Auimatagi v Mangere Congregational Church of Jesus Trust Board
[2025] NZCA 429
•27 August 2025 at 2.30 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA731/2023
[2025] NZCA 429
BETWEEN AUIMATAGI MOSE AUIMATAGI First Appellant AND ERIKA SAMU LAFOA’I Second Appellant AND ELENI MASON Third Appellant AND MANGERE CONGREGATIONAL CHURCH OF JESUS TRUST BOARD First Respondent AND IENI PALELEI, TAGATA ULI, LUISA TUISAULA, VILA SEUMANU, AILINI NUNN AND ALOALI’I ASOAFO Second Respondents
| Hearing: | 9 October 2024 |
| (further submissions as to jurisdiction received 9 December 2024) | |
| Court: | Hinton, Brewer and Osborne JJ |
| Counsel: | O Woodroffe for Appellants |
| S O McAnally, A Ho and S J Davies for Respondents |
Table of Contents
Para No
| Background | [8] |
| Statement of claim | [19] |
First cause of action — appointment of Reverend Uli and provision
| of manse | [19(a)] |
| Second and third causes of action — trespass notices | [19(d)] |
| Fourth cause of action — removal from list of marriage celebrants | [19(f)] |
| Fifth cause of action — rejection of grant of COVID-19 funding | [19(h)] |
| Principles applicable to strike-out applications | [20] |
| High Court judgment | [22] |
| Breach of fiduciary and other duties | [23] |
| First cause of action — appointment of Reverend Uli and provision of manse | [25] |
| Second and third causes of action — trespass notices | [31] |
| Fourth cause of action — removal from list of marriage celebrants | [35] |
| Fifth cause of action — rejection of grant of COVID-19 funding | [37] |
| Conclusion | [38] |
| Jurisdiction | [39] |
| Fiduciary and other duties | [48] |
| Provisions relevant to powers of the Trust Board | [54] |
| First cause of action — appointment of minister and provision of manse | [57] |
| Submissions on appeal | [57] |
Is it arguable that the Trust Board did not have power to appoint the minister? [67]
| Second and third causes of action — trespass notices | [81] |
| Submissions | [81] |
| Is it arguable that the Trust Board did not revoke the Members’ | |
| implied licence? | [83] |
| Fourth cause of action — removal from list of marriage celebrants | [88] |
| Submissions | [88] |
| Is it arguable that the Trust Board exceeded its powers or acted unlawfully? | [90] |
| Fifth cause of action — rejection of grant of COVID-19 funding | [96] |
| Submissions | [96] |
| Is it arguable that the Trust Board was not entitled to reject the grant? | [99] |
| Postscript | [106] |
| Result | [108] |
REASONS OF THE COURT
(Given by Hinton J)
There is a sad divide within the Mangere Congregational Church of Jesus (the
Mangere Church).[1] The Mangere Church is pleaded as being “under the umbrella” of
[1] We note some documents refer to Congregation Church rather than Congregational. We have used
the Congregational Church of Jesus in Samoa (the Samoa Church).[2] The majority of
[2] There is no further description and no documentation in respect of the Samoa Church or of the
the congregation of the Mangere Church are Samoan migrants.
On one side of the divide are the appellants. The first appellant is alleged to
represent approximately 27 people who form the majority of the Mangere Church
congregation.[3] The second appellant (Reverend Samu) and his wife have been
[3] Affidavit evidence filed by the respondents suggests that the remaining congregation, that is those
members of the congregation of the Mangere Church since 1999. Reverend Samu was
ordained in 2016.[4] The third appellant (Ms Mason) says she has been a member of
[4] Reverend Samu had been a trainee minister in another Auckland branch of the Church from 1980.
the Mangere Church since 2011. We take it that the second and third appellants are
part of the first appellant’s group and refer to them cumulatively as the Members.
On the other side are the respondents, the Mangere Church Trust Board, a
charitable trust registered under the Charitable Trusts Act 1957 (the Act), and trustees
of that Trust Board, referred to cumulatively as the Trust Board.
The division began prior to the death of Reverend Tuisaula, the original,
long-standing minister of the Mangere Church
The Members allege abuse of power and breaches of fiduciary and other duties.
Their claims relate to the appointment of Reverend Uli (one of the second
respondents) as replacement minister for Reverend Tuisaula, the issue of trespass notices to the Members, revocation of the marriage licence of Reverend Samu, and
refusal to accept COVID-19 related funding arranged by Ms Mason.
The Trust Board applied to strike out the proceeding. Becroft J found that none
of the pleaded causes of action was tenable but granted leave to “amend” in some
instances. The Members appeal that decision.[5]
[5] Auimatagi v Mangere Congregational Church of Jesus Trust Board [2023] NZHC 3120, [2023] 3
Subsequent to the hearing, we raised an issue as to the extent of this Court’s
jurisdiction, there being a question as to whether all causes of action had ultimately
been struck out. If any was not, leave to appeal would be required from the High Court
under s 56(3) of the Senior Courts Act 2016. As directed, counsel filed memoranda in
November and December 2024. The Members also then sought leave to appeal from
this Court, if required, which the Trust Board did not oppose. We address the issue of
jurisdiction and leave subsequently.
Background
The Judge recorded the facts, largely as pleaded in the statement of claim.[6] No
[6] We note that many of the facts are disputed but proceed on the basis of the pleaded facts, adding
issue has been taken with his summary and we rely materially on it below.
The Mangere Church was established in 1983 as the Otara Congregational
Church of Jesus. The Constitution and Rules (the Constitution) were adopted, and
application for incorporation as a charitable trust was signed on 1 June 1983.
The trustees declared the necessary charitable trust on 31 July 1983 and the
Trust Board was incorporated under the Act on 28 September 1983.
That same year the Trust Board acquired land at 2 Waddon Place, Mangere,
(Waddon Place) and the Church moved from Otara to Mangere. The Mangere Church,
hall and manse are located at Waddon Place. The name of the Church changed to
Mangere Congregational Church of Jesus on 8 April 1988. The land and buildings at Waddon Place were funded through financial contributions and hard work of the
Mangere Church congregation.
