Hardey v Tory [1923] HCA 35; (1923) 32 CLR 592 (14 August 1923)

HIGH COURT OF AUSTRALIA

Hardey Defendant, Appellant; and Tory and Others Plaintiffs Respondents.

H C of A

On appeal from the Supreme Court of Western Australia.

14 August 1923

Knox C.J., Higgins and Starke JJ.

Downing K.C. (with him Walker), for the appellant.

Sir Walter James K.C. and F. Leake, for the respondents Burnett (the secretary of the Wesleyan Methodist Missionary Society in London) and the Wesleyan Methodist Missionary Society in London, and

Stow, for the respondent Tory,

Knox C.J.

In this case we are all of opinion that the gift in these words, "And as to the other half part of the said trust moneys to pay over the same into the hands of the secretaries for the time being of the Wesleyan Missionary Society in London," is a gift to the secretaries of the Society for the purposes of the Society, and those purposes are admitted to be what are known to the law as charitable purposes. That being so, no difficulty is raised as to the later gift of the one-fifth residue, which was given on the trusts and purposes declared. For these reasons we think the decision of the Chief Justice of Western Australia is correct, and that this appeal should be dismissed with costs.

Higgins J.

I want to say simply—concurring with the Chief Justice and my learned brother—that, where a gift is made to a society having a distinctive charitable purpose, prima facie the gift is for that purpose. It is quite true that no trust is created unless the object as well as the subject of the gift is defined. The gift to the Wesleyan Missionary Society is prima facie to the objects of that Society, and there is nothing in the will to contradict or qualify that prima facie meaning. A book has been exhibited showing the objects of this Society.

Starke J.

I concur.

Appeal dismissed with costs.

Solicitor for the appellant, J. L. Walker.

Solicitors for the respondents, Stone, James & Co.