Baptist Churches of New South Wales Property Trust Act 1984 (NSW)

Baptist Churches of New South Wales Property Trust Act 1984 No 4 An Act to constitute the Baptist Churches of New South Wales Property Trust and to define its powers, authorities, duties and functions; and to provide for the vesting of certain property in the Trust. Part 1 Preliminary 1 Name of Act This Act may be cited as the Baptist Churches of New South Wales Property Trust Act 1984. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: appointed day means the day appointed and notified pursuant to section 2 (2). Assembly means an Assembly constituted under the by-laws. Baptist Church means a congregation affiliated with the Baptist Union. Baptist Union means The Baptist Union of New South Wales as constituted by and under the provisions of the Incorporation Act. by-laws means by-laws of the Baptist Union made under the Incorporation Act. congregation means all of the persons: (a) whose names appear as church members in the roll or register of any association or society, (b) who hold as their general tenets the doctrines set forth in Schedule A to the Incorporation Act, and (c) who are in the habit of meeting together for the public worship of God in any church building or in any other building, and each of those persons shall be deemed to be a member of the congregation consisting of all of those persons. deacon, in relation to a congregation, means: (a) a person elected to a position of deacon of the congregation, or (b) a person elected to a position of leadership in the congregation (whether the holder of the position is described as an elder or by any other term). district means an area of land that the Executive Committee has determined in writing is a district for the purposes of this Act. District Association means an association of Baptist Churches recognised as such by the Baptist Union in accordance with the by- laws. Executive Committee means the Executive Committee of the Baptist Union. functions includes powers, authorities and duties. Incorporation Act means the Baptist Union Incorporation Act 1919. property includes real and personal property and any estate or interest therein. secretary, in relation to a congregation, means: (a) a person elected to the position of secretary of the congregation, or (b) if no person has been elected to a position of that title—a person elected to a position that exercises the responsibilities of a secretary of the congregation (whether the holder of the position is described as a Church secretary, an administrator or a public officer, or by any other term). Trust means the Baptist Churches of New South Wales Property Trust constituted by this Act. trust property means property vested in the Trust by or pursuant to this Act. (2) A reference in this Act to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) The provisions of this Act, other than Schedule 4, do not affect the operation of Schedule 4 (Transferred provisions—Saint Andrew's Cathedral Site Agreements and Central Baptist Church Act 1936). 5 Saving of certain rights Nothing in, or done under, this Act shall operate to deprive any person of any right arising out of contract or tort that was vested in the person immediately before the appointed day, and any such right that, immediately before that day, was enforceable in respect of any property vested in the Trust by this Act may be enforced against the Trust. Part 2 Constitution of the Trust 6 Constitution of the Trust (1) There is hereby constituted a corporation under the name of "Baptist Churches of New South Wales Property Trust" which shall, subject to this Act, consist of 7 persons elected by the Assembly. (2) At each annual Assembly convened after the appointed day an election of members of the Trust shall be held to fill the offices of the members of the Trust which will become vacant at the end of that Assembly. (3) A person is not eligible to be elected as a member of the Trust unless the person is a member of a Baptist Church affiliated with the Baptist Union. (4) Subject to this Act, David Frederick Baker, Frederick James Church, Harry John Kidd, Bruce Ashby King, Roger Franklyn Peffer, Ivan Bruce Thornton and Peter Lawrence Young shall: (a) be deemed, for the purposes of subsection (1), to have been duly elected at an Assembly as members of the Trust for a term of office commencing with the appointed day and extending until the end of the annual Assembly next succeeding the appointed day, and (b) if otherwise qualified, be eligible for re-election as members of the Trust. (5) Should any person specified in subsection (4) not be living on the appointed day, a casual vacancy shall be deemed to have arisen on that day in the office to which he would have been deemed to have been elected pursuant to that subsection had he been living on that day. 7 Terms of office of members (1) At the annual Assembly next succeeding the appointed day, 2 members of the Trust shall be elected for a term of office of 3 years, 2 members shall be elected for a term of office of 2 years and 3 members shall be elected for a term of office of 1 year. (2) A member of the Trust elected subsequently to those elected at the annual Assembly next succeeding the appointed day shall be elected for a term of office of 3 years. (3) Subject to section 9, each of the members of the Trust elected after the appointed day at an annual Assembly shall: (a) take office as a member of the Trust immediately after the end of that Assembly, (b) hold office as a member of the Trust until the end of the annual Assembly convened in the last year of the term of years for which the member was elected, and (c) if otherwise qualified, be eligible for re-election as a member of the Trust. 