James N Kirby Foundation v. Attorney-General NSW

[2004] NSWSC 1153

---

James N Kirby Foundation
v Attorney-General NSW

Court:

Judge: White J

Subject References:
TRUSTS AND TRUSTEES
Application to vary trust deed for charitable foundation to come within definition of prescribed private fund set out in Income Tax Assessment Act 1997.
JURISDICTION
Whether court has inherent power to vary charitable trust deed
No inherent power where it is possible to execute the trust
Whether proposed amendments are expedient in administration of trust property pursuant to s 81(1) Trustee Act.

Legislative References:
Income Tax and Social Services Contribution Assessment Act 1936 (Cth) - the Act
Income Tax Assessment Act 1997 (Cth) - the Act
Income Tax Assessment Act 1936 (Cth) - the Act
Trustee Act 1925 (NSW) - the Act
Minors (Property and Contracts) Act 1970 - the Act

Case References:
Tickle v Tickle - (1987) 10 NSWLR 581
Bowmil Nominees Pty Ltd - [2004] NSWSC 161
Re Philips New Zealand Ltd - [1997] 1 NZLR 93
Ku-ring-gai Municipal Council v Attorney-General - (1954) 55 SR (NSW) 65
Attorney-General v Whitely - (1805) 11 Ves Jun 241; 32 ER 1080
Attorney-General v Whitely - (1796) 3 Ves Jun 141 at 144; 30 ER 937
Freeman v Attorney-General - [1973] 1 NSWLR 729
N M Superannuation Pty Ltd v Hughes, McLelland CJ in Eq, 5 March 1996 - unreported, BC9600423 at 8-9
Re Gaydon - [2001] NSWSC 473
Re Cosaf Pty Ltd - (Young J, 18 December 1992 unreported)
Arakella Pty Ltd v Paton - [2004] NSWSC 13
Re Philips New Zealand Ltd - [1997] 1 NZLR 93

Hearing date: 12/08/04 (Further evidence filed 25/10/04 and read by consent, 25/11/04)
Judgment date: 2 December 2004

Sydney

---

Direct that short minutes be brought in in conformity with these reasons for an order conferring upon the trustee the power to amend the trust deed to substitute for the present terms the terms of the proposed deed of trust which is Annexure A to the summons, subject to amendment to clause 7 and to the definition of "Responsible Person".; The short minutes should provide also for the payment of the defendant's costs of the proceedings.