[11] In March 2019, the original minister of the Mangere Church,
Reverend Tuisaula, died. Subsequent to his passing a chain of unfortunate events
followed.[7]
[7] Judgment under appeal, above n 5, at [2].
Some time in 2019 there was an ultimately unsuccessful attempt to update the
Constitution.
In May 2019 Reverend Samu successfully applied to the Registrar-General of
Births, Deaths, and Marriages to be an organisational marriage celebrant for the
“Congregational Church of Jesus in New Zealand”, which Ms Mason describes as the
national Church body. Reverend Samu did not seek the endorsement of the
Trust Board. In June 2019, the Trust Board wrote to the Department of Internal Affairs
(DIA) saying that they did not endorse Reverend Samu’s application. The DIA invited
the Trust Board to request that Reverend Samu be removed from the list of celebrants.
The Trust Board did so on 26 June 2019, and on 11 July the Registrar-General removed
Reverend Samu from the list.
In August 2020 Ms Mason made a successful application for COVID-19
related funding from the Ministry for Pacific Peoples, in the name of the
Mangere Church. Her aim was to set up an “ICT hub” to upskill elderly and young
members of the Church on information and communication technology. The
application also included funding for heat pumps. The deadline for applications was
about to expire so Ms Mason made the application in a hurry. She obtained support
from others, including Reverend Samu and her business partner and husband,
Mr Mason. The Trust Board were not formally advised of the application or that it
had been made in the name of the Mangere Church, until its meeting of
10 October 2020. At that point the Trust Board decided they did not wish to accept
the funding. On 12 October 2020, they advised the Ministry for Pacific Peoples
accordingly, saying their name had been “misused” in the original application.
The new minister, Reverend Uli, was appointed by the Trust Board on
24 March 2022. Shortly afterwards he was given use of the Mangere Church manse.
We note that Reverend Uli’s appointment was three years after the previous minister
died. It seems that in the interim Reverend Uli and Reverend Samu informally shared
the role.
On 16 April 2022,[8] the Members gave the Trust Board formal notice of their
rejection of Reverend Uli’s appointment and of their intention to hold their own
Sunday services in the Mangere Church premises, to be led by Reverend Samu.
[8] By letter dated 15 April 2022.
In response that same day, the Trust Board informed the Members that the
assets of the Mangere Church fell within the Trust Board’s authority. They warned
them not to use the Mangere Church for their own services.
On Sunday 17 April 2022 the Members nonetheless tried to access the
Mangere Church to use it for their own service. After they did so, the Trust Board had
the locks changed and trespass notices dated 21 April 2022 were served upon
29 members of the congregation,[9] including three children aged four, twelve and
sixteen.
Statement of claim
[9] We assume this included all or some of the Members.
In August 2022, the Members commenced this proceeding. We summarise the
causes of action below, adopting as closely as possible language used in the statement
of claim, noting that in most cases what is described as a cause of action actually
incorporates two or more separate causes relating to the same matter. In each case,
the claims are that the Trust Board’s actions were ultra vires and/or in breach of
fiduciary or other trustee duties.
First cause of action — appointment of Reverend Uli and provision of manse
(a) The Trust Board had no express or implied power under the Constitution, or under the Trusts Act 2019, to appoint Reverend Uli and give him use of the manse. His appointment is therefore ultra vires and
illegal.
(b) The appointment was also outside the powers of the Trust Board in accordance with the constitution and rules of the Samoa Church, “the
umbrella body of the [Mangere] Church”.
(c) In appointing Reverend Uli and providing the manse, the Trust Board also breached fiduciary duties owed to the Members by not consulting
or involving them as members of the congregation in the appointment
process and breached “primary duties” to act in good faith and in the
best interests of the trust.[10]
[10] The Members seek a declaration that the Trust Board had no power to appoint a minister and the
Second and third causes of action — trespass notices
(d) The members had an implied licence to be at Waddon Place and the Trust Board did not have the power to revoke the right of the Members
to enter and use any of the assets held by the Trust Board. The Trust
Board also did not revoke the licence because they did not give any
valid reason for doing so.
(e) In issuing the trespass notices the Trust Board failed to act honestly, in good faith, impartially and in accordance with the purpose of the trust.
They breached fiduciary duties owed to the Members to allow them use
of Waddon Place for worship and acted in breach of the Trusts Act[11]
[11] No particular provision is referenced.
and the Constitution by not acting for the benefit of the beneficiaries
and not advancing the purpose of the trust.[12]
[12] The Members seek declarations that the trespass notices were unlawful and that congregation
Fourth cause of action — removal from list of marriage celebrants
(f) The Trust Board had no power “to seek revocation of the marriage celebrant licence of Reverend Samu”.[13]
[13] We note that celebrants in New Zealand are not “licensed”; instead, their name is included on the
(g) The Trust Board also acted in breach of fiduciary duties to act in good faith.[14]
[14] The relief sought is a declaration that the Trust Board acted illegally and breached fiduciary duties
Fifth cause of action — rejection of grant of COVID-19 funding
(h) The Trust Board had no legal power to “deny” an application by Ms Mason and decline “the $50,000 funding”.
(i) They also acted with malice, in breach of their primary duties to act
impartially and in the best interests of the trust, and in breach of
fiduciary duties owed to the beneficiaries to act in good faith.[15]
Principles applicable to strike-out applications
[15] The relief claimed is declarations that the “cancellation” of the successful application by
The application to strike out was brought under r 15.1(1)(a) of the High Court
Rules 2016 which provides that a proceeding can be struck out in whole or in part, if
it discloses no reasonably arguable cause of action.
The fundamental principles of strike-out applications include that the pleaded
facts are assumed to be true, the causes of action must be so untenable that the court
is certain they cannot possibly succeed and the jurisdiction is to be used sparingly.[16]
[16] Judgment under appeal, above n 5, at [32], citing Attorney-General v Prince [1998] 1 NZLR 262
After setting out the relevant principles, the Judge considered the fiduciary
duty pleadings as a whole and then went on to consider the argument that each of the
actions complained of was ultra vires or otherwise illegal.