8 Quorum Four members of the Trust shall constitute a quorum for the purpose of any meeting of the Trust, and a decision supported by a majority of the votes of the members present and voting at a meeting of the Trust at which a quorum is present shall be the decision of the Trust. 9 Vacation of office A member of the Trust shall be deemed to have vacated office if the member: (a) dies, (b) resigns the office by notice in writing to the Trust and the Trust resolves to accept the resignation, (c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, (d) becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958 or a person under detention under Part 7 of that Act, (e) (Repealed) (f) is absent from 3 consecutive meetings of the Trust, notice of which has been given to the member, without prior leave of absence having been granted by the Trust, (g) is removed from office by resolution of an Assembly, but only if opportunity has been given to the member to address the meeting of the Assembly at which the resolution is considered before the resolution is made, (h) ceases to be a member of a Baptist Church affiliated with the Baptist Union, (i) is or becomes an employee of the Trust or the Baptist Union or of any committee or agency of the Baptist Union, or (j) is removed from office by or pursuant to the by-laws. 10 Casual vacancies (1) Where, by reason of the occurrence of casual vacancies, the number of members of the Trust for the time being holding office is reduced to less than 4, the continuing members of the Trust shall appoint, as members of the Trust filling the vacancies until the end of the next succeeding annual Assembly, persons (who are eligible to be elected as members of the Trust) not fewer in number than that required to increase to 4 the number of members for the time being holding office as members of the Trust. (2) Where the continuing members of the Trust appoint a person under subsection (1), they shall nominate the person the vacancy in whose office shall be filled by the person so appointed. (3) Except as provided by subsection (1), where there is a casual vacancy in the membership of the Trust, the continuing members of the Trust may appoint a person (who is eligible to be elected as a member of the Trust) to fill the vacancy. (4) A person appointed under this section shall: (a) take office as a member of the Trust upon being so appointed, and (b) hold office as a member of the Trust for the balance of the term of office of the member the vacancy in whose office the person was appointed to fill. (5) Section 9 applies to and in respect of a member of the Trust appointed under this section in the same way as it applies to and in respect of an elected member of the Trust. 11 By-laws Subject to this Act, the by-laws may make provision for or with respect to the election, admission, retirement and removal from office of members of the Trust and the regulation and procedure of the first meeting of the Trust. 12 Officers and employees of the Trust (1) The Trust may: (a) appoint a chairman of the Trust (being one of the members of the Trust), and a secretary and treasurer of the Trust (neither of whom needs to be a member of the Trust) and also the time, place and procedure of all meetings of the Trust after the first, (b) fix the terms of office of the chairman, secretary and treasurer of the Trust, (c) retire or remove from office the chairman, secretary or treasurer of the Trust for such reason as it considers sufficient or in such circumstances as are defined by it, and (d) define the functions of members of the Trust and of the persons for the time being holding the offices of chairman, secretary and treasurer of the Trust. (2) Without affecting the generality of section 50 of the Interpretation Act 1987, the Trust may: (a) employ staff and make provision for payment of salaries, wages, expenses, allowances, superannuation, commissions, emoluments and other remuneration for the secretary, treasurer and staff of the Trust, and (b) make provision for the payment of all other expenses and liabilities incurred in the exercise of its functions under this Act. (3) Nothing in subsection (2) affects any requirement made by this Act with respect to property vested in the Trust. 