IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
 
S ECI 2022 04949

IN THE MATTER of an application by the trustees for the ROYAL FREEMASONS’ HOMES OF VICTORIA for relief under r  54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), s 7L of the Charities Law Act 1978 (Vic), and s 63 of the Trustee Act 1958 (Vic)

BETWEEN:

WILLIAM JOHN HAYES as Trustee for the ROYAL FREEMASONS’ HOMES OF VICTORIA & ORS 
(according to the attached Schedule) 	Plaintiffs	
		
v  		
		
ATTORNEY-GENERAL OF VICTORIA 	Defendant	

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JUDGE:	Barrett AsJ 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	31 October 2023	
DATE OF JUDGMENT:	14 May 2024 	
CASE MAY BE CITED AS:	Re Royal Freemasons’ Homes of Victoria	
MEDIUM NEUTRAL CITATION:	[2024] VSC 238	

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EQUITY – Charitable trusts, judicial advice – Crown Grant established in 1867 granting land to the plaintiff trustees for charitable purposes – Other Land subsequently transferred to and held by trustees – Whether Grant Property and Other Land held on same trust – Whether trustees have power to incorporate custodian company to hold Grant Property and Other Land as bare trustee – Whether trustees have power to transfer Grant Property and Other Land to custodian company – Whether a transfer of land to custodian trustee would be an 'alienation’ of an interest in the Grant Property – Held: trustees do not have power under terms of trust to transfer Grant Property to a custodian trustee and any such transfer would be an ‘alienation’ of an interest in the Grant Property – Held: the trustees do have power to transfer Other Land to a custodian trustee under the terms of the trust, and regulations made pursuant to that trust. 

REMEDIES – Consideration of available relief under s 63 of the Trustee Act 1958 (Vic) and r 54.02(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Held: it is appropriate to grant the trustees power pursuant to s 63 of the Trustee Act to incorporate a Custodian Company to act as bare trustee for the Grant Property and to transfer the Grant Property to that custodian subject to the safeguards proposed – Held: having regard to the limitations in the grant as to who can be trustee and having regard to the consequences of any alienation, it is not appropriate to make orders pursuant to r 54.02(2)(c) authorising the transfer of the Grant Property to a custodian.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiffs	Dr P Bender  	Russell Kennedy 	
			
No appearance for the Defendant		Victorian Government Solicitor	

TABLE OF CONTENTS

Introduction	1
Evidence	2
The Freemasons	2
The Properties Held by the Trust	2
The Crown Grant	3
Other properties held by Royal Freemasons	5
Freemason Regulations	5
Business and Business Structure	9
Is there a single trust?	9
Do the trustees have power to incorporate a custodian trustee for the purpose of holding trust land?	12
Do the trustees have power to transfer the Other Land to the proposed Custodian?	14
Would the proposed transfer of the Grant Property to a custodian trustee be in breach of the Crown Grant?	15
Section 63 of the Trustee Act	19
Is there an absence of power?	19
Is the proposed course in the management and administration of the trust?	20
Is the proposed course expedient?	20
Rule 54.02(2)(c) of the Rules	21
Conclusion	22