Breach of fiduciary and other duties
The Judge accepted the Trust Board’s argument that all causes of action
alleging a breach of fiduciary duty were misconceived and could never succeed for
the reason that charitable trusts, such as the Trust Board, do not have specific
beneficiaries to whom duties are owed.[17]
[17] Judgment under appeal, above n 5, at [33], [42] and [47]. We note the Judge referred to the pleaded
He observed that, in general, the appropriate recourse for someone concerned
with the operation of a charitable trust is an application under s 58 of the Act for the
Attorney-General to inquire into the trust’s operation.[18] Alternatively, as the
Trust Board had conceded, proceedings could be brought by the Attorney-General or
the Members using the mechanism of s 60 of the Act to enforce the charitable trust,
including requiring any trustee to meet their liability for a breach of trust “affecting
the property or income or money as the Court may direct”.[19]
First cause of action — appointment of Reverend Uli and provision of manse
[18] At [43].
[19] At [44].
The Judge found that the Constitution permitted the Trust Board to appoint a
minister and having done so to allow the minister the use of the manse on the
Trust Board’s land.[20]
[20] At [54]
He noted a submission by the Members that the Constitution did not reflect the
general principle for appointing ministers in Samoan congregational churches
(referring in particular to the congregation being properly consulted) but said the
matter had to be determined in accordance with the pleaded documents and rules.[21]
[21] At [52].
The Judge found that cls 3 and 10 of the Constitution gave the Trust Board
power to appoint a minister and allow the minister to use the manse. Clause 10 gave
the Trust Board full power to manage their own finances and affairs in pursuit of the
Trust Board’s objects. The objects included advancement of “religious … or other
work” including without limitation the establishment of a church and ancillary
buildings. He said that must therefore include the power to decide who lives in the
manse and (at least by inference) to appoint a minister. Further, the objects extended
to “all other purposes … incidental to the work of the congregation”. The appointment
of a minister fell within this category.[22]
[22] At [54].
The wisdom of the appointment process aside, the Judge considered there was
nothing in the Constitution which required the Trust Board to consult the congregation
in exercising those powers.[23]
[23] At [58].
The Judge also said that even if he was wrong, it was almost certain the Court
would not intervene given issues about the standing of the Members and the lack of
any alternative rules. The Court would be placed in an impossible situation. He noted
the courts have traditionally shown a reluctance to intervene where purely spiritual or
religious issues are at stake,[24] as opposed to economic or proprietary rights.
[24] At [60]–[61], citing Hanipale-Brady v Presbyterian Church of Aotearoa New Zealand [2013]
After again discussing alternative ways of pleading the Judge said:
[60] I do not see how the first cause of action could ever succeed, even if re-pleaded under s 60. This is because the pleaded facts, as already outlined, do not establish a breach of the trust on which property and/or income are held by the trust. If the plaintiffs wish to amend the first cause of action, to plead reliance on the rules of the umbrella Congregation Church of Jesus in Samoa, if applicable, then they should have one month from the date of this judgment to do so.
[61] Another option is to seek the formal involvement of the Attorney General, surely akin to using a sledgehammer to crack a nut.
Second and third causes of action — trespass notices
The Members accepted that the Trust Board owned Waddon Place and both
parties proceeded on the basis that there was an implied licence for the Members to
enter it and use it. The Judge said the trespass notice pleadings therefore came down
to whether the Trust Board had the power to revoke any implied licence, and whether
they had done so, both of which he found there was no serious argument against.[25]
Issuing of the trespass notices, whether valid or not, constituted clear revocation of the
implied licence, the Judge observing the Members’ apparent ultimate acceptance of
that position.
[25] At [70].
The Judge said he understood the Members’ real argument relied on the various
pleaded breaches of duty owed to them. However, he found that the Trust Board did
not owe such duties and those causes of action could not succeed.[26]
[26] At [71]–[72].
The Judge added that there was considerable force in the Trust Board’s
argument that, given the context, their response could hardly be considered
unreasonable. Similarly, there was basis for the submission that any obligation for the
Trust Board to act in the Members’ best interests did not require the Trust Board to
permit the Members to impose their own views and run their own services over those
of the Trust Board or other members of the congregation.[27]
[27] At [73]–[74].
However, the Judge noted “[t]here is a slim argument”, if the revocation was
found to be motivated by malice, in breach of ss 25 and 27 of the Trusts Act, of s 60
of the Act providing some remedy.[28] Alternatively, he suggested the Members could
request an investigation or inquiry by the Attorney-General. He then said they could
amend the second and third causes of action within one month.[29]
[28] At [75]–[76].
[29] At [77].
Given it was the Registrar-General who removed Reverend Samu from the list
of celebrants, not the Trust Board, the Judge’s view was that any action had to be taken
against the Registrar-General.[30] The Trust Board were free to advise the DIA it did
not support the application.[31]
[30] Although the Judge and the parties referred to the DIA, we note that the list of marriage celebrants
[31] At [81].
After observing there may be some form of tortious action if the Trust Board
acted with malice, or in a defamatory manner, the Judge said:[32]
If the second plaintiff believes there is a different and arguable cause of action
arising from the Board’s dealings with the DIA, then what is currently pleaded
should be replaced with a whole new cause of action. Again, the plaintiffs
have one month from the date of this judgment to do so.
Fifth cause of action — rejection of grant of COVID-19 funding
[32] At [84].
The Judge found this cause of action could never succeed. It was open to the
Trust Board not to take money it did not apply for, and Ms Mason had no right to apply
for, in the Trust Board’s name. He said the decision-making “buck” starts and stops
with the Trust Board under cl 10 of the Constitution.[33]
Conclusion
[33] At [88].
The Judge concluded as follows:
[90] The first, fourth and fifth causes of action must be struck out as they currently stand as there is no tenable argument that they could ever possibly succeed even taken at their highest.