13 Common seal (1) The members for the time being of the Trust shall have the custody of its common seal and, subject to subsections (2) and (3), the form of the common seal and all other matters relating thereto shall be as determined by the Trust. (2) The common seal of the Trust shall not be affixed to any instrument except in pursuance of a resolution of the Trust and every instrument to which the common seal is so affixed shall be signed by 2 members of the Trust and countersigned by the secretary of the Trust or another person duly appointed by the Trust so to do. (3) An instrument purporting to have been: (a) sealed with the common seal of the Trust, (b) signed by not less than 2 members of the Trust, and (c) countersigned by the secretary of the Trust or another person duly appointed by the Trust so to do, shall, in the absence of evidence to the contrary, be deemed to have been executed in accordance with subsection (2). 14 Form and execution of certain contracts etc (1) Any deed, contract, agreement or other instrument relating to any property or matter which, if made or executed by a natural person, would be by law required to be in writing under seal may be made or executed on behalf of the Trust in writing under the common seal of the Trust. (2) Any contract, agreement or other instrument relating to any property or matter which, if made or executed by a natural person, would be by law required to be in writing signed by the party to be charged or bound thereby may be made or executed on behalf of the Trust in writing by any person acting under its authority express or implied. 15 Execution under seal by agent etc The Trust may, by writing under its common seal, expressly empower any person, in respect of any specified matter, as its agent or attorney to execute any deed, contract, agreement or other instrument on its behalf, and any such document signed by any such agent or attorney on behalf of the Trust and under his or her seal shall bind the Trust and have the same effect as if it were under its common seal. Part 3 Acquisition and vesting of trust property 16 Vesting of certain property in the Trust (1) Subject to this Act, any property that, immediately before the appointed day, was vested in the Baptist Union upon trust: (a) for any congregation, society, District Association or other unincorporated association of persons (including a committee or agency of the Baptist Union), (b) for any person, or (c) for any charitable or other purpose, is hereby divested from the Baptist Union and is hereby vested, without any further conveyance or transfer, in the Trust. (2) For the avoidance of doubt, the vesting effected by subsection (1): (a) includes all property that, immediately before the appointed day, was vested in the Baptist Union pursuant to section 10 of the Incorporation Act as in force before that day, and (b) excludes: (i) all property that, immediately before the appointed day, was vested in the Baptist Union beneficially in its own right, and (ii) the property known as 58 Parramatta Road and 70 Arundel Street, Glebe, being the whole of the land comprised in the folio of the Register kept under the Real Property Act 1900 and numbered Volume 7037 Folio 147. (3) The vesting effected by subsection (1) shall not affect: (a) any reservation, mortgage, charge, encumbrance, lien or lease that, immediately before the appointed day, affected the property so vested, or (b) except as provided by subsection (4), any trust on which that property was held immediately before that day. (4) Where property vested in the Trust by subsection (1) was, immediately before the appointed day, held by the Baptist Union on behalf of a congregation upon the trusts and subject to the provisos and conditions set out in Schedule B to the Incorporation Act (whether or not the property was vested in the Baptist Union under section 10 of that Act), the property shall, on its being so vested in the Trust: (a) cease to be held on behalf of the congregation upon those trusts and subject to those provisos and conditions, and (b) be held by the Trust on behalf of the congregation subject to the provisions of this Act relating to any such property. (5) No attornment to the Trust by any lessee of property vested in it by this section shall be necessary. (6) Any instrument, within the meaning of the Stamp Duties Act 1920, executed only for: (a) a purpose ancillary to, or consequential on, the operation of subsection (1) or (3), or (b) the purpose of giving effect to either or both of those subsections, is not chargeable with stamp duty. (7) Nothing in this section revives any trust extinguished by the operation of section 11 of the Incorporation Act as in force before the appointed day. 17 Trust property of Baptist Union committees etc (1) Any property that, on or after the appointed day, is vested in the Baptist Union upon trust for any committee or agency of the Baptist Union and which is required to be applied: (a) for the benefit of any congregation, or (b) where there is no congregation in the district in which