HIS HONOUR:
Introduction
1	Royal Freemasons Homes of Victoria (‘Royal Freemasons’) is a charitable trust that was established in 1867.  The trustees are individuals who hold numerous properties at which aged care homes and similar facilities operate.  Accordingly, whenever a trustee changes, the properties must vest in the new trustee.  This has caused efficiency and cost problems.  By way of example, between 2018 and 2022, the legal costs associated with changing trustees totalled $180,502 plus GST for legal fees, plus $18,481.28 in disbursements.  It has also been estimated that a further $41,700 in legal fees plus disbursements of approximately $6,000 will be incurred to make an application to have the titles updated to reflect the most recent change in trustee. 
2	The trustees have received legal advice that the creation of a custodian company to hold all trust property as bare trustee for the trustees, would result in a far simpler and less costly and time-consuming process.  The question is whether, and if so how, this can be done. 
3	The plaintiffs seek judicial advice pursuant to r 54.02(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), broadly in relation to the following questions:
(a)	do the trustees have power to incorporate a new company, with trustees of the Royal Freemasons as its shareholders and directors, to act as custodian of the properties (‘Custodian Company’)?
(b)	do the trustees have power to transfer the properties to the Custodian Company?
(c)	if the answer to the above is no, do the trustees have power to amend the regulations to give the trustee power to create the Custodian Company and transfer the properties to it?
(d)	alternatively, orders pursuant to s 63 of the Trustee Act 1958 (Vic) (‘Trustee Act’) conferring on the trustees the power to incorporate the Custodian Company and transfer the properties to it; and
(e)	further or alternatively, orders approving the incorporation of the Custodian Company and the transfer of the properties to it.
Evidence
4	The plaintiff relies on:
(a)	affidavits sworn by David Ian Gibbs on 1 December 2022 and 13 September 2023; 
(b)	an affidavit affirmed by Samantha Kate Taylor on 1 December 2022; and
(c)	written submissions filed on 13 September 2023; and 
(d)	further amended originating motion.
5	The defendant is the Attorney-General of Victoria (‘Attorney-General’), who is joined as representative of the objects of the charity.  By letter dated 5 January 2023, the Victorian Government Solicitor on behalf of the Attorney-General advised that, subject to any request by the Court, the Attorney-General did not intend to appear at the hearing or take an active role in the proceeding.
The Freemasons
6	The history and constitution of the Royal Freemasons is described in the decision of Freemasons Hospital v Attorney-General for the State of Victoria. 
The Properties Held by the Trust 
7	The relevant properties held by the trust include a property by way of Crown Grant in 1867 and numerous other properties acquired since the 1960s.
The Crown Grant
8	In 1867, the Government of Victoria granted land (now identified as 31-75 Moubray Street, Melbourne), to three named Grand Masters of the Royal Freemasons, and to their heirs, ‘in order to provide a site at South Melbourne in our said Colony for Charitable Institutions in connection with the Ancient Fraternity of Free and Accepted Masons’ subject to specified ‘provisions, conditions and declarations’ including the following:
(a)	The land shall be maintained for such Charitable purposes and in accordance with legal regulations or regulations made by the Crown or trustees for the time being;
(b)	The trustees shall not use the land for any other purpose or alienate any part of it, failing which the land will revest in the Crown; and
(c)	If a trustee dies, moves out of the Colony or wishes to retire, the Crown has the power to appoint a replacement trustee and the land be vested in the new trustee.
9	The full text of the grant is attached as an appendix to this decision. The relevant terms, formatted for ease of reference, are as follows:
… NOW KNOW YE that in order to provide a site at South Melbourne in our said Colony for Charitable Institutions in connection with the Antient Fraternity of Free and Accepted Masons WE of our own Special grace Have granted and for us Our Heirs and Successors DO hereby grant unto FREDERICK CHARLES STANDISH of the City of Melbourne in the said Colony of Victoria Esquire District Grand Master under the Constitution of the United Grand Lodge of England JOHN THOMAS SMITH of the same place Esquire Provincial Grand Master under the Constitution of the Grand Lodge of Ireland and THOMAS REED of the same place Esquire Provincial Grand Master under the Constitution of the Grand Lodge of Scotland and to their heirs ALL that piece of land in our said Colony containing [thereafter is a detailed description of the land] … TO HAVE AND TO HOLD the said land and premises unto the said Frederick Charles Standish, John Thomas Smith and Thomas Reed and to their heirs
PROVIDED nevertheless and we do hereby expressly declare that this Our Royal Grant is and shall be subject to the conditions provisions and declarations hereinafter mentioned (that is to say):
(a)	That the said land hereby granted and the buildings for the time being thereon shall be at all times hereafter maintained and used for the said Charitable Institutions and offices and conveniences connected with such Institutions under and in accordance with such regulations as shall from time to time be made by the Governor or other Officer for the time being administering the Government of our said Colony with the consent of the Executive Council thereof and in the meantime under and in accordance with such regulations as shall from time to time be made by the said Frederick Charles Standish, John Thomas Smith and Thomas Reed or the survivor of them or other trustees for the time being of the said land and premises (such survivors or other trustees not being less than two in number at making of such regulation) and for no other purpose whatsoever
(b)	PROVIDED also and we do hereby further declare the if the said Frederick Charles Standish, John Thomas and Thomas Reed or the survivors or survivor of them or other trustees or trustee of said land and premises:
(i)	shall permit or suffer the said land and premises or any part thereof to be used for or applied to any other than the purpose aforesaid or to become out of proper order or repair or 
(ii)	shall alienate or attempt to alienate in fee simple or for any less estate or interest the said land and premises or any part thereof save and except under or in pursuance to some law hereafter to be in force within the said Colony 
it shall be lawful for Us Our Heirs and Successors by any person or persons duly authorised in behalf by the Governor or other Officer for the time being administering the Government of our said Colony to reenter upon the said land or any part thereof and to hold possess and enjoy the same as fully and effectually to all intents and purposes as if this Grant had not been made