[91] The fifth cause of action is struck out completely. [92] As set out in paras [64] and [84] of this judgment there is leave for the plaintiffs to file amended first cause and fourth causes of action. This is on the basis that some other different and arguable cause of action just might exist, though none has been identified or even alluded to in the pleadings. [93] The second and third causes of action cannot succeed as currently pleaded. However, they could be amended, if the plaintiffs chose, to reflect that the revocation of any implied licence held by the plaintiffs to use the
church property was made in bad faith, motivated by dislike and malice towards the plaintiffs and that there were no reasonable grounds for its revocation. As such it could be pleaded that the Trust Board was in breach of its obligations under the trusts by which it held the church property. As with the first and fourth causes of action, the plaintiffs have leave in accordance with para [77] of this judgment to file an amended third cause of action.
[94] I rule accordingly.
Jurisdiction
The Members did not file an amended statement of claim. Before us,
Mrs Woodroffe expressly rejected any suggestions made by the Judge in this regard or
any intention to file an amended statement of claim.
Both parties proceeded in this appeal as if all causes of action had been struck
out and the Members were appealing all findings.
As noted earlier, following the hearing we raised the issue (by minute dated
15 November 2024) of whether this Court had jurisdiction to hear the appeal in full,
there being a question over the extent to which the causes of action had in fact been
struck out. This was a concern in particular with the second and third causes of action.
To the extent the High Court had not struck out any part of the proceeding, leave to
appeal would be required under s 56(3) of the Senior Courts Act. Furthermore, leave
to appeal would have to be sought first from the High Court, not this Court, and no
application had been made.
Following our minute, by memorandum of 29 November 2024, Mrs Woodroffe
submitted that all causes of action had in fact been struck out, but applied for leave to
appeal to the extent any cause of action was not struck out, and for a corresponding
extension of time.
By memorandum dated 6 December 2024, Mr McAnally agreed with the
Members, and we also agree, that the High Court judgment did strike out the first,
fourth and fifth “causes of action”, as described in the statement of claim. While on
the face of it the Judge allowed repleading in respect of the first and fourth causes of
action, the findings could not sensibly be interpreted as other than striking out the pleaded causes of action in each instance. Any repleading on the part of the Members
would require a different cause of action.
In respect of the second and third causes of action, Mr McAnally submitted
that despite indications to the contrary in the judgment, these were not struck out,
including the pleaded breaches of duty. If that were correct, the Members would still
wish to challenge the findings(s) the Judge did make but, as we see it, the Trust Board
would also need to cross-appeal against a non-strike out. No cross-appeal was filed.
To do either would require leave from the High Court or this Court, leave normally
having to be sought first from the High Court. The Trust Board did not oppose leave
to appeal.
However, we have formed the view that, although the Judge did not
categorically say the second and third causes of actions were struck out, that is again
the effect of his judgment. In the final section of the judgment, set out at [38] above,
the Judge stated that the second and third causes of action cannot succeed as currently
pleaded, granted leave to the Members to amend their claims within a month, and ruled
accordingly.[34] The Members did not amend the statement of claim.[35] Further,
although not clear at [93] of the judgment, it is clear at [29] that the repleading to
which the Judge refers is under s 60 of the Act, and no such pleading has been filed.
The effect of the Judge’s ruling is, as Mrs Woodroffe submits, that the proceedings
were brought to an end and the Members can appeal as of right.
[34] At [94].
[35] Although the Members’ notice of appeal was filed one working day before the expiry of the period
If that is wrong then in any event we agree with the Trust Board that not
allowing the appeal to proceed in respect of the second and third causes of action (that
is not addressing those issues) would be counterproductive. The likely alternative
would be a substantive High Court hearing in respect of those causes of action
followed by an appeal. If required, we would therefore have granted leave for both an
appeal and cross-appeal and any necessary extension of time.
The Members’ memorandum said nothing contrary to the conclusion we have
reached and, as noted, the decision being in effect a strike-out in full, is the basis on
which they filed their appeal and both parties made submissions.
Fiduciary and other duties
Although the appeal as filed was against all findings by the High Court, as
Mr McAnally submitted, the Members’ written and oral submissions made no, or
virtually no, reference to an appeal against the general finding that no fiduciary or
other duties were owed to the Members. It was not contended that the authorities cited
by the Judge were wrongly relied on. Mrs Woodroffe made a broad submission that
the Trust Board must owe such a duty — or to that effect. Otherwise, the Members’
submissions relied largely on their argument that the four acts complained of were
ultra vires, or they attempted to side-step the effect of the Judge’s preliminary finding.
In those circumstances, we do not need to comment at length on the issue of
trustee duties, other than to say that we agree with the High Court. In particular we
agree with Mr McAnally’s submission in the High Court that charitable trusts such as
the Trust Board do not have specific beneficiaries to whom they owe a fiduciary duty
or other duties. Charitable trusts exist to further the objects of the trust concerned.
The “duty” owed by such a trust and its trustees, is to the trust’s charitable objects. As
explained in The Law of Charities and Mortmain:[36]
[36] Leonard Syer Bristowe, Cecil Arthur Hunt and Halford Gay Burdett The Law of Charities and
A private trust is one for the benefit of particular individuals who are or will
become ascertained. A charitable trust is one for the accomplishment of a
purpose charitable within the meaning of the Statute of Elizabeth, which must,
as already shown, be a purpose designed to benefit the public, or a section of
the public present or future. In the case of a private trust the cestuis que
trustent are specific individuals, at the suit of any of whom the trust may be
enforced; in the case of a charitable trust there are no cestuis que trustent,
unless the abstract charitable purpose can be properly so called, and it is only
enforceable at the suit of the Attorney-General, representing the Crown in its
capacity of protector of charities.
The Judge also referred to the decision of the Privy Council in Latimer v
Commissioner of Inland Revenue, on appeal from this Court, where the Board said:[37]
[37] Latimer v Commissioner of Inland Revenue [2004] UKPC 13, [2004] 3 NZLR 157. The Judge
[29] Their Lordships would begin by stating some general principles. It is
of the essence of a charitable trust that it is a trust for the promotion or
advancement of social purposes rather than a trust for individual beneficiaries.