the property is situated, for the purpose of: (i) the public worship of God by a congregation when the congregation is formed in the district in which the property is situated, (ii) the instruction of children or adults, or both, or (iii) the provision of a residence for a pastor of the Baptist denomination, shall, upon the request of the committee or agency and without any further conveyance or transfer, become vested in the Trust upon trust for that committee or agency and shall be applied for the benefit of that congregation or for that purpose, as the case may require. (2) The Trust shall, at the request of any committee or agency of the Baptist Union, act as trustee for the committee or agency, as the case may be, in relation to the acceptance of, or the taking of title to, any property from any third party whether by way of purchase, gift, transfer, conveyance, assignment, appointment, grant, release, mortgage, lease, charge, encumbrance, easement or otherwise, where the property, when acquired, will be required to be applied exclusively as referred to in subsection (1) (a) or (b). (3) Upon delivery at any time to the Trust of a certificate given by a committee or agency of the Baptist Union identifying any property and stating that a congregation (for whose benefit the property was, immediately before delivery of the certificate, vested in the Trust upon trust for the committee or agency) has become a Baptist Church, the Trust shall thereupon hold that property upon trust for the benefit of that Baptist Church and that property shall thereafter be managed and dealt with by the Trust in accordance with this Act. (4) No attornment to the Trust by any lessee of property vested in it pursuant to this section shall be necessary. (5) A request referred to in subsection (1) or (2) or a certificate referred to in subsection (3) has effect for the purposes of this section only if: (a) the making of the request or the giving of the certificate, as the case may be, is authorised by a resolution of the committee or agency by which it is made or given, (b) the request or certificate, as the case may be, is in writing and countersigned by the President or Vice-President for the time being of the Baptist Union, and (c) in the case of a certificate referred to in subsection (3), the giving of which would have the effect of requiring the Trust to act as trustee in relation to property which would be subject to a trust imposed otherwise than by the operation of this Act—the certificate is given with the consent of the Trust granted with the concurrence of the Executive Committee. 18 Change of trustees (1) All property which, on or after the appointed day, is vested in any person (other than the Trust) or persons as trustee or trustees for any congregation (not being property which may be vested in the Trust pursuant to section 17) shall, upon the consent of that trustee or the majority of those trustees and of the Trust, without any further conveyance or transfer, become vested in the Trust and be held by it on behalf of that congregation. (2) If in consequence of any disability (including, in the case of natural persons, death or absence from New South Wales) the consent of a trustee cannot be obtained for the purposes of subsection (1), the President for the time being of the Baptist Union may consent in place of the trustee, and, in any such case, the consent of the President shall, for the purposes of that subsection, be deemed to be the consent of the trustee. (3) The consent of a trustee or of the President shall be deemed not to have been given for the purposes of subsection (1) with respect to any property actually used, occupied or enjoyed by any congregation having a roll or register of church membership, unless the consent is given at the direction of the congregation. (4) A notice signed by 2 members for the time being of the Trust, to the effect that a trustee or the President for the time being of the Baptist Union in place of any trustee has, for the purposes of this section, consented to the property mentioned in the notice becoming vested in the Trust and: (a) that the property was not actually used, occupied or enjoyed by any congregation when that consent was given, or (b) that the property was actually used, occupied or enjoyed by a congregation and that, in pursuance of a direction duly made by that congregation, the trustee, or the President in his or her place, consented to its becoming vested in the Trust, shall be prima facie evidence of the matters alleged in the notice. (5) All property which becomes vested in the Trust under this section shall, from the date of its so vesting, cease to be held upon the trusts to which prior to that vesting it was subject, and shall be held, managed and dealt with by the Trust in accordance with this Act. (6) The vesting effected by this section shall be without prejudice to any reservation, mortgage, charge, encumbrance, lien or lease that, immediately before the vesting, affected the property so vested. 