The Trust Company (Australia) Limited as trustee of the Kyle Williams Home Trust v Attorney-General of New South Wales (No. 2) [2012] NSWSC 1505

JUDGMENT
  1. HIS HONOUR: This proceeding concerns a trust established by the will of Carolyn Milne Williams who died on 5 January 1939. The plaintiff is the trustee of the trust. By her will the deceased directed that her trustee hold her property situated at Kyle Bay, Georges River, together with five acres, or thereabouts, of land attached thereto and known as The Retreat, on trust, and convert the same into a convalescent home for children. On 18 March 2011 I declared that the gift constituted a valid charitable trust. I declared that the trust purposes had failed or ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust. I ordered that the trust property be applied cy-pres and that a scheme be settled for that purpose (The Trust Company (Australia) Limited (as trustee of the Kyle Williams Home Trust) v Attorney-General of New South Wales [2011] NSWSC 323).
  1. In my reasons for judgment I said that the provision of care, support and rehabilitation to children suffering from an illness or disability was within the spirit of the trust. I said that the evidence did not establish that the plaintiff's proposal for the trust property to be sold and for the income from the proceeds of sale to be provided to charitable entities that provided such services was necessarily the best way of settling the trust property. I directed that there be further advertisement to elicit a response as to whether or not some entity could use the land and buildings for a purpose within the spirit of the trust, as distinct from the specific purpose of being a convalescent home for children.
  1. I approved the publication of an advertisement inviting proposals from any person or organisation who was interested in using the land, or the funds realised from the sale of the property and other funds of the trust for the purpose of providing care, support and rehabilitation for children suffering from any illness or from any physical or intellectual disability (including any psychiatric or psychological condition).
  1. Following the publication of this further advertisement, various proposals were received by the plaintiff and the Attorney-General. The plaintiff administered a questionnaire to each applicant. Nine organisations initially expressed an interest in the use of the home or the trust property upon any sale of the home. A further nine organisations also expressed an interest in the proceeds of sale if the trust property were sold. Only four applicants persisted with an application involving the use of the property. They were Nardi House, St. George Family Support Services, The Estia Foundation ("Estia") and The Uniting Church in Australia Property Trust through its parish mission known as the Wesley Mission ("Wesley")...
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