Of course, individuals may benefit from the application of trust moneys, but
they are not, as individuals, the beneficiaries of the trust and may not enforce
its terms. If the purposes of the trust are charitable, they may be enforced by
the Attorney-General; if they are not charitable then, with certain anomalous
exceptions, they are not enforceable and the trust is not valid. …
The Members and others directly or indirectly benefitting from charitable trusts
are not without remedy, but the remedies are as set out by the Judge, that is, in
appropriate cases, under the mechanism provided by s 60 of the Act or by referral to
the Attorney-General as protector of charities under s 58 of the Act to inquire into a
charity’s administration and management.[38] Outside those remedies, the Members do
not have the standing necessary to bring a proceeding to directly enforce the Trust.[39]
[38] Section 60 relevantly provides for application to the court by the Attorney-General, or a person,
[39] Titchener v Attorney-General (1990) 3 PRNZ 52 (HC) at 56–58; and Napier City Council v
As is clear from the passages quoted above, and sufficiently clear from the
judgment, the finding that there is no fiduciary duty owed extends to the “primary
duties” also pleaded (to the extent they are different).
In our view it is strongly arguable that the legal principles cited above also
extend to the remaining causes of action, all based on the extent of the Trust Board’s
powers. However, that argument was not raised before us. Rather than seek yet further
submissions, we proceed on the basis as argued.
Provisions relevant to powers of the Trust Board
Clause 2 of the Trust Deed records:
2. THAT the assets for the time being which comprise the trust fund can be used at the absolute discretion of the trustees upon the following
charitable trusts:-
(i) For the advancement and promotion of all or any religious
charitable benevolent or other work throughout the Dominion
of New Zealand and without limiting the foregoing the
acquisition, establishment, construction and maintenance of a
site or sites for a Church or Churches, ancillary Church
buildings and manses for the congregation of the Otara
Congregational Church of Jesus and for all other purposes of
a religious or charitable nature incidental to the work of the
congregation or the work of persons carrying on religious or
other charitable work and adhering to the confession of faith
of the Otara Congregational Church of Jesus.
(ii) To purchase and acquire real and personal property of all or
any sort and to construct houses, Churches, buildings, halls
and youth camps of any and every sort to assist in the
advancement and promotion of the objects to be carried out in
terms of sub-clause (i) above.
Clause 3 of the Constitution similarly records:
3. THE objects of the Board are:- (i) The advancement and promotion of all or any religious
charitable benevolent or other work throughout the Dominion
of New Zealand and without limiting the foregoing the
acquisition, establishment, construction and maintenance of a
site or sites for a Church or Churches, ancillary Church
buildings and manses for the congregation of the Otara
Congregational Church of Jesus (hereinafter called “the
congregation”) and all other purposes of a religious or
charitable nature incidental to the work of the congregation, or
the work of persons carrying on religious or other charitable
work and adhering to the confession of faith hereinafter set
forth.
(ii) To purchase and acquire real and personal property of all or any
sort and to construct houses, Churches, buildings, halls and
youth camps of any and every sort to assist in the advancement
and promotion of the objects to be carried out in terms of
sub-clause (i) hereof.
(iii) To act as trustees of moneys and property of any and every kind
granted donated or settled upon the Board in furtherance of all
or any of its objects and to accept transfers from any existing
trustees or body of the real or personal property subject to any trusts under which the same may now be held and to act as
trustees and administer superannuation funds and insurance
schemes to provide retirement or superannuation allowances
arising out of any object of the Board.
Clause 10 of the Constitution provides:
10. FOR the purpose of carrying out the objects hereinbefore set forth the Board shall have full power to administer its finances and affairs and
to purchase lease exchange rent acquire mortgage charge or sell or
otherwise deal with the assets under its control.
First cause of action — appointment of minister and provision of manse
Submissions on appeal
Having already agreed with the Judge that the Trust Board do not owe duties
to members of the congregation, the only remaining potential cause of action regarding
the challenge to the minister’s appointment, is the argument that the Trust Board had
no power under the Constitution[40] to make the appointment.
[40] No-one suggests that the Trust Board had the power of appointment under the Trusts Act, which
Mrs Woodroffe submits that the Trust Board are simply a property-owning and
administering vehicle. She says that the appointment of a minister is the role of the
congregation, drawing on what she submits is the standard practice of the Samoan
Church. It was submitted that this could be by vote of the congregation but the
argument was not ultimately so specific. Mrs Woodroffe said, rather, that how the
congregation went about that appointment would be up to them as a whole and would
take into account Samoan cultural values.
Greater focus was placed on the argument that, at the least, the congregation
needed to be given notice, consulted, and given an opportunity to provide their voice,
being the language used by Mrs Woodroffe. We summarise this as a duty to consult.
The main thrust of the Members’ argument is set out in the following extract
from their synopsis, similar to that advanced in the High Court:[41]
[41] Emphasis in original.
… the Trust Board for a church is usually set up to hold the assets of the church
congregation. A church Trust Board is not set up for the purpose of having
unfettered control and power to deny members of the congregation their
human right to have “a voice” and express an opinion in a matter of
importance to now and future generations of a church congregation. The
appointment of a church minister is critical for the advancement of the church
and giving all Congregational members a voice in selecting a Church Minister
embraces Christian values, embraces Samoan cultural values of respect, and
falls within the rules of natural justice. The property owning Trust Board is
not set up for purposes that are properly the responsibility of the church
congregation, such as the appointment of a church minister, the procedure for
which may be found, for example, in a constitution governing the
congregation if there is one, or in the constitution and rules of the governing
body of the whole church organisation of which the local church is one part.
It is also important to recognise that the Appellants are members of a pacific
island church and as such those members and the church itself have cultural
values to add to the governance of the church.
As set out above, the pleading also referred to the appointment being outside
the powers of the Trust Board under the constitution of the “Congregational Church
of Samoa, the umbrella body”. However Mrs Woodroffe acknowledged there was no
such constitution.
The argument as to the practice of the Samoa Church ultimately relied on a
judgment of the Court of Appeal of Samoa, Reupena v Senara, to which we return.[42]
[42] Reupena v Senara [2017] WSCA 1.