(c) 	PROVIDED also and we do hereby further declare that if the said Frederick Charles Standish, John Thomas Smith and Thomas Reed or any of them or any trustee or trustees to be appointed as hereinafter provided by shall die or go to reside out of Our said Colony or shall desire to be discharged from or refuse or decline or become incapable to act in trust aforesaid then in every such case it shall be lawful for the Governor or other Officer for the time being administering the Government of Our said colony either by Deed or Instrument in writing under his hand and sealed with the Seal of Our said Colony to appoint a new trustee or new trustees such an Trustee or trustees being of the said Fraternity in place trustee or trustees so dying or going to reside out of Our said Colony or desiring to be discharged or refusing or declining or becoming incapable to act as aforesaid and upon every or any such appointment the number of trustees may be increased and upon every such appointment the said piece or parcel of land hereditaments and premises hereinbefore described shall be so conveyed and assured that the same may become vested in the surviving or continuing trustee or trustees jointly with such new trustee or trustees or in such an trustee or trustees solely as the case may require…
Other properties held by Royal Freemasons
10	In addition to the Crown Grant, since about the early 1980s, the Royal Freemasons has purchased or been gifted 35 properties which comprise 201 titles used for aged care services or retirement living, with approximately 30 of those titles having been sold between December 2022 and September 2023.  For ease of reference, and consistently with the plaintiffs’ submissions, I will refer to the properties as the ‘Grant Property’ and the ‘Other Land.’
Freemason Regulations
11	The Crown Grant permits the trustees of the Royal Freemasons to formulate and amend regulations.  The plaintiffs have conducted searches for copies of historical regulations but have not located any regulations prior to 1981.  Since then the following Royal Freemasons’ Homes of Victoria Regulations (‘RFHV’) have been in operation:
(a)	RFHV Regulations made and effective from 10 December 1981;
(b)	RFHV Amendment to Regulations made 15 March 1983, and effective from 8 March 1983; 
(c)	RFHV Amendment to Regulations made and effective 5 April 1984;
(d)	RFHV Amendment to Regulations made and effective 20 December 1984;
(e)	RFHV Regulations as of 19 May 1988 and Repeal of RFHV Regulations 1986 to 1998 made and effective 19 May 1998; and
(f)	RFHV Regulations made 15 January 2015, and effective from 1 February 2015.
12	The earliest known regulations are those referred to in the decision of In re Income Tax Acts (No 1) which refers to regulations made in 1927.  That decision records the objects of the Royal Freemasons:
1.	The Institution is called “the Freemasons Homes of Victoria”, and is hereinafter referred to as “the Institution.”
2.	The object so the Institution are to provide homes on the lands vested in the Trustee for the use of aged Freemasons their wives and widows of Freemasons and for their maintenance and support. 
13	The 1981 Regulations relevantly provide:
Whereas:
(a)	The practice of charity is a basic requirement for all Freemasons and it was in the practice of charity and for charitable purposes alone that what are now the Royal Freemasons’ Homes of Victoria were established and have ever since been conducted.
(b)	In 1867 the Government of Victoria decided to make a grant of land to Trustees “in order to provide a site… for charitable institutions in connection with the Ancient Fraternity of Free and Accepted Masons” and the formal Crown Grant issued on the 7th February, 1868.
(c)	It is an express condition of that Crown Grant that the “land hereby granted and the buildings for the time being thereon shall be at all times hereafter maintained and used as and for the said charitable institutions and offices and conveniences connected with such institutions” and that express condition has been observed and complied with at all times thereafter the charitable institutions referred to in it being the one indivisible complex now known as the Royal Freemasons’ Homes of Victoria.
(d)	The foundation stone for the first cottages provided by the Trustees as a home for the aged and the impotent was laid on the land so granted on the 17th June, 1867 in reliance upon the Crown Grant then is course of being processed; 
(e)	the present trustees as successors of the original Trustees are conducting and will continue to conduct the Royal Freemasons’ Homes of Victoria as a charitable institution being one indivisible complex for the care of the aged and the impotent on the land so granted and on other lands acquired from donation made by Freemasons throughout Victoria from other donations and from Government grants; and 
(f)	considerable sums and gifts of PROPERTY are donated each year by Freemasons and others throughout Victoria for the continuance of the Royal Freemasons’ Homes of Victoria;
14	The Homes Charity is defined as: 
The charitable institution established in and continued since 1868 for the care of the aged and the impotent provided and maintained by the TRUSTEES and being the one indivisible complex comprised of the INDEPENDENT UNITS the HOSTEL and the NURSING HOME.
15	The plaintiff referred to sources suggesting regulations were also made in 1986, but the Royal Freemasons does not have a copy of the 1986 Regulations.  Further regulations were made in 1998 which contains a power of amendment.
16	On 15 January 2015, the then trustees of the Royal Freemasons’ made a new set of regulations which took effect on 1 February 2015 (‘2015 Regulations’) and which are the current regulations. 
17	The 2015 Regulations relevantly provide:
A. 	By Crown Grant dated 7 February 1868 (“Crown Grant”), the Government of Victoria transferred the property known as 45 Moubray Street, Prahran, Victoria, being all that land contained in certificate of title volume 258 folio 448 (“Land”), to three Masonic trustees “in order to provide a site… for Charitable Institutions in connection with the Antient Fraternity of Free and Accepted Masons:
B. 	It is an express conditions of that Crown Grant that the “land hereby granted and the buildings for the time being thereon shall be at all times thereafter maintained and used as and for the said Charitable Institutions and offices and conveniences connected with such Institutions under and in accordance with such regulations as shall from time to time be made by the Governor or other Officer for the time being administering the Government of our said Colony with the consent of the Executive Council thereof and in the meantime under and in accordance with such regulations as shall from time to time be made by the [initial trustees and successor trustees] of the said land and premises… and for no other purpose”. 
C. 	The conditions in the Crown Grant have been observed and complied with at all times thereafter in respect of the payment and application of money received by the trustees from time to time in connection with the Land and its resulting charitable institutions, in particular through care for the aged, the charitable institutions referred to being the one indivisible complex now known as the Homes. 
D. 	The Trustees are conducting and will continue to conduct the Homes as a charitable and benevolent institutions connected with the Freemasons through the Company:
