Wilson vs. Indigenous Services Pty Ltd

Australia

03.03.2021

Trusts and Societies

Court has broad powers under Section 21 of the Charitable Trusts Act, 1962 to make orders in respect of any property, money or income subject to a trust for charitable purposes

The Plaintiffs commenced present proceedings by originating summons filed 25 January 2021. The Plaintiffs seek relief, including declarations that the first defendant, Indigenous Services Pty Ltd, has been removed as the trustee of the Njamal Peoples Trust, and Njamal Community Corporation Pty Ltd has been validly appointed and remains the validly appointed trustee of the Trust. The Plaintiffs seek an order that, they be indemnified out of the Trust Fund in respect of their costs of the proceedings. Plaintiffs challenged the validity of the appointment of the Trustee and Plaintiffs seek an interim payment out of the Trust Fund for their legal costs.

The present application raises a different question that whether the Court has power to order the Trustee to exercise its discretion to make a particular payment from the Trust Fund.

Costs are a creature of statute. The source of the Court's power to award costs, including costs out of a fund or property, is in Section 37 of the Supreme Court Act 1935 (WA). But that is not the power upon which the Plaintiffs must now rely: the order sought is not an order for costs. The court has broad powers under Section 21 of the Charitable Trusts Act, 1962 (WA), to make orders in respect of any property, money or income subject to a trust for charitable purposes. The Court may make orders including an order that a trustee to carry out the trusts upon which the property is held, requiring a trustee to meet its liability for any breach of trust, and giving directions in respect of the administration of the trust.

The terms of the section do not extend to authorising the Court to make an order of the kind now sought. The Plaintiffs referred to Section 94 of the Trustees Act, but have no standing to apply under that section. The Plaintiffs could identify no other relevant source of power for the Court to either compel the Trustee to exercise its discretion in a particular way, or for the Court to itself make an order for payment out of the Trust Fund. Application dismissed.

Tags : Trust Fund Legal costs Entitlement

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