The effect of the common law rule was modified in NSW by section 37D of the Conveyancing Act which provided: A requirement for a charitable trust was that it must be for the benefit of the public.

Clause 3 gave the trustees the discretion to select an "Order of Nuns of the Catholic Church or the Christian Brothers".

The executors, Donnelly, Wright and Mullen, sought the guidance of the Supreme Court of NSW whether these provisions of the will were void for uncertainty.

Williams, Webb and Kitto JJ held that Myers J was correct in deciding that clause 3 was valid as being an immediate gift in favour of the body selected.

Decisions of the Privy Council tended to be expressed on narrow grounds, a tendency attributed to the need to reflect the agreement of the majority of judges.

The Privy Council agreed with Dixon CJ and McTiernan J that the validity of the gift was saved by s 37D of the Conveyancing Act.

[14]: p 628 The decision is commonly referenced in modern Australian law when dealing with issues surrounding bequests, gifts and the ability to contract of unincorporated associations.

[15] The effect of excluding closed or contemplative religious orders was affected in Australia by the extension of the definition of a charity in 2003,[16] to include non-profit public child care; self-help bodies with open and non-discriminatory membership; and closed or contemplative religious orders offering prayerful public intervention.