(a)	 To assist the Homes’ clients to live a secure, dignified and rewarding life through the provision of a range of quality care and accommodation operations; 
(b) 	To be regarded both within the ages care sector and by the general community as an organisation which offers innovation and excellence in care to older persons;
(c)	In particular but without limitation, to:
(i) 	respect the individual rights, beliefs, independence and personal choices of each client; 
(ii) 	use best endeavours to provide individualised services and care which acknowledges and meets the physical, emotional, psychological, social, spiritual and religious needs of each client; 
(iii) 	achieve levels of excellence in each service or venture the Homes undertakes; 
(iv) 	maintain the Homes’ rich heritage as a Freemasons charitable institution and promote the ideals of charity and service to the community;
(v) 	improve the service to clients by providing staff with opportunities for personal and professional development in an atmosphere of openness and trust with an expectation for high achievement which will be acknowledged through recognition and reward; 
(vi) 	provide safety in the working environment and freedom from discrimination; 
(vii) 	value and maintain the important contributions made by volunteers; 
(viii) 	protect the Homes’ current and long term financial viability; 
(ix) 	participate in national, state and local associations and professional groups on advocacy issues affecting the aged care sector and 
(x) 	comply with all relevant laws and regulations; and 
(d) 	to do all other unlawful things as are incidental or conducive to the attainment of these objects or any of them or which may be calculated to advance directly or indirectly the interests of the Homes. 
18	In addition to the above, in the 2015 Regulations a specific power is granted to the trustee to enter into an operating agreement with RF Ltd to give effect to the identified charitable purposes.  
Business and Business Structure
19	Under the Aged Care Act 1997 (Cth) only a body corporate is entitled to become a registered provider of such services.  On 25 March 1998, the Royal Freemasons incorporated Royal Freemasons Ltd (‘RF Ltd’), which operates through a Constitution, for that purpose.  The trustees of the Royal Freemasons are members of, and control, RF Ltd.  The incorporation of RF Ltd was purely for compliance purposes and the ownership of the properties and business has been structured so that the charitable purposes are maintained and the trustees retain ultimate control over them.
Is there a single trust?
20	The plaintiffs seek advice as to whether the Other Land forms part of the same trust as the Crown Grant (that is, Royal Freemasons) or whether they are held on different trusts.
21	The operative part of the Crown Grant is as follows:
… in order to provide a site at South Melbourne … for Charitable Institutions in connection with the Antient Fraternity of Free and Acceptable Masons we .. do hereby grant [to the trustees] that piece of land [thereafter described] to have and to hold … subject to conditions, provisions and declarations hereinafter mentioned (that is to say) 
- that the said land hereby granted … shall be maintained and used as and for the said Charitable Institutions and offices and conveniences connected with such institutions under and in accordance with such regulations as shall from time to time be made … by [the trustees] for the time being of the said land and premises.
22	It is clear from the terms of the Crown Grant that its legal effect is to transfer the Grant Property to the trustees subject to a trust for Charitable Institutions in connection with the Royal Freemasons.  The plaintiff submits that Royal Freemasons as a Charitable Institution/trust was constituted as a by-product of the Crown Grant.  That is, the grant created Royal Freemasons as a trust for charitable purposes. So much is uncontroversial, although I note that use of the term ‘institution’ may be confusing and inaccurate.
23	The plaintiffs submit that the Grant Property and Other Land are held by the trustees on a single charitable trust governed by the terms of the Crown Grant, and the regulations in force from time to time.  Mr Gibbs’ evidence in relation to the Other Land is that:
save for the terms of the Crown Grant which affects the Grant Property and so the regulations made pursuant to the Crown Grant, there are no express declarations of trust for the other properties … nor were there during the time Royal Freemasons owned those properties … any express declarations of trust affecting those properties. Rather, the properties … are or were … held by the trustees on trust for Royal Freemasons.
24	There was no question that all of the properties (the Grant Property and the Other Land) have at all times been held by the trustees, in their capacities as trustees, on trust for the same charitable purposes.  That is sufficiently clear from the consistency between the terms of the Crown Grant, and the regulations, and current management structure which includes the roles of RF Ltd under the terms of its Constitution and the Management Agreement under which it operates.  The observations of Bell, Gageler and Keane JJ in Legal Services Board v Gillespie-Jones are apposite:
[U]nless there is something in the circumstances of the case to indicate otherwise, a person who has “the custody and administration of property on behalf of others” or who “has received, as and for the beneficial property of another, something which he is to hold, apply or account for specifically for his benefit” is a trustee in the ordinary sense.
25	There is no evidence that the trustees purchased or acquired any of the Other Land other than as trustees of Royal Freemasons, nor is there any evidence that the Other Land was subject to any other trust.
26	While the Grant Property and the Other Land may be held on trust for the same purposes, the power of the trustees to deal with the Grant Property is subject to specific restrictions, including a prohibition on alienation.  No such restriction applies in relation to the Other Land as the regulations explicitly permit dealing with, and the sale of, trust property.  The plaintiff submitted that such differences are not an impediment to all the land being held on the same trust and that there is no reason why a single trust may not contain different provisions for different assets, or classes of assets.  In that regard it is clear from the regulations that they purport to govern both the Crown Grant and the Other Land.  While the 2015 Regulations contain broad powers of investment and dealing with trust property, which includes sale, they also seek to preserve the restrictions imposed by the Crown Grant.  Regulation 6 of the 2015 Regulations provides that the ‘assets of the Homes may not be paid or applied by the Trustees if to do so would … be in breach of the terms of the Crown Grant.’  I take this to be an indication that the Grant Property and the Other Land were intended to be dealt with by the trustees under a single trust constituted by the Crown Grant and the regulations made thereunder.
