New South Wales – Charitable Trusts Act

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CHARITABLE TRUSTS ACT 1993 No. 10

UPDATED 9 DECEMBER 1999

INCLUDES AMENDMENTS (SINCE ASSENT OF 4.5.1993) BY:
Statute Law (Miscellaneous Provisions) Act 1996 No. 30
Statute Law (Miscellaneous Provisions) Act (No. 2) 1999 No. 85

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Accordingly, the State of New South Wales and its servants and agents expressly disclaim
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consequences of any such act or omission.

CHARITABLE TRUSTS ACT 1993 No. 10 [Reprinted as at – not reprinted] UPDATED 9 DECEMBER 1999
NEW SOUTH WALES

STATE ARMS

TABLE OF PROVISIONS

PART 1—PRELIMINARY
1. Short title
2. Commencement
3. Definitions
4. Application of Act
PART 2—PROTECTION OF CH ARITABLE PROPERTY
5. Definition of “charitable trust proceedings”
6. Bringing of certain charitable trust proceedings to be authorised by
Attorney General or by leave
7. Extension of powers of Court to protect charitable property
8. Provisions relating to removal of trustees etc.
PART 3—APPLICATION OF CHARIT ABLE PROPERTY CY PRES
9. Extension of the occasions fo r applying trust property cy pres
10. Requirement for general charitable intention of donor
11. Duty of trustee to secure applic ation of trust property cy pres
PART 4—SCHEMES BY ATTORNEY GENE RAL FOR ADMINISTRATION OF
CHARITABLE TRUSTS
12. Attorney General may establish schemes
13. Application etc. for establishment of scheme by Attorney General
14. Restrictions on power of Attor ney General to establish schemes
15. Publicity for schemes proposed to be established by Attorney General
16. Publication and commencement of schemes
17. Revocation or variation of schemes
18. Appeal from orders of Attorney General relating to schemes
19. Register of orders of Attorney General relating to schemes
20. Immunity of Attorney General
21. Fees payable to Attorney General
22. Determination of value of trust pr operty for purposes of this Part
PART 5—MISCELLANEOUS
23. Inclusion of non-charitable purpose not to invalidate trust
24. Act binds the Crown
25. Regulations
26. Effect on pending charitable trust proceedings
27. Consequential repeals
28. Review of Act

____________________________________

CHARITABLE TRUSTS ACT 1993 No. 10
Reprinted under the Reprints Act 1972
[Reprinted as at – not reprinted] UPDATED 9 DECEMBER 1999
NEW SOUTH WALES

[STATE ARMS] An Act to make further provision for the protection of charitable trusts; to auth orise the Attorney General
to establish schemes for the administration of charitable trusts; and for other purposes.

PART 1—PRELIMINARY
Short title
1. This Act may be cited as the Charitable Trusts Act 1993.
Commencement
2. This Act commences on a day or days to be appointed by proclamation.
Definitions
3. In this Act:
“charitable trust” means any trust established for charitable purposes and subject to the control of the
Court in the exercise of the Court’s general juri sdiction with respect to charitable trusts;
“Court” means the Supreme Court of New South Wales;
“trust property” means any property subject to the charitable trust concerned.
Application of Act
4. (1) This Act applies in respect of a charitable trust even though:
(a) it was established outside New South Wales; or
(b) the trust property is not situated in New South Wales; or
(c) the trustees are not domiciled or resident in New South Wales.
(2) This Act applies to a trust created before or after the commencement of this section, except as
otherwise provided by this Act.
(3) This Act does not apply to the exclusion of the provisions of any other Act relating to charitable
trusts.
PART 2—PROTECTION OF CHARITABLE PROPERTY
Definition of “charitable trust proceedings”
5. (1) In this Part, “charitable trust proceedings” means proceedings in the Court brought, whether
by any trustee of a charitable trust or by any other person, under the Court’s statutory or general
jurisdiction with respect to any breach or supposed breach of a charitable trust, or with respect to the
administration of a charitable trust.
(2) However, in this Part “charitable trust proceedings” does not include:
(a) proceedings for the bringing of any appeal; or
(b) proceedings relating merely to the construction of a trust instrument.
Bringing of certain charitable trust proceedings to be authorised by Attorney General or by leave
6. (1) Charitable trust proceedings are not to be commenced in the Court unless:
(a) the Attorney General has authorised the bringing of the proceedings; or
(b) leave to bring the proceedings is obtained from the Court.

