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In the Supreme Court of New South Wales Equity Division Windeyer J Tuesday 14 August 2007 1994/06 Northern Sydney and Central Co

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In the Supreme Court of New South Wales Equity Division Windeyer J Tuesday 14 August 2007 1994/06 Northern Sydney and Central Co Northern Sydney and Central Coast Area Health Service & anor v The Attorney-Gene... Page 1 of 8 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J TUESDAY 14 AUGUST 2007 1994/06 NORTHERN SYDNEY AND CENTRAL COAST AREA HEALTH SERVICE & ANOR V ATTORNEY-GENERAL FOR NEW SOUTH WALES & ORS JUDGMENT 1 These are charitable trust proceedings under the Charitable Trusts Act 1993 in which it is sought that a cy-prés scheme be settled and ordered. As is usual in these cases there is to be a two stage hearing if it is found a scheme is justified. 2 The question for decision in this part of the case is whether the charitable purposes for which “Graythwaite” was given by Mr Thomas Allwright Dibbs (later Sir Thomas Dibbs) to His Majesty King George the Fifth on behalf of the Government of the State of New South Wales, can no longer be carried out. If it is decided that the trust purposes have failed, then it will be necessary to have a later hearing to settle a cy-prés scheme for the purpose of carrying out as nearly as possible the original trust purposes. Facts 3 The trust was created by memorandum of transfer and surrender under the Real Property Act 1900 from Thomas Allwright Dibbs to His Majesty the King for the State of New South Wales, which transfer was accepted by the Crown Solicitor on behalf of the transferee. The document is dated 1 October 1915 and omitting references to certain rights of way, is as follows: MEMORANDUM OF TRANSFER (Real Property Act 1900) A206747 In consideration of my admiration of and sincere sympathy for those brave men who have so unselfishly given their services and their lives fighting for the Empire in the cause of Justice and liberty I do hereby transfer and surrender to His Most Gracious Majesty King George V on behalf of the Government of the State of New South Wales all my Estate and Interest, as such registered proprietor, in ALL THAT piece of land containing six acres two roods 23 ¾ perches known as “Graythwaite” situate at St Leonards in the Parish of Willoughby and County of Cumberland being the whole of the land comprise in Certificate of Title dated 16th May 1888 registered volume No. 881 folio 79 ____also in that piece of land known as “Bishopsgate” as follows:- being the part of land contained in Certificate of Title Dated 28th August 1886 Registered Volume 802 Folio 193 and shown as the site of “Bishopsgate” upon the plan lying in the Land Titles Office Sydney No 504 for a convalescent home for our Sick and Wounded Soldiers and Sailors and when not required for that purpose as a Convalescent Home in perpetuity for distressed subjects of the British Empire regardless of Sect or Creed. 4 The gift of the land for the stated purposes had been proposed some months earlier, and the government had decided to accept the gift on its terms some time before the transfer date, but it is pursuant to the transfer that the trust was constituted and its terms settled. 5 No question arises here as to charitable intention, nor as to the requirement for a scheme if trust http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/881.html 25/10/2008 Northern Sydney and Central Coast Area Health Service & anor v The Attorney-Gene... Page 2 of 8 purposes have failed. If they have failed then a scheme must be ordered. Once a charitable trust comes into effect, there can be no reversion to the settlor on failure. The assets must be applied cy- prés. 6 It is necessary to give a short description of the property and its historical and current use. The gift was made at a time when Australians were confronted with a large number of wounded and sick soldiers returning home from the battlefields of World War I. Australia was not really ready for the influx of injured soldiers and there was urgent need for hospitals and homes for their treatment and recuperation. The original arrangements for “Graythwaite” were that it would be managed for the State by the Red Cross, the military authorities would send convalescent soldiers there and the Australian Government would pay a daily rate for their maintenance. From documents put into evidence by the Attorney-General, it seems that the original arrangement was for the Red Cross to have control for the period of the war plus one year, but it was thereafter agreed the Red Cross Society would carry on the home with ”the Repatriation Department having first claim on its accommodation for permanently disabled soldiers and sailors, and the beds occupied by them to be available for the same purposes as at present” (Premier’s office minute 26 March 1918). From that time up to 1980 that was the arrangement. From the beginning there were about 40 patients accommodated in the main house; later, when additional accommodation was built, there were up to 50 patients on the site. 7 The New South Wales Health Department took over management in 1980. In 1988 management was transferred to the Home of Peace, now Hope Healthcare Limited, an Anglican charitable organisation which also controls the Greenwich Hospital. “Graythwaite” then operated as a specific purpose dementia state government residential aged care facility with 28 patients all accommodated in a building to the east of the main house, probably erected after the Second World War, although there is conflicting evidence about that. It does not matter for the purpose of these proceedings. The site 8 The whole of the “Graythwaite” property covers an area of over 6 acres. The land rises steeply from south to north – that is from Union Street to Edward Street, North Sydney. All the buildings are sited at the top or northern side and the present access to them is from Edward Street. The main “Graythwaite” house is a large, sandstone home commanding extensive harbour views. It is listed on the register of the National Trust and on the New South Wales State Heritage Register where it is described as: An early example of a prominent North Shore residence which has been altered extensively over its life to reflect the social standing and status of changing ownership. It was clearly a gracious home when handed over. Mr Dibbs was a leading citizen of the State and manager of the Commercial Banking Company of Sydney Limited. 9 The main building is no longer used to house any patients or for any nursing home purpose, although some administration might be done there. It has fallen into disrepair and some areas, particularly the upper floors, are considered dangerous. It is perfectly clear that it has not been maintained by the trustee as it could and probably should have been, at least to ensure that it was not damaged by water. All homes need basic maintenance to ensure roofs and gutters do not leak. One of the documents put into evidence by the Attorney-General was a report in the Sydney Morning Herald of an occasion on 2 March 1916 when Mr Dibbs handed over the deeds of the property to the Premier, and the Premier handed over control of the property to the Red Cross. This was really a ceremonial occasion as the property had already been transferred to the State. The Premier, Mr Holman, is reported as saying when accepting the gift of the deeds on behalf of the government and the people of New South Wales: I can assure the generous givers in the name of this and all Governments that shall succeed us, that http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/881.html 25/10/2008 Northern Sydney and Central Coast Area Health Service & anor v The Attorney-Gene... Page 3 of 8 the trust shall be administered in a manner worthy of the great and generous spirit in which it has been made. And in handing it over to the Red Cross he said: In the years to come, when the war has ended, and this great gift can be again restored to purposes of more peaceful charity, it will revert to the Government of the State, which will be its trustee forever. Take this great gift, guard it well, and use it in accordance with the spirit in which it has been given. It is probably because these stated intentions of the New South Wales Government have not been carried out that this case has caused such interest in the North Sydney community. It is obvious that it would take a vast amount of money to put the house back into a suitable condition for any residential use. 10 The other important building on the site in 1915 was a coach house and stables, apparently constructed around 1836. That building is still there and is presently used as a living skills centre providing day care activities for intellectually disabled people. 11 The other buildings now on the land comprise the nursing home, which looks quite unprepossessing from the outside, but on entry is light and airy and the evidence is that it is a very well conducted home. It is operated as a residential aged care facility with 28 beds, mostly allocated to dementia patients. It is agreed it provides a high standard of care for a home of its type. It is accredited up to the end of 2008, although it is accepted that after that time there may eventually be accreditation problems as the home may not comply with future Commonwealth standards governing the number of patients per room, the number of bathrooms per patient and some safety features.
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