27	The only two methods for creating a non-testamentary trust are by transferring property to the proposed trustee to hold upon trust for the proposed beneficiary, or, without transfer of property, by declaration of trust.  As stated above, I am satisfied that the Royal Freemasons trust was created in the former manner by the Crown Grant.  The terms of that trust include the regulations made as authorised by the Grant.  Those regulations empower the trustees to buy and sell property, other than the Grant Property, and thereby to add other properties to the corpus of the trust.  As indicated above, there is no evidence that the trustees purchased or acquired any of the Other Land other than as trustees of the Royal Freemasons, nor is there any evidence that the Other Land was subject to any other trust. 
28	In the circumstances, I am satisfied that the Grant Property and the Other Land forms part of the corpus of the one Royal Freemasons trust.
Do the trustees have power to incorporate a custodian trustee for the purpose of holding trust land?
29	There is some tension between the terms of the Crown Grant on the one hand, and the terms of the regulations on the other, as to who may be appointed trustee. 
30	The Crown Grant is brief in its terms, but provides that:
(a)	the land was granted to Frederick Standish, John Smith and Thomas Reed ‘and to their heirs’;
(b)	regulations may be made by Frederick Standish, John Smith and Thomas Reed ‘or their survivor of them or other the trustees for the time being of the [land] (such survivors or other trustees not being less than two in number at the making of such regulation)…’; and
(c)	if any trustee dies, resides out of the Colony, refuses or declines to act as trustee or becomes incapable then
It shall be lawful for the Governor or other Officer for the time being administering the Government of Our Said Colony either by Deed or by any Instrument in writing under his hand sealed with the Seal of Our Said Colony to appoint a new trustee or new trustees such new trustee or Trustees being of the said Fraternity in place of the trustee or Trustees …
31	The language of the Crown Grant suggest that the intention was that the trustees would be at least two individual Freemasons.  That is apparent from the use of the word ‘heirs’ as part of the definition of the trustee. Since the earliest feudal times the word ‘heir’ has signified ‘the person who by the common law inherited land of freehold tenure.’  Unconstrained by context, ‘heirs’ has been interpreted to mean ‘children,’ ‘next of kin’ and ‘the person or persons appointed by law to succeed to the real estate in question in case of intestacy.’  As noted above, principles of construction require consideration of text and context. In the context of the Crown Grant, I take the word ‘heir’ to mean the successor to the position held by the trustee.  That interpretation is supported by the terms of the Crown Grant that upon the death etc of a trustee, it shall be lawful for the Governor to appoint a new trustee ‘being of the said Fraternity.’  This ability to appoint a trustee is unconstrained by any right of inheritance or survivorship that may otherwise be indicated by the use of the term ‘heir.’  It is apparent that the term ‘heir’ has been used as a synonym for successor to the role of trustee.  While in one sense that may not preclude a corporate trustee, the word heir does have the connotation of an individual rather than a corporation. 
32	Other aspects of the Crown Grant that suggest the trustees are to be individuals are the fact that regulations may be made by ‘not less than two trustees’ and the requirement that new trustees are ‘of the said Fraternity.’
33	The 2015 Regulations on the other hand permit the trustees to ‘form … any company … for the purposes of these regulations or for any ancillary purpose.’  The plaintiffs submit that the incorporation of a custodian trustee would be for charitable purposes or ancillary purposes as it is aimed at reducing cost and reducing use of administrative resources.  I agree.
34	The plaintiffs also submit that ‘incorporating a company does not conflict with any express provision of the Crown Grant.’  I agree insofar as that statement goes, but that is not to say that the incorporation of a custodian trustee as a replacement to the current trustees and the vesting of trust property in that trustee does not conflict with the terms of the Crown Grant.  As indicated above, the terms of the Crown Grant indicate that the trustees are to be individual members of the Royal Freemasons, and as discussed below, that the trustees are not permitted to alienate the Grant Property, which arguably means they are not permitted to transfer their legal title in the property to such a custodian.
Do the trustees have power to transfer the Other Land to the proposed Custodian?
35	As noted above, the Other Lands are held by the trustees for the benefit of Royal Freemason subject to the terms of the regulations governing the trust. Those regulations include powers to:
(a)	‘retain any assets … and may in their absolute discretion … sell, exchange, subdivide, realise … or otherwise deal with any real or personal property comprising or forming part of the assets of Homes in like manner as if the Trustees held the same upon trust for sale’;
(b)	‘when the assets of Homes … is invested in land … generally deal with the land … as if beneficially entitled to it without being responsible for any loss’;  and
(c)	‘sell … dispose of … or otherwise deal with all or any part of the property and rights of the Homes’.  
36	These powers in the regulations are subject to the constraint, also expressed in the regulations, that the trust assets ‘may not be paid or applied by the Trustees if to do so would … be in breach of the terms of the Crown Grant.’ 
37	Having regard to the broad powers to sell, dispose of or otherwise deal with the property of the trust, there is no impediment to the trustees transferring the Other Land to a custodian trustee as proposed.  That would be consistent with the terms of the regulations and not in any way be in breach of the Crown Grant. 
Would the proposed transfer of the Grant Property to a custodian trustee be in breach of the Crown Grant?
38	The Crown Grant includes a prohibition of sorts on the alienation by the trustees of the Grant Property.  The Crown Grant provides that if the trustees:
alienate or attempt to alienate in fee simple or for any less estate or interest the said land and premises or any part thereof save and except under or in pursuance to some law hereinafter to be in force … it shall be lawful for Us Our Heirs Successors … to reenter upon the said land …  and to hold possess and to enjoy the same as fully and effectually to all intents and purposes as if this Grant had not been made …
39	The plaintiffs submit that the transfer of the legal title to a custodian trustee company as proposed ‘could potentially constitute alienation in fee simple,’ but submit that ‘the words of the Crown Grant should be read down such that the restriction would not apply unless the equitable estate in fee simple was also alienated.’  The plaintiffs submit that this would be consistent with the text of the Crown Grant as a whole and its intent.
40	The principles of construction of a trust instrument are not controversial: 