19 Purchase by Trust as trustee etc (1) Subject to subsection (2), the Trust shall, at the direction of any Baptist Church or District Association, act as trustee for that Baptist Church or District Association, as the case may be, in relation to the acceptance of, or the taking of title to, any property from any third party whether by way of purchase, gift, transfer, conveyance, assignment, appointment, grant, release, mortgage, lease, charge, encumbrance, easement or otherwise, and any such property shall be held, managed and dealt with by the Trust in accordance with this Act. (2) A direction which would have the effect of requiring the Trust to act as trustee in relation to property which would be subject to a trust imposed otherwise than by the operation of this Act may be duly given pursuant to this section only with the consent of the Trust granted with the concurrence of the Executive Committee. (3) A notice signed by 2 members for the time being of the Trust, to the effect that a direction of a Baptist Church or District Association described in the notice has been duly given pursuant to this section shall be prima facie evidence of the matter alleged in the notice. 20 Certain funds etc vested in the Trust (1) On the appointed day: (a) the trustees and managers for the time being of the funds or settlements associated with the Baptist Union and referred to in Schedules 1 and 2 shall be deemed to have retired, (b) the Trust shall be deemed to be appointed or elected (as the case may require) in the place of those trustees and managers, (c) any provision of an instrument and any resolution relating to, or to the trustees or managers of, those funds or settlements shall have no effect in so far as they are inconsistent with any provision of this Act or of any by-law in force for the time being and relating to those funds or settlements, including any such provision relating: (i) to the convening or holding of, the quorum for, or the procedure or voting at, meetings of those trustees or managers, or (ii) to the signing of cheques or other instruments or to any other procedural matter concerning the management of those funds or settlements, and (d) any provision of an instrument referred to in paragraph (c) which, in the absence of this paragraph, would have the effect of preventing the Trust from exercising a power of investment conferred on it by this Act shall be deemed not to have that effect. (2) Each loan made by the Trust from any of the funds or settlements referred to in Schedule 2 shall be made only with the consent of the committee of the Baptist Union known as the "Department of Home Ministries" or, if that committee has ceased to exist, of the committee of the Baptist Union which, in the opinion of the Trust when the loan is made, exercises functions similar to those exercised by the committee which was so known. (3) Where, on or after the appointed day: (a) a prescribed body is the trustee or manager of a trust fund or settlement, and (b) the prescribed body: (i) certifies that the trust fund or settlement is associated with the Baptist Union, and (ii) consents in writing to the appointment of the Trust as the trustee or manager of the trust fund or settlement, the Executive Committee may, by special resolution, appoint the Trust as trustee or manager, as the case may require, of that trust fund or settlement. (4) On the passing of a special resolution under subsection (3), the provisions of subsection (1) (a)–(d) apply to and in respect of the trust fund or settlement to which the resolution relates in the same way as those provisions apply to and in respect of the funds and settlements referred to in Schedules 1 and 2. (5) In subsection (3), prescribed body means: (a) the Baptist Union, or (b) the members for the time being of a committee of the Baptist Union. 21 Powers of the Trust, generally (1) Without affecting the generality of section 50 of the Interpretation Act 1987, but subject to this Act, the Trust may acquire, hold, manage, deal with, mortgage, charge or dispose of property of any kind and may borrow or raise or secure the payment of money in such manner as the Trust may think fit and may make, endorse and deal with negotiable instruments of any kind. (2) Where any property is vested in the Trust by or pursuant to this Act, the Trust shall, in relation to that property, have and be subject to all the rights, powers, remedies, liabilities and obligations, and may exercise and discharge, in relation to that property, all or any of the rights, powers and remedies which the person in whom the property was vested, or by whom it was held, immediately before it was vested in the Trust, would have had and been subject to and might have exercised and discharged in relation to that property if the property had not been divested from that person and vested in the Trust. 