As to the Mangere Church’s Constitution, the Members submit that the powers
of the Trust Board must be found in the Trust Deed and the Constitution must operate
within the powers found in that Deed. They point out that objects are not powers —
they may only limit the extent of a power.
The Members say that the powers of this Trust Board can be found principally
in cl 2 of the Trust Deed and secondly in cl 10 of the Constitution. They submit that
the Trust Board’s argument that they have the power to appoint, relying on the objects
set out in cl 2 which are very broad brush, would give the Trust Board power to be involved in the advancement and promotion of all or any religious, charitable,
benevolent or other work throughout New Zealand. They say that simply cannot be
so, this presumably meaning that the objects need to be read down. Rather,
Mrs Woodroffe contends that, relying on the opening words of cl 2 of the Trust Deed,
any of the Trust’s powers have to relate to use of the assets.
As to cl 10, the Members say that the reference to “and affairs” is followed
only by a list of things that the Trust Board can do related to property. They say it
would not be open to the Court to interpret, in those circumstances, the word “affairs”
in the broad way for which the Trust Board argue.
On appeal Mrs Woodroffe did not argue that the Trust Board had no power to
provide a minister with the use of the manse. She acknowledged that once a minister
is appointed the Trust Board can decide if the minister can use the manse. The
Members’ argument rather is that the minister has not been validly appointed and
therefore does not have lawful use of the manse.
Is it arguable that the Trust Board did not have power to appoint the minister?
We consider that the Trust Board’s powers encompass matters such as
appointment of a minister and the claim that the appointment was ultra vires is not
reasonably arguable.
We focus, as the Judge did, on the Constitution. While cl 2 of the Trust Deed
is in any event almost identical to cl 3 of the Constitution, the Constitution clearly
delineates the objects and powers of the Trust Board. It was not suggested that the
Constitution was invalid.
Clause 3(i) of the Constitution relevantly provides that the objects of the
Trust Board include the advancement of all religious work and without limiting that
general purpose, acquisition of a church site “and all other purposes of a religious or
charitable nature incidental to the work of the congregation or the work of persons
carrying on religious or other charitable work”.[43]
[43] Emphasis added.
We disagree with Mrs Woodroffe’s argument that cl 2 of the Trust Deed (and
therefore cl 3 of the Constitution) must be read down. Such clauses are deliberately
broad, as is common with charitable trusts. We note also that the object of acquiring
a church site is limited to a site for the (now) Mangere Church congregation which
necessarily narrows the objects in any event. The objects highlighted above would
include the object of appointment of a minister and related funding arrangements.
Most importantly, cl 10 of the Constitution, which describes the Trust Board’s
powers and might otherwise be capable of the narrower reading advanced by
Mrs Woodroffe (that is, limited to matters relating to property only) should be read
more broadly in light of cl 3(i) of the Constitution. The reference in cl 10 to the
Trust Board having full power to administer finances and affairs for the purpose of
carrying out the objects hereinbefore set forth, must be read side by side with cl 3(i)
of the Constitution. The objects in cl 3(i) are not limited to property or property
administration. As set out above, they include all religious purposes incidental to the
work of the congregation or to the work of persons carrying out religious work.
Further, there can be no doubt that the Trust Board, and the Trust Board only,
had power to allocate use of the manse and to make payments to a minister by way of
stipend or otherwise. It is not surprising that the argument regarding power to allocate
use of the manse was in effect not pursued. We agree with the Judge that it would be
illogical for the power to make the manse available to a minister (and to otherwise
provide financially for the minister), both of which clearly sit with the Trust Board, to
be in hands different to the appointment of the minister himself.
For those reasons we agree with the Judge that the Trust Board had power to
appoint a minister and power to provide use of the manse.
We are fortified in our conclusion by the lack of force in the Members’
alternative argument that the congregation had power to appoint a minister, or more
particularly, had to be consulted prior to the appointment.
[75] The argument that the congregation had power to appoint was not expressly pleaded, other than tangentially under [19](b)] above, which fell away as there is no constitution of the Samoa Church. We should add that we do not consider any positive
pleading was required for purposes of the strike-out application. The burden is on the
Trust Board. But it means that we had only the Members’ submissions in support.
The height of Mrs Woodroffe’s argument in this regard was her reliance on the decision
of the Samoan Court of Appeal referred to at [62]. That decision refers to a practice
that is adopted by the Samoa Church where a minister is appointed by a vote of the
congregation of the local village.
While interesting, Reupena v Senara is clearly not applicable. First,
Mrs Woodroffe’s argument is not that the same practice applies here. She says the
process would be up to the congregation. More importantly, as Mrs Woodroffe advised
us, the Samoa Church is unincorporated; it seems it has no constitution or rules and
the congregation is drawn from the local village. None of this is the case here.
Although the parties in this case are also Samoan, they are New Zealand residents and
it would appear in at least a number of instances, have been so for a long time. There
is no “village” delineation or other delineation of the Members. Mrs Woodroffe
acknowledged that there are no rules around who can be a member of the Mangere
Church. It seems to include anyone who worships in the Church. The appointment of
a minister in the way in which Mrs Woodroffe proposes, would not only in our view
be at odds with the Constitution of the Mangere Church, it would also be difficult to
apply or regulate in the Auckland City context.
As we have said, the real tenor of the Members’ argument in this regard was
that the Trust Board had a duty to consult with them over the appointment. We wholly
agree it would have been wise for the Trust Board to consult with the Members, as a
subset of the congregation, assuming for present purposes that they did not. And it
would have been wise for such other customs of the Church in Samoa or in
New Zealand as might have been applicable, to have been followed. However, we
have already found, as did the High Court, that the Trust Board do not owe duties to
the Members. This includes a duty to consult and so that alleged obligation is not
enforceable by the Members, at least not in the way they have brought their claim.
[78] It is notable that these arguments are advanced on behalf of the congregation but the congregation is not a party. As we understand it, the Members speak for 27 adults within the congregation. Their arguments obviously do not turn on numbers,
or longevity of membership. But by the same token the same arguments could in
theory be advanced by a new single member of the congregation. This illustrates the
importance of the rationale behind the limited powers to enforce charitable trusts, as
discussed above.
