Link: Case Summary Document
Citation:  QSC 246 Supreme Court of Queensland, P McMurdo J
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This case dealt with the proper application of funds held by the First Church of Christ Scientist (the church) under a charitable trust. The church contended that the funds were held by it under a charitable trust, the purpose of which was the advancement of religion and, more specifically, the religion of Christian Science. The Attorney-General contended that the funds were held under a charitable trust, the purpose of which was the relief of poverty.
The funds held by the church resulted from a bequest made in 1935 by Thomas Reynolds who died leaving most of his estate to the directors of the First Church of Christ Scientist, Brisbane. The estate included six real properties in Brisbane, of which two were the subject of this case. They were affected by a codicil to the deceased’s will and were referred to as the ‘codicil properties’ during the case. The properties were held at times by the church’s directors and at times by the church itself, until they were sold by the church in 1997. The proceeds of sale amounted to more than $2 million.
For some years the parties had been corresponding about a cy-près scheme which, in various forms, had been proposed by the church. However, before a scheme could proceed there needed to be a determination of the nature of the charitable purpose applicable. Therefore the church made this application, under section 106 of the Trusts Act 1973 (Qld), for directions from the court.
The deceased made his will in 1931. On 1 July of that year, the deceased executed a codicil to his will which stated:
WHEREAS by my said Will I have left all the rest residue and remainder of my estate to the Directors of the First Church of Christ Scientist Brisbane to be used by them for the sole purpose of furthering the cause of Christian Science in the State of Queensland only as shall be thought best absolutely I NOW DIRECT that my real property and improvement thereon being [the codicil properties] … shall not be sold by the said Directors of the First Church of Christ Scientist but shall be retained by them and shall be used as a ‘Home’ in connection with the said Church and be available to such persons and on such terms and conditions as the said Directors shall in their absolute discretion think fit … [emphasis added]
The Attorney-General relied on the words ‘shall be used as a ‘Home’…’ (i.e. the words above in italics) as the basis for contending that the funds should be applied for the relief of poverty.
Until 1964, when the church became an incorporated body under the Churches of Christ, Scientist, Incorporation Act 1964 (Qld), the First Church of Christ, Scientist, Brisbane was a body or association incorporated by the grant of Letters Patent under the Religious Educational and Charitable Institutions Act 1861 (Qld) (now repealed). The Letters Patent constituted the persons from time to time holding the offices of president, clerk and treasurer to be incorporated by the name and style of First Church of Christ, Scientist, Brisbane. Thus, the church by that name was distinct from the board of directors.
After probate of the will and codicil was granted at the end of 1935, the six properties, including the codicil properties, were incorrectly transferred to the name of the church, rather than to its directors in accordance with the will. In 1947, the court ordered that the four ‘will’ properties be vested in the directors rather than the church. Later, the two codicil properties were also transferred to the control of the directors. The four ‘will’ properties were then sold and the proceeds applied to the improvement of the two codicil properties, which were used as hostels until they were sold in 1997.
His Honour said that the will left the residue of the estate upon a charitable trust, the purpose of which was the advancement of the religion of Christian Science. That residue would have included the two parcels which were subsequently the subject of the codicil. The question was whether the codicil removed those properties from the charitable trust which was created by the will. His Honour said on that point (at ):
As to that, the codicil is not in terms which at least plainly revoke the gift under the will of any of the property within the residue. Rather, the codicil recited the effect of the will upon the residue, before then expressing a direction with respect to the codicil properties. As the church submits, the language of the codicil was not that of revocation and re-gifting.
The Attorney-General argued that the codicil created a separate and distinct trust. His Honour agreed (at ). However, what was the purpose of that separate trust? His Honour held that it was also a trust for the advancement of religion. The church held the codicil properties, and now held their proceeds of sale, upon the trust created by the codicil, which was a charitable trust for the purpose of the advancement of the religion of Christian Science in Queensland.
Therefore, the applicant church was directed to administer the trust accordingly.
The case may be viewed at: http://www.austlii.edu.au/au/cases/qld/QSC/2012/246.html
Implications of this case
There was no disagreement in this case that this was a charitable trust. The argument was as to the purpose of the charitable trust. The outcome of the case turned on the interpretation of the words used in the codicil to the will, and the wording of the Churches of Christ, Scientist, Incorporation Act 1964 (Qld), particularly at section 2 and 3. His Honour held that, as the properties were vested in the directors of the church and not the church itself, they were not affected by the provisions of the Act. Although the properties were returned to the church in 1997, just before they were sold, this was merely a change of trustee. His Honour said (at ): ‘The 1997 instrument can be interpreted consistently with its being not a purported variation of a trust, but an instrument to effect the appointment of a new trustee under the same trust’. Thus, the nature of the charitable trust continued as one which was for the advancement of religion.