21A Certain property held in trust (1) The repeal of section 30 (2) by the Baptist Churches of New South Wales Property Trust (Amendment) Act 1992 does not override a declaration by the replacement trustee that the replacement trustee will hold the property upon the same trusts as those under which the Trust held it. (2) Section 22 applies to the exercise by a replacement trustee of the replacement trustee's functions respecting trust property as if the references to the Trust in that section were references to the replacement trustee. (3) In this section, replacement trustee means a body or person appointed, at any time before the commencement of Schedule 1 (7) (b) to the Baptist Churches of New South Wales Property Trust (Amendment) Act 1992, under section 30 (2) (as in force immediately before that commencement) to act as a trustee or as one of the trustees of trust property in place of the Trust. Part 4 General duties and powers of the Trust 22 General functions of Trust (1) Subject to this Act, in the exercise of its functions under this Act, the Trust may request the direction of the Executive Committee and act upon any such direction, if given. (2) Subject to this Act and to the terms of any trust to which trust property is subject, the Trust may: (a) erect buildings or permit buildings to be erected on land which is trust property, (b) permit buildings erected on any such land to be used for any one or more of the objects prescribed by subsection (3), (c) subject to subsection (4), repair, alter, enlarge, demolish or partially or wholly rebuild any building erected on any such land, (d) permit a person to officiate as pastor in any church building erected upon any such land, but only if: (i) the person is of the Baptist denomination and holds as general tenets the doctrines set forth in Schedule A to the Incorporation Act, and (ii) except in the case of a pastor appointed before the appointed day, the person has been chosen by the congregation which for the time being worships in the church building and, in any case, has not been removed from the office of pastor by that congregation, (e) despite paragraph (d), permit an occasional minister or other person to officiate in any such church building, but only if: (i) the pastor or the deacons of the congregation that for the time being worships in the church building concurs or concur, or (ii) where there is no pastor and there are no deacons of that congregation—the officer who is a member of that congregation and who is nominated by that congregation for the purposes of this subparagraph concurs, (f) borrow or raise money by granting a legal or an equitable mortgage over any trust property or part of trust property or by making, endorsing or dealing with any negotiable instrument but, where the money is borrowed or raised at the direction of a congregation, only in such amounts and for such one or more of the purposes prescribed by subsection (5) as may be directed by the congregation, being purposes which are for the benefit of: (i) the congregation giving the direction, (ii) another congregation or other congregations, any District Association or the Baptist Union or any of its committees or agencies, or (iii) a qualifying corporation, (g) sell any trust property or part thereof by public auction or private contract, or partly in each mode, or exchange trust property or part thereof for other property but, where the property is held on behalf of a congregation, only in such manner, upon such terms and subject to such conditions as to title or otherwise as may be directed by the congregation, and demise trust property or any part thereof but, where the property is so held, only for such period, at such rent and upon such terms and conditions as may be directed by the congregation, (h) invest or otherwise deal with or dispose of trust property which is not land but, where the property is held on behalf of a congregation, only in such manner and for such one or more of the purposes prescribed by subsection (5) as may be directed by the congregation, being purposes which are for the benefit of: (i) the congregation giving the direction, (ii) another congregation or other congregations, any District Association or the Baptist Union or any of its committees or agencies, or (iii) a qualifying corporation, and (i) accept gifts and loans or other advances of money made to it: (i) either with or without giving security therefor, and (ii) whether or not the loans or other advances are made subject to the payment of interest. (3) The objects prescribed by this subsection are the following: (a) the public worship of God according to the usages of the Baptist denomination, (b) the instruction of children or adults, or both, (c) the provision of a residence for a pastor of the Baptist denomination or for a person employed in the work of a Baptist Church or other work connected with that denomination, (d) the provision of recreational and community welfare services ancillary to the work of a Baptist Church or other work connected with the Baptist denomination, (e) the promotion of such religious or philanthropic purposes as the Executive Committee from time to time de