Even if our conclusion is incorrect, we agree with the Judge for the reasons he
gives that this is not a matter where a Court could appropriately interfere, there being
religious issues at stake, rather than economic or proprietary rights. Further, if the
Court were to interfere it would seem that the end result would likely be a void.
We therefore consider the Judge was correct to strike out the pleadings under
the first cause of action.
Second and third causes of action — trespass notices
Submissions
The Members do not deny that the “property-owning” Trust Board are the
owner of Waddon Place. They contend, and the Trust Board accept at least for the
purposes of this application, that the Members had an implied licence to go onto
Waddon Place. The Members accept that the implied licence can be revoked, but
although appearing to accept before the High Court that it had been revoked,
Mrs Woodroffe argued differently before us. She said the licence had to have been
revoked before a trespass notice was issued. Further, the Trust Board must have good
reason for issuing trespass notices, not simply, as contended, a dislike of those to
whom they are issued.
The Trust Board repeat the argument accepted by the High Court — that the
issuing of the trespass notices themselves had the effect of revoking any implied
licence the recipients might have had, relying for example on Hamilton Cosmopolitan
Club Inc v Lewis.[44] The Trust Board reiterate the Judge’s comment that: “it would be
[44] Hamilton Cosmopolitan Club Inc v Lewis [2022] NZHC 2555.
hard to see the notices in any other way”.[45] Furthermore they point out that the Members were in fact informed prior to the attempted use of the premises for their
[45] Judgment under appeal, above n 5, at [70].
own services, that doing so was unlawful.
Is it arguable that the Trust Board did not revoke the Members’ implied licence?
Given the position taken by the Trust Board, we also proceed on the basis that
the Members had an implied licence to enter and use Waddon Place. Whether they
had an implied licence to use Waddon Place to conduct their own Church services with
their own chosen minister may be another matter. However, it would logically follow,
as Mrs Woodroffe conceded, that the licence can be revoked.
It is arguable, as the Judge noted, that it may not be unreasonable for the
Trust Board to have excluded the Members given the circumstances. It is also
arguable, at least on the pleadings, that the Trust Board’s response was
disproportionate.[46] Further, on the facts before us, it would seem that, for example,
[46] We note in particular minors being issued with trespass notices and the two-year period of the
excluding only Reverend Samu may have been sufficient to deal with the immediate
issue.
Those points, however, do not give rise to an actionable claim against the
Trust Board by the Members. The power to both revoke an implied licence to come
onto Waddon Place and to issue trespass notices to members of the congregation, is a
power inherent in the Trust Board’s powers to manage Waddon Place. The
Trust Board are the legal owner of Waddon Place and are entitled to make decisions
about the use of the Mangere Church’s assets. We further agree with the Judge that
the issue of a trespass notice in itself clearly constitutes revocation of an implied
licence. Whether the trespass notices (or some of them) are unenforceable for some
reason is not at issue before us. More specifically, we have not been provided with
any basis for the argument that the Trust Board had to give reasons. If there were such
a requirement, the reason was clear.[47]
[47] We consider this would fall into the category of the various pleaded duties in any event.
[86] As to the pleaded breach of fiduciary duty, duty to give reasons, duty to give reasonable notice, or breach of trust, as discussed above these claims cannot succeed. We accept that the trustees do owe duties including, among other things, to act in good
faith and exercise their powers for a proper purpose, but these are duties owed to the
Trust’s objects or to the Board, not to the Members. The Members would need, as the
Judge and we have said, to approach the matter in a different way.
For these reasons, we consider the Judge was correct to find that the second
and third causes of action could not succeed as pleaded. These causes of action must
also be struck out.
Fourth cause of action — removal from list of marriage celebrants
Submissions
Reverend Samu says his application to be a marriage celebrant was made, and
this is supported by a document produced by Ms Mason, in the name of the
“Congregational Church of Jesus in New Zealand” (the New Zealand Church), not in
the name of the Mangere Church. We note for completeness that those named in
support appear to all be members of the Mangere Church.
Reverend Samu says that the Trust Board acted beyond their powers as set out
in the Trust Deed because, in circumstances where he had not named the Mangere
Church, he did not need to seek the Trust Board’s approval and the Trust Board did
not have the power to approve or reject his application. He says the Trust Board have
unlawfully intervened in the process by a false statement to the DIA that the
Trust Board must endorse any application to be a marriage celebrant by him, and by
seeking removal.
Is it arguable that the Trust Board exceeded its powers or acted unlawfully?
The Trust Board advised the DIA they did not support the application. Such
advice would clearly not be actionable, it being true as a matter of fact. But further,
admittedly at the DIA’s prompting, the Trust Board asked the Registrar-General to
remove Reverend Samu from the list of celebrants. Mrs Woodroffe submits that the
Judge overlooked the Trust Board’s request for removal, which she says is the
significant point.
However, even taking that further aspect into account, the Trust Board’s letter
was not the proximate cause of the Registrar-General removing Reverend Samu from
the list of celebrants. Under s 13(1)(c) of the Marriage Act 1955, the Registrar-
General had to be satisfied that the organisation expressing a wish that Reverend Samu
no longer be a celebrant, was the same organisation as nominated him in the first place.
Evidently the Registrar-General formed the view after taking advice from DIA
officials that the Mangere Church was the nominating church, and having done so, he
was bound by s 13(2) of the Marriage Act to remove Reverend Samu.[48]
[48] The Members provided internal correspondence obtained from the DIA under the Official
Assuming for present purposes it is correct that Reverend Samu’s application
was at the nomination of the New Zealand Church and did not require nomination of
the Mangere Church, then without expressing any final view on the matter, the
Registrar-General may have been mistaken in removing Reverend Samu from the list
of celebrants. The propriety of that decision is something only the Registrar-General
can answer to.
Even if there were any potential liability on the part of the Trust Board, for
example if it could be said they acted in bad faith, or in breach of trust, as we have
discussed, this is not something that the Members have standing to enforce outside the
mechanisms in the Act.