(a)	principles of construction of contracts apply equally to trusts;
(b)	the rights and liabilities of parties are determined objectively, by reference to its text, context and purpose.  Regard must be had to the language used and its ordinary meaning, with consideration given to what a reasonable businessperson would have understood the terms to mean in the circumstances;
(c)	it may be necessary, particularly in cases of ambiguity, to have regard to the genesis of the transaction, and its background and context; and
(d)	post-contractual conduct is inadmissible to construe the terms of the contract. However, the parties’ subsequent communications may be relevant to determine whether the parties intended to enter into a binding contract.
41	I accept that the proposed transfer to a custodian trustee would be consistent with the trustees retaining control over the trust for the identified charitable purposes, and that it would be expedient to do so.  But that does not mean that such a transfer would not be an ‘alienation’ of an interest that the trustees hold in that land within the meaning of that word in the grant.
42	The Macquarie dictionary defines alienation as ’a transfer of the title to property by one person to another by conveyance or will (distinguished from inheritance)’. 
43	A number of cases have considered the meaning of the word ‘alienation.’  In Di Carlo v Kashani-Malaki Muir JA (with whom Fraser and Gotterson JJA agreed) held: 
Counsel for the appellant submitted that virtually everything done in the course of litigation involves, in some way, an alienation of property or the making of a contract. The submission attributes too broad a meaning to “alienating”. In Australia, the word is normally used in relation to the disposition of interests in real property. (See eg Lang v Castle [1924] SASR 255 at 263–264; and Re Symon, Public Trustee v Symon [1944] SASR 102 at 108.) I do not suggest that “alienation” in the context under consideration is so restricted, but for property to be “alienated”, it must be disposed of (Re Gaskell & Walters’ Contract [1906] 2 Ch 1 at 10). An act which may lead ultimately to disposition will not suffice. But, of course, an agreement to dispose of property may effect the disposition of an equitable interest in it.
44	In GPT Re Ltd v Lend Lease Real Estate Investments Ltd, White J held that:
“Alienation” refers to a parting with property and includes the parting with some interest in the property.
45	White J went on to hold that ‘each of the transactions, whether sale, assignment, transfer, disposition, or declaration of trust would be an alienation of the legal or beneficial ownership in the property’.
46	In Lang v Castle, Napier J considered the meaning of ‘alienation’ in the Crown Lands Amendment Act 1917, as follows:
the expression ‘every form of alienation’ cannot be limited to dispositions of the registered estate. The pre-existing law had dealt exhaustively with the subject matter, and this section is clearly intended to go further. It must, therefore, be intended to prohibit, to some extent, what would otherwise be effective dispositions of the beneficial ownership. In my view, ‘alienation’ in this context is the analogue of ‘conveyance,’ as defined by Lord Cairns in Credland v Potter, (1874) LR 10 Ch 8, at p12 it means the act of the owner in disposing of any interest in the property.
47	Re Symon, Public Trustee v Symon the Court considered the meaning of prohibition against alienation in the Crown Lands Act 1929-1941 and held
‘Alienation’ denotes the act, or series of acts, of alienating, and takes place whenever the owner of land, or any interest therein, so acts as to divest himself of his interest or some lesser interest, and to vest the same in another person. 
48	In Re Gaskell & Walters’ Contract, the Court of Appeal held:
It is, however, urged that under s. 8 of the Forfeiture Act, 1870, a felon is incapable of “alienating or charging any property,” and that, therefore, his deed is void. This is a point of some difficulty, but upon the whole we think that a deed by which the felon simply grants the property to a grantee and his heirs to hold to the grantee and his heirs, to the use of himself, his heirs and assigns, is not an “alienation.” Alienation implies a transaction by which property is given to another person, but here there is no other person, unless a grantee to uses can be so regarded. The case of Lord Lilford v. Attorney-General L. R. 2 H. L. 63. supports the view that such a disentailing assurance is not an alienation, and that it operates rather by way of enlargement of the estate tail. Assuming that a deed of the nature above indicated is executed by the felon and enrolled, the fee simple thus acquired will vest in the administrator under s. 10, and by this means a good title can be made. 
49	It is apparent from these authorities that the generally accepted definition of ‘alienation’ includes a transfer of ‘some interest’ in the property including by way of a declaration of trust or transfer of either legal or beneficial title.  I do not consider that, as a matter of construction in this case, the word ‘alienation’ can be read down to mean only the transfer of legal and beneficial title.  That is particularly so having regard to the Crown Grant which uses the phrase:
alienate or attempt to alienate in fee simple or for any less estate or interest the said land and premises or any part thereof.
50	The fact that the trustees may retain de facto control over the trust property, and will remain subject to all the trustee’s responsibilities and liabilities, does not alter that conclusion.  Strictly speaking the transfer of the Grant Property to a custodian would mean that the individual trustees would cease to be trustees of that land in the ordinary sense, as they would lack one of the four elements of a trust since the trust property would not be vested in them.
51	Consistently with the authorities cited above, the transfer of the Grant Property to a custodian trustee as proposed would be the transfer by the trustees of an interest in that land, and therefore an ‘alienation’ of that interest within the meaning of the Crown Grant.  The fact that the custodian trustee would remain controlled by the transferors does not render that transfer any less an alienation. 
52	Having said that, on their proper construction, the terms of the Crown Grant as to alienation do not operate to automatically terminate the Crown Grant upon the event of alienation, rather they give rise to a right of re-entry which may be exercised in that event.  But until such right is exercised, the Crown Grant would continue to operate as an effective disposition of title subject to the right to re-enter.  In that sense the title of the trustees to the Grant Property is a conditional interest. 
53	Having regard to the above, the impediments currently facing the trustees are that pursuant to the grant: the trustees are to be at least two individual members of the Royal Freemasons; and those trustees may not transfer any interest in the Grant Property to any custodian trustee.  The remaining questions therefore are:
(a)	should orders be made under s 63 of the Trustees Act conferring power on the trustees to incorporate the Custodian trustee and transfer the Grant Property to it?
