General has authorised the bringing of the proceedings, or (b) leave to bring the proceedings is obtained from the Court. (2)... (2A) Any such authority or leave may also be given after charitable trust proceedings have been brought so as to enable the continuation of those proceedings."

2. [2]

   In these proceedings the cross-claimant seeks a declaration that the land at Nimbin is held upon a valid charitable trust and seeks an order that it be transferred to Nimbin Community Centre Incorporated as sole trustee.

3. [3]

   The question is whether the cross-claimant has brought charitable trust proceedings. That term is defined in the Charitable Trust Act , s 5(1) as proceedings with respect to a breach of a charitable trust or with respect to the administration of a charitable trust. It is in the following terms: " 5 Definition of "charitable trust proceedings " (1) In this Part, charitable trust proceedings means proceedings in the Court brought, whether by any trustee of a charitable trust or by any other person, under the Court's statutory or general jurisdiction with respect to any breach or supposed breach of a charitable trust, or with respect to the administration of a charitable trust."

4. [4]

   The question whether the Nimbin land is subject to a charitable trust is not within the definition, in my opinion. It raises no breach of the charitable trust. And while the question whether the land should be transferred to a sole trustee is with respect to administration, it begs the question whether a charitable trust exists.

5. [5]

   The Attorney General took the view that the proceedings were not charitable trust proceedings within the statutory definition because there was insufficient evidence of the establishment of a trust.

6. [6]

   In my view, notwithstanding the preference for all issues in the proceedings to be determined at the same time, the question whether the Nimbin land is held upon a valid charitable trust should be decided first and in advance of any other issues raised in the proceedings under the Uniform Civil Procedure Rules 2005, Pt 28, r 28.2.

7. [7]

   The Court orders that: (1) a decision be made with respect to paragraph 1 of the cross-summons before any other decision arising under the summons and cross-summons is made; (2) the notice of motion filed on 22 July 2011 is stood over before the trial judge; (3) the costs of the notice of motion are reserved; (4) the proceedings be stood over for directions before the Equity Registrar at 9.00 am on Monday 27 February 2012.