TRUSTS–ADVICE/CY PRÈS APPLICATION REQUIRED FORM[1]
Please complete, date, and sign the form on page 5 and return it to Rhiannon Abondio, Lawyer at
Advice/Cy près application required
Name of Church body/organisation, which considers legal advice/a cy près applicationis required, and date of meeting (attach Minutes of meeting)[2]
Name and position of contact person
Telephone number of contact person (including mobile where possible)
Email address of contact person
(or postal address if no email)
Reason advice/a cy près application is required (i.e. question/s to be answered)
Preferred date on which advice is required, including reason for specified date (advice by this date cannot be guaranteed given staffing constraints)
Costs of legal advice
For Victoria
On 19 August 2015, The Uniting Church in Australia Property Trust (Victoria) resolved ‘to engage the services of Synod in-house lawyers to undertake any necessary legal work’ in relation to charitable trusts. On 3 August 2016, it agreed that such services would be charged for in accordance with the applicable costs scales for lawyers. Therefore legal costs for advice (and if necessary, for preparation of a cy près application to change the terms of the trust) will be payable in this case.
Where it is necessary to make a cy près application to the Attorney-General for Victoria(where the capital of the trust is less than $500,000) orthe Supreme Court of Victoria(where the capital of the trust is $500,000 or more), a provision will be included in the application for the reasonable costs and disbursements[3] of the application to be paid from the trust(where the trust consists of money) orthe proceeds of sale (where the trust comprises real property which it is proposed to sell).
Where it is necessary to make an application to the Supreme Court of Victoria, the legal costs and disbursements of the Victorian Government Solicitor in acting for the Attorney-General for Victoria will also be payable from the trust (where the trust consists of money)or the proceeds of sale (where the trust comprises real property which it is proposed to sell).
However in the interim, the requesting Church body may be required to fund the disbursements.
For Tasmania
On 19 August 2015, The Uniting Church in Australia Property Trust (Tas.) resolved ‘to engage the services of Synod in-house lawyers to undertake any necessary legal work’ in relation to charitable trusts. On 3 August 2016, it agreed that such services would be charged for in accordance with the applicable costs scales for lawyers. Therefore legal costs for advice (and if necessary, for preparation of a cy près application to change the terms of the trust) will be payable in this case.
Where it is necessary to make a cy près application to the Attorney-General for Tasmania(where the trust property consists of or includes real property, the sum of $300,000 or less, or where the trust property consists of personal property only, the sum of $150,000 or less)orthe Supreme Court of Tasmania (where the trust property consists of or includes real property and is more than $300,000, or where the trust property consists of personal property only and is more than $150,000), a provision will be included in the application for the reasonable costs and disbursements[4] of the application to be paid from the trust(where the trust consists of money) orthe proceeds of sale (where the trust comprises real property which it is proposed to sell).
Where it is necessary to make an application to the Supreme Court of Tasmania, the legal costs and disbursements of the Attorney-General for Tasmania will also be payable from the trust (where the trust consists of money)or the proceeds of sale (where the trust comprises real property which it is proposed to sell).
However in the interim, the requesting Church body may be required to fund the disbursements.
If advice is required about expenditure from an individual trust
Trust details
Trust capital at end of previous financial year
(If not known, please refer to the Appendices to the most recent Synod of Victoria and Tasmania Annual Report or attach last UCA Funds Management statement)
Total amount of accumulated income at end of previous financial year
If advice is required before the sale of real property e.g. if real property was given by a Will or other trust instrument
Attach all the following / Comment
Certificate of Title[5]
Register Search Statement[6] (Title Search)
Historical Search Statement[7] (Title History)
Map[8] identifying purpose of all buildings e.g. Church, hall etc.
Map[9] plotting and identifying the property to be sold and all proximate churches of The Uniting Church in Australia
Sworn valuation by a licensed valuer, or market appraisal by a real estate agent
Any current lease
Photo of each building on any relevant property[10]
Ifadvice is required after real property has been sold
Attach all the following / Comment
Settlement statement[11]
Certificate of Title[12]
Register Search Statement[13] (Title Search)
Historical Search Statement[14] (Title History)
Map[15] plotting and identifying the sold property and all proximate churches of The Uniting Church in Australia
If advice is required after the dissolution/amalgamation or division of Congregation
Attach all the following / Comment
Resolutions of each of the-
1.Congregation/s
2.Presbytery
3.Standing Committee
relating to the dissolution/amalgamation or division.
Memorandum of Understanding between the amalgamated Congregations (if applicable)
Map[16] plotting and identifying dissolved/amalgamated or divided Congregation/s and all proximate Congregations of The Uniting Church in Australia
If advice is required in relation to a project of The Uniting Church in Australia (e.g. Asset Strategy Program)
Description of the proposed project for which advice is required (approx. 300 words, including The Uniting Church in Australia staff managing the project)
Consultants engaged by The Uniting Church in Australia (and the role of each consultant)
Signed by:
......
Date:
. . . . / . . . . . / ......
Endorsement of Property Officer
For Victoria
I am of the opinion, on the basis of the circumstances outlined above, that it is necessary that legal advice be obtained (and if applicable for a cy près application to be investigated and prepared), and I sign this document on behalf of The Uniting Church in Australia Property Trust (Victoria), pursuant to resolution 16/41.2.1 of The Uniting Church in Australia Property Trust (Victoria) made on 28 September 2016.
Signature:
......
James Prentice Milne, Property Officer
Date:
. . . . / . . . . . / ......
For Tasmania
I am of the opinion, on the basis of the circumstances outlined above, that it is necessary that legal advice be obtained (and if applicable for a cy près application to be investigated and prepared), and I sign this document on behalf of The Uniting Church in Australia Property Trust (Tas.).
Signature:
......
James Prentice Milne, Property Officer
Date:
. . . . / . . . . . / ......
1
[1] Draft as at 8 February 2017.
[2]Church Council Meeting of [Name of Church] on [Day Month Year].
[3] Out of pocket expenses such as the costs of obtaining a copy Will/s; Advice of Counsel (barristers), including Senior Counsel where necessary; and statutory fees for cy près applications.
[4] Out of pocket expenses such as the costs of obtaining a copy Will/s; Advice of Counsel (barristers), including Senior Counsel where necessary; and statutory fees for cy près applications.
[5] Obtain from Senior Lawyer – Property or Alan Zhang, Conveyancing Clerk
[6] Obtain from Senior Lawyer – Property or Alan Zhang, Conveyancing Clerk
[7] Obtain from Senior Lawyer – Property or Alan Zhang, Conveyancing Clerk
[8] or Google Maps
[9] or Google Maps
[10] is a good source
[11]Obtain from Senior Lawyer – Property or Alan Zhang, Conveyancing Clerk
[12]Obtain from Senior Lawyer – Property or Alan Zhang, Conveyancing Clerk
[13]Obtain from Senior Lawyer – Property or Alan Zhang, Conveyancing Clerk
[14]Obtain from Senior Lawyer – Property or Alan Zhang, Conveyancing Clerk
[15] or Google Maps
[16] or Google Maps