(b)	should an order be made pursuant to r 54.02(2)(c) of the Rules, approving the incorporation of the Custodian Company and the transfer of the Grant Property to it?
Section 63 of the Trustee Act 
54	Section 63 of the Trustee Act provides:
Power of Court to authorize dealings with trust property
(1)	Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument (if any) or by law, the Court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose on such terms and subject to such provisions and conditions (if any) as the Court thinks fit and may direct in what manner any money authorized to be expended, and the costs of any transaction are to be paid or borne as between capital and income.
(2)	The Court may from time to time rescind or vary any order made under this section, or may make any new or further order.
(3)	An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.
55	Section 63 confers ‘very large and important powers’ on the Court which are expressed in ‘very wide and beneficial terms’ and must be liberally construed.  There are three conditions to the exercise of the power, the disposition or transaction must be: ‘in the management or administration’ of the property; ‘expedient’; and not otherwise able to be effected because of the absence of power.
Is there an absence of power?
56	Having regard to the discussion above, it is apparent that the third condition is satisfied.  The fact that the Crown Grant is a conditional interest, and alienation would not necessarily terminate it, does not alter that conclusion.  An alienation would place the property at risk of loss to the Royal Freemasons.  The relevant ‘power’ for the purposes of s 63 of the Trustee Act should be interpreted as the power to transfer the Grant Property to a custodian trustee without risk of such loss.  That is a power it does not have.
Is the proposed course in the management and administration of the trust?
57	The words ‘management and administration of the property’ are ‘of wide import and pick up everything that a trustee may do in practical or legal terms in respect of trust property.’  ‘Management’ has been held to refer to ‘the management of trust property in a commercial or practical sense.’  ‘Administration’ has been held to include the exercise of ‘all of the legal powers and duties which might be possessed by a trustee in respect of trust property.’
58	The proposal to incorporate a custodian and transfer trust property concerns the management and administration of the trust in the relevant sense.  The sole function of the proposed custodian would be to hold trust assets subject to control by those individuals who would otherwise be trustees.  The issue concerns the management of a number of different properties.
Is the proposed course expedient?
59	’Expedient’ is a wide and flexible criterion that accords with ‘advantageous’, ‘desirable’ and suitable to the circumstances of the case.’  In the case of a charitable trust, expediency must be determined by reference to the objects or purposes prescribed in the trust instrument.  In non-charitable trusts, it must be determined by reference to the interests of the beneficiaries and in the context of the trust as a whole.
60	I am satisfied that the proposed transfer of the trust property to a custodian would be expedient.  It will avoid significant time and expense of the multiple property transfers currently required every time a trustee is replaced.  And, significantly, there will be no alteration to the charitable purposes of, or beneficial interests under, the trust.  The result will be that there will be more money available for the charitable purposes of the trust and significant savings in time for  those involved in the management of the trust. 
61	In my opinion the proposed grant of power to the trustees to incorporate a Custodian Company and transfer the Grant Property to it, subject to ongoing control as proposed, satisfies the requirements of s 63 of the Trustee Act and ought be approved.
Rule 54.02(2)(c) of the Rules
62	The plaintiff also applies for advice pursuant to r 54.02(2)(c) of the Rules which extends to the approval of entering into, and performance of, any transaction.
63	Rule 54.02(2) of the Rules provides:
Relief without general administration
(1)	A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.
(2)	Without limiting paragraph (1), a proceeding may be brought for—
…
(c)	an order—
(i)	approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii)	directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.
64	The central question is whether the court is satisfied of the propriety of the course proposed.  That calls for consideration of whether there is power for the trustee to do what is proposed, as well as the propriety of the proposed exercise of power and that is not improper.  It is apparent from the authorities that the court can only authorise transactions that are within the power of the trustee.
65	Having regard to my conclusion that the trustees do not have power to transfer the Grant Property to a custodian incorporated for that purpose, it is not appropriate to make orders ‘approving’ any such transaction or directing such steps to be taken under r 54.02(c) of the Rules.
66	Having regard to my conclusions that the trustees do have power to transfer the Other Land to a custodian, and the benefits associated with that course, insofar as it is required, I consider it would be appropriate to make an order approving such a transaction.
Conclusion
67	In answer to the questions posed:
(a)	the Grant Property and Other Land are held by the trustees for the benefit of the Royal Freemasons Homes on terms as set out in the Crown Grant and the regulations applicable from time to time, which are currently the 2015 Regulations;
(b)	in respect of the Other Land, and any future held land subject to the existing regulations or their equivalent, the trustees have power to incorporate a company, with the trustees of the Royal Freemasons as its shareholders and directors, to act as custodian of the Other Land and to transfer the Other Land to that custodian;
(c)	in respect of the Grant Property, if the trustees transfer the land to a custodian trustee, that will constitute an ‘alienation’ of an interest in the land for the purposes of the Crown Grant rendering it lawful for the Crown to re-enter, possess and enjoy the same as if no grant had been made. The trustees do not have power to amend the regulations to authorise the transfer of the Grant Property to a Custodian Company;
(d)	it is appropriate to grant the trustees power pursuant to s 63 of the Trustee Act to incorporate a Custodian Company to act as bare trustee for the Grant Property and to transfer the Grant Property to that custodian subject to the safeguards proposed; and
(e)	having regard to the limitations in the grant as to who can be trustee and having regard to the consequences of any alienation, it is not appropriate to make orders pursuant to r 54.02(2)(c) authorising the transfer of the Grant Property to a custodian.
68	The plaintiff has proposed that if the Court were minded to grant relief, then the matter should be adjourned to permit the formulation of appropriate orders. I propose to allow such time and will consider the proposal in due course. 

