The PayPal Giving Fund is a trust. The PayPal Giving Fund collects donations from donors and passes it on to the charity indicated/recommended by the donor. The charity must then distribute the monies in accordance with its own trust deed.
By using the PayPal Giving Fund, donors agree to its terms including that the PayPal Trustee “must pay or apply the Trust Fund solely for the purpose of providing money, property or benefits to or for Eligible Entities…”. The RFS qualifies as an ‘Eligible Entity’.
The PayPal Giving Fund terms of service include:
"4) When you donate to PayPal Giving Fund you will recommend that PayPal Giving Fund make a corresponding grant to an Eligible Charity in the amount of your donation.
5) PayPal Giving Fund will make every effort to grant the funds you donate to your recommended Eligible Charity […]You understand that PayPal Giving Fund, as required by law, retains exclusive legal control over all donations and may redirect funds to a similar Eligible Charity If it is unable to follow your recommendation.
As outlined by Slattery J at , in the case of Ms Barber’s campaign, each donor’s act of “making a donation to the PayPal Giving Fund, through the Facebook page displaying the RFS Fund as the nominated charity for Ms Barber’s appeal, constitutes a “recommendation" of the RFS Fund within the meaning of that term in the Donor Terms of Service, clauses 4 and 5”.
The donors’ ‘recommendation’ posts on Facebook were broadly assessed as fitting into 4 categories, which became the subject of the questions the Court was asked to answer.
Could the funds be used for:
- paying money to other charities;
- setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting;
- providing various forms of physical and emotional/mental health assistance to volunteer firefighters; or
- setting up or contributing to a fund to meet the costs for volunteer rural firefighters to attend and complete courses that improve skills related to the volunteer-based fire and emergency services activities of the brigades
The PayPay Giving Fund transferred all the appeal monies to the RFS Fund, and the monies were held subject to the RFS Trust Deed.