Application by Te Mata Park Trust Board for approval of scheme

[2014] NZHC 2342

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2014-441-60 [2014] NZHC 2342

UNDER	the Charitable Trusts Act 1957
IN THE MATTER	of an application by the Trustees of THE TE MATA PARK TRUST BOARD for approval of a Scheme varying the Declaration of Trust.

Hearing:	On the papers
Counsel:	S J Scannell for the Trustees K Laurenson & M McKillop for the Attorney-General
Judgment:	25 September 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Thursday 25 September 2014 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

S J Scannell, S J Scannell Law, Hastings
K Laurenson, Crown Law, Wellington

M McKillop, Crown Law, Wellington

Application by Te Mata Park Trust Board for approval of scheme [2014] NZHC 2342 [25 September 2014]

[1]      This is an originating application seeking approval of a scheme under Part 3 of the Charitable Trusts Act 1957 (the Act).   The Te Mata Park Trust Board administers a substantial block of land known as Te Mata Peak, behind Havelock North.  Pursuant to the Trust deed the land is used as a public park and recreation ground.

[2]      For reasons more fully explained in the affidavit of Mr Brian Chambers (who is a current trustee and also a direct descendant of one of the original settlors) a variation of the trust deed is sought that makes provision for the disposal of the Trust’s assets in the event of its liquidation or dissolution.  The absence of such a provision means that in such an event the assets of the Trust would be disposed of as the  Court  directs  pursuant  to  s 27  of  the  Act.    Mr  Chambers  advises  that  the uncertainty thus created has limited the Trust’s ability to raise funds.

[3]      Accordingly a variation to the Trust deed is proposed whereby a specific clause providing that, in the event of dissolution or liquidation, any surplus assets will be:

(a)       transferred to  a charitable trust with similar purposes within New

Zealand, or

(b)transferred to the Hastings District Council or its successor authority, or

(c)       applied for other charitable purposes as agreed by the Board.

Section 27 of the Act would continue to apply if the Board is unable to determine which of those options should be pursued.

[4]      In May this year the orders sought were considered by Ms Cheryl Gwyn, Deputy Solicitor-General, on behalf of the Attorney-General.   The report for the Attorney-General concludes that the proposed scheme is a proper one, complies with Part 3 and can be approved by the Court.  I am grateful for the assistance contained in her report.

Evaluation

[5]      I am satisfied that it is appropriate to deal with the originating application on the papers and without an in-Court hearing.

[6]      I am also satisfied that approval of the scheme under the Charitable Trusts Act 1957 is warranted.  Such approval is likely to assist in the administration of the Trust’s property and the carrying out of the existing trusts.  More particularly, it is likely  to  facilitate  fundraising  by  the  Board  because  potential  donors  will  be reassured that, in the event of the Board’s dissolution or liquidation, any surplus assets  will  be  retained  or  used  by  an  appropriate  body  for  similar  charitable purposes.

[7]      Accordingly  I  make  an  order  approving  the  scheme  proposed  in  the originating application, namely the inclusion in the Trust Deed of a new clause 28 in the form set out in that application.

[8]      By consent the Attorney-General’s costs are fixed in the sum of $750.00.

Rebecca Ellis J