SCHEDULE OF PARTIES

		
	S ECI 2022 04949	

BETWEEN:		

WILLIAM JOHN HAYES as Trustee for the ROYAL FREEMASONS’ HOMES OF VICTORIA	First Plaintiff 	
		
DAVID IAN GIBBS as Trustee for the ROYAL FREEMASONS’ HOMES OF VICTORIA	Second Plaintiff	
		
MYLES GRAHAM KING as Trustee for the ROYAL FREEMASONS’ HOMES OF VICTORIA	Third Plaintiff	
		
ROYAL FREEMASONS LTD (ACN 082 106 821)	Fourth Plaintiff	
		
- v -		
		
ATTORNEY-GENERAL OF VICTORIA	Defendant	

APPENDIX

VICTORIA by the Grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith and so forth TO ALL TO WHOM these presents shall come greeting WHEREAS the Crown Land hereinafter described as since the commencement of the Act of the Parliament of our Colony of Victoria Number 145 (being the Act to consolidate and amend the Laws relating to the sale and occupation of Crown lands) been lawfully permanently reserved from sale by the Governor of Our said Colony with the advice of the Executive Council of the same for the purposes hereinafter appearing and possession of such land has been given NOW KNOW YE that in order to provide a site at South Melbourne in our said Colony for Charitable Institutions in connection with the Antient Fraternity of Free and Accepted Masons WE of our own Special grace Have granted and for us Our Heirs and Successors DO hereby grant unto FREDERICK CHARLES STANDISH of the City of Melbourne in the said Colony of Victoria Esquire District Grand Master under the Constitution of the United Grand Lodge of England JOHN THOMAS SMITH of the same place Esquire Provincial Grand Master under the Constitution of the Grand Lodge of Ireland and THOMAS REED of the same place Esquire Provincial Grand Master under the Constitution of the Grand Lodge of Scotland and to their heirs ALL that piece of land in Our said Colony containing Five acres and twenty-one perches or thereabouts situated in the County of Bourke Parish of South Melbourne commencing at the South-East angle of the site being the point of intersection of the West side of the Punt Road by the North side of the Road forming the North boundary of the Wesleyan Grammar School Reserve thence by the last named Road bearing South eighty-nine degrees twenty-four minutes West ten chains twenty-four links to the South-East angle of Allotment forty two  thence by that Allotment bearing North thirty-six minutes West five chains three links thence by the Recreation Reserve bearing North eighty-nine degrees twenty-four minutes East ten chains sixteen links to the Punt Road and thence by that Road bearing South one degree thirty minutes  East five chains three links to the point of commencement and shown with the measurements and abuttals thereof in the Map drawn in the margin of these Presents and therein coloured yellow Together with all the rights of members privileges and appurtenances whatsoever to the same belonging or in anywise appertaining Reserving and excepting nevertheless unto Us Our Heirs and Successors all gold, silver and coal with full and free liberty and power to search and dig for win work and take away the same and with the right of full and free ingress egress and regress into out of and upon the said land for such purposes And also reserving and excepting the use of all such parts of the said land as shall be required for making railways canals watercourses reservoirs drains or sewers over in upon or through the same with full and free liberty of ingress egress and regress into out of and upon the said land for such purposes AND also reserving and excepting unto our subjects and people in the said Colony the public use of all such parts of said land as shall from time to time be proclaimed as or otherwise become either a main or district road or other public highway thoroughfare TO HAVE AND TO HOLD the said land and premises unto the said Frederick Charles Standish, John Thomas Smith and Thomas Reed and to their heirs PROVIDED nevertheless and we do hereby expressly declare that this Our Royal Grant is and shall be subject to the conditions provisions and declarations hereinafter mentioned (that is to say) That the said land hereby granted and the buildings for the time being thereon shall be at all times hereafter maintained and used as and for the said Charitable Institutions and offices and conveniences connected with such Institutions under and in accordance with such regulations as shall from time to time be made by the Governor or other Officer for the time being administering the Government of our said Colony with the consent of the Executive Council thereof and in the meantime under and in accordance with such regulations as shall from time to time be made by the said Frederick Charles Standish, John Thomas Smith and Thomas Reed or the survivor of them or other trustees for the time being of the said land and premises (such survivors or other trustees not being less than two in number at making of such regulation) and for no other purpose whatsoever PROVIDED also and we do hereby further declare the if the said Frederick Charles Standish, John Thomas and Thomas Reed or the survivors or survivor of them or other trustees or trustee of said land and premises shall permit or suffer said land and premises or any part thereof to be used for or applied to any other than the purpose aforesaid or to become out of proper order or repair or shall alienate or attempt to alienate in fee simple or for any less estate or interest the said land and premises or any part thereof save and except under or in pursuance to some law hereafter to be in force within the said Colony it shall be lawful for Us Our Heirs and Successors by any person or persons duly authorised in that behalf by the Governor or other Officer for the time being administering the Government of our said Colony to reenter upon the said land or any part thereof and to hold possess and enjoy the same as fully and effectually to all intents and purposes as if this Grant had not been made PROVIDED also and we do hereby further declare that if the said Frederick Charles Standish, John Thomas Smith and Thomas Reed or any of them or any trustee or trustees to be appointed as hereinafter provided shall die or go to reside out of Our said Colony or shall desire to be discharged from or refuse or decline or become incapable to act in trust aforesaid then and in every such case it shall be lawful for the Governor or other Officer for the time being administering the Government of Our said Colony either by Deed or by any Instrument in writing under his hand sealed with the Seal of Our said Colony to appoint a new trustee or new trustees such an Trustee or trustees being of the said Fraternity in place trustee or trustees so dying or going to reside out of Our said Colony or desiring to be discharged or refusing or declining or becoming incapable to act as aforesaid and upon every or any such appointment the number of trustees may be increased and upon every such appointment the said piece or parcel of land hereditaments and premises hereinbefore described shall be so conveyed and assured that the same may become vested in the surviving or continuing trustee or trustees jointly with such new trustee or trustees or in such an trustee or trustees solely as the case may require IN TESTIMONY whereof we have caused this Our Grant to be sealed with the Seal of our said Colony WITNESS our trusty and well beloved SIR JOHN HENRY THOMAS MANNERS SUTTON Knight Commander of the Most Honourable Order of the Bath Governor and Commander in Chief of our said Colony of Victoria at Melbourne this Seventh day of February in the thirty-first year of Our Reign and in the year of Our Lord One thousand eight hundred and sixty eight.