(2) The Court is not to give such leave unless satisf ied that the Attorney General has been given an
opportunity to consider whether to authorise the proce edings or that the referral of the matter to the
Attorney General is not appropriate because of the urgency of the matter or other good cause.
(2A) Any such authority or leave may also be gi ven after charitable trust proceedings have been
brought so as to enable the continuation of those proceedings.
(3) A person who does not otherwise have standing may bring charitable trust proceedings if authorised
by the Attorney General to bring those proceedings.
(4) Nothing in this section applies to the bringing by the Attorney General, with or without a relator, of
charitable trust proceedings or any other proceedings relating to a charitable trust.
Extension of powers of Court to protect charitable property
7. (1) If the Court, in charitable trust proceedings, is satisfied that:
(a) there has been any misconduct or mismanagement in the administration of a charitable trust;
and
(b) it is necessary or desirable to act for the purpose of protecting existing or future trust property or
securing a proper application, for the purpose of th e charitable trust, of existing or future trust
property,
the Court may, without limiting any ot her powers of the Court, make one or more of the orders specified
in subsection (2).
(2) The orders which may be made by the Court are as follows:
(a) an order removing any or all trustees of the charitable trust;
(b) an order appointing a person as a trustee of the charitable trust;
(c) an order precluding the employment or engagement of a person in the affairs of the charitable
trust;
(d) an order directing any bank or person who holds property of the charitable trust not to part with
the property without the approval of the Court or the Attorney General (or a person authorised by
the Attorney General) or of some other person;
(e) an order restricting the transactions which ma y be entered into or the nature or amount of the
payments which may be made, in the administration of the charitable trust, without the approval
of the Court or the Attorney General (or a perso n authorised by the Attorney General) or of some
other person;
(f) an order appointing a receiver of the property of the charitable trust;
(g) an order which is necessary or convenient to be made for giving effect to an order referred to in
this subsection.
(3) A person appointed by order of the Court under this section as a receiver of the property of a
charitable trust:
(a) may require the trustees to deliver to the receiver any property of which the person has been appointed receiver or to give to the receiver all su ch information concerning that property as may
reasonably be required; and
(b) may acquire and take possession of any property of which the person has been appointed receiver; and
(c) may deal with any property that the person has acquired or of which the person has taken
possession in any manner in which the trustees might lawfully have dealt with the property; and
(d) has such other powers and duties in respect of the property as the Court specifies in the order.
(4) Nothing in the terms of any charitable trust prec ludes the Court from making any order it is
empowered by this section to make or a ffects the operation of any such order.
(5) In this section and section 8, “misconduct or mismanagement” includes the remuneration of
persons acting in the affairs of the charitable trust concerned, or for other administrative purposes, by
payments which are excessive in relation to the duties of the persons so acting.
Provisions relating to removal of trustees etc.
8. Without limiting the powers of t he Court, the Court may, under section 7, remove a trustee of a
charitable trust:
(a) if the trustee has been responsible for or participated in misconduct or mismanagement in the administration of the charitable trust or has by the trustee’s conduct contributed to it or facilitated
it; or
(b) if the trustee has been convicted, whether in New South Wales or elsewhere, of any offence
involving fraud or dishonesty; or
(c) if the trustee has become mentally incapacitated; or

(d) if the trustee has become bankrupt, has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, has compounded with his or her creditors or has made an
assignment of his or her remuneration for their benefit; or
(e) if the trustee is a corporation:
(i) which is in the course of being wound up; or
(ii) which is under official management; or
(iii) in respect of which a receiver or manager has been appointed, whether by the Court
or pursuant to the powers contained in any instrument or otherwise; or
(iv) which has entered into a compromise or scheme of arrangement with its creditors; or
(v) in respect of which a writ of execution or other pr ocess has been issued on a
judgment, decree or order of any court in fa vour of a creditor of the corporation and
has been returned unsatisfied in whole or in part.
PART 3—APPLICATION OF CHARITABLE PROPERTY CY PRES
Extension of the occasions for applying trust property cy pres
9. (1) The circumstances in which the original purposes of a charitable trust can be altered to allow the
trust property or any part of it to be applied cy pres include circumstances in which the original purposes,
wholly or in part, have since they were laid down ceased to provide a suitable and effective method of
using the trust property, having regard to the spirit of the trust.
(2) References in this section to the original purposes of a charitable trust are to be construed, if the
application of the trust property or any part of it has been altered or regulated by a scheme or otherwise,
as references to the purposes for which the tr ust property are for the time being applicable.
Requirement for general charitable intention of donor
10. (1) This Part does not affect the requirement that trust property can not be applied cy pres unless it
is given with a general charitable intention.
(2) However, a general charitable intention is to be pres umed unless there is evidence to the contrary in
the instrument establishing the charitable trust.
Duty of trustee to secure application of trust property cy pres
11. A charitable trust places a trustee under a duty, if the case permits and requires the trust property
or any part of it to be applied cy pres, to secure it s effective use for charitable purposes by taking steps to
enable it to be so applied.
PART 4—SCHEMES BY ATTORNEY GENERAL FOR
ADMINISTRATION OF CHARITABLE TRUSTS
Attorney General may establish schemes
12. (1) The Attorney General may by order establish a scheme for the administration of any charitable
trust. In particular, the Attorney General may by such an order:
(a) establish a scheme for the alteration of the origi nal purposes of a charitable trust so as to enable
the trust property or any part of it to be applied cy pres if it appears to the Attorney General that
the trust property or any part of it may be so applied; or
(b) establish a scheme to extend or vary the powers of trustees of a charitable trust or prescribe or
vary the manner or mode of administration of any charitable trust, either generally or in a
particular case, if it appears to the Attorney General that it is expedient to do so in the interests of
the administration of the charitable trust; or
(c) in the case of 2 or more charitable trusts, establish a scheme to authorise the trustees to use
common premises or employ common staff in the administration of the trusts, to pool the trust
property for the purpose of investment, or otherwise to combine for any purpose of administration
of the trusts.
(2) Without limiting the generality of any provision of th is Part, a scheme under this Part may vest in any
trustees of a charitable trust who desire to sell, mort gage or lease the trust property or any part of it, but
who cannot do so for lack of power vested in them by the instrument (if any) creating the trust or by law,
the necessary power for such a sale, mortgage or lease.
(3) If there are no trustees of a charitable trust, a sc heme under this Part may appoint trustees for the
purposes of the scheme.
(4) A scheme for the administration of a charitable trust established by the Attorney General under this
Part has the same effect as it would have if it had been established by the Court.
Application etc. for establishment of scheme by Attorney General
13. (1) The Attorney General may establ ish a scheme under this Part:
(a) on the application of all or any of the trustees; or
(b) in a special case—on the Attorney General’s own initiative; or
(c) in accordance with a referral from the Court under subsection (2).

