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Decisions of the Superior Courts of New South Wales, 1788-1899

Dissolution of Trusts Opinion [1831] NSWSupC 52

schools - education law - trusts, dissolution of - letters patent, binding on crown - land law, trusts

Supreme Court of New South Wales

Governor Darling to judges, 2 August 1831

Source: Chief Justice's Letter Book, 1824 - 1835, Archives Office of New South Wales, 4/6651

[P. 289] Gentlemen,

Having brought under the consideration of the Executive Council[1 ] the accompanying Extract of additional Instructions which I have received from His Majesty with reference to the corporation of Trustees of Clergy and School Lands in this colony, and the council being desirous of obtaining information on certain points connected therewith; I have the honor to request that your Honors will be pleased to consider and favour me with your opinion, whether the form for putting an end to, and dissolving the corporation, must indispensably be that which is pointed out in the letters patent establishing the same; and if not, whether the accompanying additional instructions revoking and annulling the instructions of His late Majesty under which the said letters were issued, are sufficient for that purpose, and for resuming the land granted to the corporation, in as full and ample a manner as if such letters patent had never been issued.

(Extract from additional Instructions under the sign manual dated 30th Jan 1831)

Whereas our late loyal Brother and predecessor His Majesty King George the 4th, did by a commission under the Great Seal of this United Kingdom, bearing date at Westminster the 16thday of July 1825, constitute and appoint you to be Captain Genl and Commander in Chief of our Territory called New South Wales, and did by certain additional Instructions under His Royal signet and sign manual having date the 17th day of July in the year 1825 require and command you to affix the public seal of the said colony to Letters patent for establishing within the same a corporation by the name of the Trustees of the clergy and School Lands, for such several purposes as therein mentioned - And whereas by certain other additional instructions bearing date the 19th day of June 1830 his said late Majesty did require and command you to affix the public seal of the said colony to letters patent to be issued in His name revoking the several provisions declarations and regulations contained in the letters [p. 290] patent referred to in the said additional Instructions of the 17th July 1825 and his said late Majesty did by the said additional Instructions of the 19th of June 1830, further authorise and require you, to establish constitute and ordain such rules orders and provisions as are therein mentioned for the performance of the several duties theretofore rested in the said corporation and His said late Majesty did thereby reserve to himself his Heirs and successors full power and Authority to ordain and establish all such rules orders and provisions in respect of the matters aforesaid, or any of them, as to him his heirs or successors might seem meet - Now we do hereby revoke and finally annul the said additional instructions of the 17th of July 1825 and the said additional Instructions of the 19th day of June 1830, and all acts deeds matters and things by you done under and in pursuance of the said additional instructions or either of them - And we do require and command you to affix the public seal of our said Colony to letters Patent to be passed in our name for revoking the before mentioned letters patent, establishing the said Corporation, and for further revoking the appointment of commissioners for managing the said corporation.

 

Forbes C.J., Stephen and Dowling JJ to Governor Darling, 8 August 1831

[p. 290] Sir,

We have to acknowledge the honor of receiving your letter of the 2d instant  together with an extract of additional Instructions received from His Majesty by your Excellency under date 30thJanuary 1830 with reference to the corporation of Trustees of clergy and school Lands in this colony, requesting our opinion whether the form for putting an end to and dissolving the corporation must indispensably be that which is pointed out in the letters patent of the 9th March 1826, establishing the same; and if not, whether the accompanying additional instructions revoking and annulling the Instructions of His late majesty under which the said letters patent were issued, are sufficient for that purpose, and for resuming the lands granted to the corporation, in as full and ample a manner as if such letters patent had never been issued-

Upon the first point, we are of opinion that although His Majesty may in pursuance of the power reserved to the Crown, revoke the whole of the provisions of the Charter by Instructions under the sign manual and thus reduce the corporation to a nonentity in effect [p. 291] yet, as this power is coupled with that of establishing other provisions in their stead, and as there is a distinct mode pointed out by the charter of dissolving the corporation, in legal strictness the power of dissolving and putting an  end to the corporation can be duly exercised only by force of an ``order to issued by His Majesty for that purpose with the advice of the privy council", and as we do not collect from your Excellency's letter to us, that the last clause in the extract transmitted for our perusal, from additional Instructions to Your excellency under the sign manual dated 30th January 1831, is founded upon an Order issued by His Majesty ``with the advice of the Privy Council", it would seem that the Instructions for dissolving and putting an end to the corporation are not conformable to the manner in which the power reserved to the crown, is required to the exercised by the express terms in the original letters patent establishing the corporations.

Upon the second point referred to us, we are of opinion that upon the dissolution of the corporation, the Lands granted to them for the purposes of the trust created by the Charter, will not revert to the crown, in as full and ample a manner as if the letters patent establishing such corporation had not been issued; but that by the terms of the 36th Section of the Charter, all such lands will continue still liable to the trusts therein particularly mentioned.  And if it be intended to dispose of such Lands in any other manner, we presume that it will be necessary to resort to Parliament, or to an Act of the local legislature - We would take occasion to observe, that by a local ordinance of Your Excellency in Council, passed in 1826 (No 4 sec. 2) the lands therein mentioned, are vested in the Trustees of the Clergy and school Lands, and their successors for ever; and it will require another Act to enable the crown to resume such Lands, or to alter the trusts for which they were so vested.

 

Notes

[1 ] Marginal note in original: "30 January 1831".

Published by the Division of Law, Macquarie University