(2) If the Court directs that a scheme for the administration of a charitable trust be established, the
Court may, by order, refer the matter to the Attorney General for the Attorney General to establish the
scheme in accordance with the di rections (if any) of the Court.
Restrictions on power of Attorney General to establish schemes
14. (1) The Attorney General is not to establish a scheme under this Part if:
(a) the value of the trust property affected by the scheme exceeds $500,000 or, if another amount is
prescribed by the regulations, that other amount; or
(b) the Attorney General is satisfied that the subj ect matter is, because of its contentious character
or any special question of law or fact or for othe r reasons, more fit to be dealt with by the Court.
(2) This section does not apply to the establishment of a scheme in accordance with a referral from the
Court.
Publicity for schemes proposed to be established by Attorney General
15. (1) The Attorney General is not to estab lish a scheme under this Part unless:
(a) the Attorney General (or a person authorised by the Attorney General) has, not less than 1
month previously, published in the Gazette or in a newspaper circulating throughout New South
Wales a notice about the proposed scheme; and
(b) the Attorney General has given due consideratio n to any representations or suggestions made in
respect of the proposed scheme by any person.
(2) A notice about a proposed scheme must:
(a) specify that the Attorney General proposes to establish a scheme under this Part; and
(b) give details of the proposed scheme or specify a place at which a copy of the proposed scheme
may be inspected; and
(c) specify a period within which any person ma y make representations or suggestions to the
Attorney General in respect of the proposed scheme.
(3) This section does not apply to the establishment of a scheme if:
(a) the scheme does not alter the original purpose s of the charitable trust and the Attorney General
is satisfied that the scheme should be es tablished as a matter of urgency; or
(b) the value of the trust property affected by the scheme does not exceed $2,000 or, if another
amount is prescribed by the regulations, that other amount; or
(c) the scheme is established in accordan ce with a referral from the Court.
Publication and commencement of schemes
16. (1) If the Attorney General makes an order under this Part establishing a scheme, the Attorney
General must publish in the Gazette or in a newspaper circulating throughout New South Wales a copy
of the order or brief details of the order and the addre ss of the place at which a copy of the order may be
inspected.
(2) Any such order does not take effect:
(a) until 21 days after its publication in accordance with this section or such later time as is specified
in the order; or
(b) if an appeal against the order is duly made to the Court under this Part within that time, unless the order is confirmed or the app eal is withdrawn or lapses.
(3) An order establishing a scheme referred to in secti on 15 (3) may, despite anything in this section,
specify that it takes effect on or at any time after its publication.
Revocation or variation of schemes
17. (1) The Attorney General may revoke a scheme es tablished under this Part by a further order
published in the same manner as the order establishing the scheme.
(2) The Attorney General may vary a scheme established under this Part by a further order published in
the same manner as the order establishing the schem e. The provisions of this Part relating to the
establishment of a scheme apply to any such variation of the scheme.
Appeal from orders of Attorney General relating to schemes
18. (1) If the Attorney General makes an order under this Part:
(a) any trustee of the charitable trust concerned; or
(b) with the leave of the Court, any other person,
may appeal to the Court against the order within 21 days after the order is published under this Part or,
with the leave of the Court, at any time after the order is so published.
(2) An appeal is to be made in accordance with the rules of the Court.
(3) The Court may, in determining the appeal, confirm, vary or quash the order.
(4) If the Court quashes the order, it may establ ish another scheme for the administration of the
charitable trust or direct the Attorney General to es tablish another such scheme in accordance with the
directions (if any) of the Court.

(5) A scheme purporting to be established by the A ttorney General under this Part may not be
challenged because of any alleged cont ravention of this Part, except in an appeal to the Court under this
section.
Register of orders of Attorney General relating to schemes
19. (1) The Attorney General is to maintain a register of all orders made by the Attorney General under
this Part.
(2) The register is to be open to inspection by any person during ordinary office hours.
(3) The regulations may make provision for or with respect to the maintenance and inspection of the
register.
Immunity of Attorney General
20. The Attorney General has, in relation to any matter or thing done or omitted by the Attorney General
in connection with any scheme under this Part, the same immunities from liability as a Judge of the Court
would have if the matter or thing were done or omitted by the Court.
Fees payable to Attorney General
21. (1) The Attorney General may, by the order establ ishing or varying a scheme under this Part,
charge fees for the costs and expenses (including legal costs and disbursements) incurred by the
Attorney General in connection with the es tablishment or variation of the scheme.
(2) Any such fees may be fixed as a percentage of the value of the trust property affected by the
scheme (with or without any minimum fee).
(3) Any fees payable under this section are (unless paid by the applicant for the establishment or
variation of the scheme) payable fr om the trust property concerned.
(4) An appeal may be made to the Court against an order under this Part in connection with the fees
required to be paid under the order.
Determination of value of trust property for purposes of this Part
22. For the purposes of this Part, the determination of the value of trust property is to be made by the
Attorney General. The value is to be determined as at the date of the application for the scheme
concerned or any other date the Atto rney General considers convenient.
PART 5—MISCELLANEOUS
Inclusion of non-charitable purpose not to invalidat e trust (cf. former s. 37D of Conveyancing Act
1919)
23. (1) A trust is not invalid merely because some non-charitable and invalid purpose as well as some
charitable purpose is or could be taken to be included in any of the purposes to or for which an
application of the trust property or of any part of it is directed or allowed by the trust.
(2) Any such trust is to be construed and given effect to in the same manner in all respects as if no
application of the trust property or of any part of it to or for any such non-charitable and invalid purpose
had been or could be taken to have been so directed or allowed.
(3) This section does not apply to any trust declared before, or to the will of any testator dying before, 1
January 1939, being the date of commencement of the Conveyancing, Trustee and Probate
(Amendment) Act 1938.
Act binds the Crown
24. This Act binds the Crown.
Regulations
25. The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter
that by this Act is required or permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
Effect on pending charitable trust proceedings
26. (1) Nothing in any provision of this Act affects any proceedings relating to a trust that were
commenced in the Court before the commenc ement of the provision concerned.
(2) Despite subsection (1), the Court may make a referral under section 13 (2) of a matter in relation to
proceedings relating to a trust that were commenced in the Court before 15 April 1994 (the date of
commencement of this Act) as well as in relation to proceedings commenced after that date.
Consequential repeals
27. The following provisions are repealed:
Division 6 of Part 2 of the Conveyancing Act 1919 ( Trusts for charitable purposes)
Division 3 of Part 3 of the Imperial Acts Application Act 1969 ( Charities).
Review of Act
28. (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain
valid and whether the terms of the Act remain appropriate for securing those objectives.

(2) The review is to be undertaken as soon as possib le after the period of 5 years from the date of
assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months
after the end of the period of 5 years.
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NOTES
Table of Acts
Charitable Trusts Act 1993 No. 10. Assented to, 4.5.1993. Date of commencement, 15.4.1994, sec. 2
and Gazette No. 58 of 15.4.1994, p. 1605. This Act has been amended as follows:
Statute Law (Miscellaneous Provisions) Act 1 996 No. 30. Assented to, 21.6.1996. Date of
commencement of the provision of Sch. 1 relating to the Charitable Trusts Act 1993, 15.4.1994, Sch. 1.
Statute Law (Miscellaneous Provisions) Act (No. 2) 1999 No. 85. Assented to, 3.12.1999. Date of
commencement of Sch. 1.5, assent, sec. 2 (2).
____________________________________
Table of Amendments

Sec. 6—Am. 1999 No. 85, Sch. 1.5.
Sec. 26—Am. 1996 No. 30, Sch. 1.
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