For these reasons, the fourth cause of action as pleaded could not succeed. The
Judge was correct to strike it out.
We should add that we find this cause of action curious. It must have been
readily possible, assuming the pleading is correct and Reverend Samu did not require
the Trust Board’s endorsement, for the position to be corrected by the New Zealand
Church, as the alleged endorsing body. If the Registrar-General were persuaded he
had acted in error, he would surely have readily corrected the record.
Fifth cause of action — rejection of grant of COVID-19 funding
Submissions
The Members say that nowhere in the Trust Deed is there a power enabling the
Trust Board to reject a grant of property as they did here. The Judge was wrong to say
that the Trust Board could reject money for which it did not apply.
The Members rely on Butler-Sloss v Charity Commission for England and
Wales where the charity was permitted to adopt an investment philosophy that focused
on ethical investments that were climate friendly.[49]
[49] Butler-Sloss v Charity Commission for England and Wales [2022] EWHC 974 (Ch).
It seems however that the Members’ real reliance is on a subsequent guideline
issued by the Charity Commission for England and Wales regarding the powers to
refuse gifts.[50] The guideline says:
[50] Charity Commission for England and Wales “Accepting, refusing and returning donations to your
You must have a legal power to refuse or return a donation and be satisfied
that using the power is in the best interests of your charity.
Is it arguable that the Trust Board was not entitled to reject the grant?
We agree with the Judge that the application for the grant was no doubt
well meaning and showed a degree of ingenuity and focus on the part of Ms Mason
and her husband/business partner.
However, we also agree with the Judge that the Trust Board was entitled to
reject the grant and that there is no tenable argument to the contrary. First, this was
not a donation. For that reason alone, the English judgment and guideline relied on
are not applicable.[51]
[51] We note also that the “guideline” referred to by the Members records that charities usually have a
The Trust Board was not the applicant for the grant and did not authorise the
application. The named recipient of the grant, or at least contact person in respect of
the grant — was Ms Mason, not the Trust Board. This in itself could have caused problems, with Ms Mason arguably able, if she saw fit, to assert some authority over
administration of the grant, as she had effectively assumed authority to make the
application.
Most importantly, the grant was not an unfettered one. There were a number
of conditions that would have had to be met by the Trust Board. These included that
the Trust Board would be required to provide a final report within four weeks of
“completing your project”, a project that was not theirs to complete, nor would they
have necessarily known how to complete it. They were required to sign an agreement
and to provide information specified by the Ministry for Pacific Peoples. The
Trust Board would obviously have a responsibility to use the money in accordance
with the application, whatever that might have been. They were required to complete
an evaluation together with receipts and/or invoices as proof of the way in which the
funds were used.
Indeed we note that one of the reasons the Trust Board gave for rejecting the
grant was that they were not prepared to take responsibility for care and maintenance
of the equipment. But in any event the reasons given were immaterial. The Trust
Board were clearly entitled to reject the grant.
We agree that there was no need for the Trust Board to pointedly state that the
name of the Mangere Church was “misused” as they did in their email to the Ministry.
Nonetheless it cannot be said that the Trust Board was under any obligation to
Ms Mason, or can be subject to any legitimate claim by her. What happened is a
logical corollary of Ms Mason having made the application in the name of the
Mangere Church, without authority to do so.
The Judge was correct to strike out the pleadings under the fifth cause of action.
Postscript
For the reasons given we do not consider the fourth and fifth causes of action
have any future, no matter how advanced. However, we understand the importance to
the Members of the issues regarding appointment of a minister and the issue of the
trespass notices, especially given the number of the congregation apparently involved and the pleading that Waddon Place was directly funded in part by those same people.
Unless the position is very different to that pleaded, the Trust Board cannot
realistically expect to leave matters on that basis and for the Mangere Church to
survive.
[107] We are surprised that the New Zealand Church or the Samoa Church (each
being described as an “umbrella body”) have not interceded, or that a respected party
has not been appointed to mediate between the two factions. Failing all else, the
Members should assess the potential remedies under the Act, referred to by the Judge
and this Court. Either would require a new proceeding involving the Attorney-
General.
Result
The appeal is dismissed.
For the avoidance of doubt, the proceeding is struck out.
[110] The appellants must pay the respondents costs for a standard appeal on a
band A basis, together with usual disbursements.
Solicitors:
Woodroffe Law Partnership, Auckland for Appellants
S J Davies, Auckland for Respondents
| Judgment: | 27 August 2025 at 2.30 pm |
JUDGMENT OF THE COURT
| A | The appeal is dismissed. |
| B | For the avoidance of doubt, the proceeding is struck out. |
| C | The appellants must pay the respondents costs for a standard appeal on a |
| band A basis, together with usual disbursements. |
AUIMATAGI v MANGERE CONGREGATIONAL CHURCH OF JESUS TRUST BOARD [2025] NZCA 429
[27 August 2025]
the name as shown in the intituling.
Mangere Church’s relationship with the Samoa Church. An entity called the Congregational
Church of Jesus in New Zealand (which we refer to as the New Zealand Church) is also referred
to in the appellants’ affidavit evidence, variously as “the National Church body” and “an umbrella
organisation including various congregations in Auckland”.
not represented by the first appellant, consists of 70 people. Nothing turns on the numbers
involved.
NZLR 720 [judgment under appeal].
in relevant detail where it is not contested.
appointment was therefore ultra vires; that Reverend Uli had no right to use the manse and his
appointment and use were in breach of the Trust Board’s fiduciary duties. They also seek an order
under s 112 of the Trusts Act 2019 to remove all trustees, an order that a new board be selected by
an independent body appointed by the Court and exemplary damages.
members are permitted to use the Church property, orders for removal of the trustees under s 112
of the Trusts Act, exemplary damages and costs.
list of people authorised to celebrate marriages maintained by the Registrar-General of Births,
Deaths and Marriages under the Marriage Act 1955. We have treated the parties’ references to a
celebrant’s licence as referring to inclusion on the list.
owed to “the beneficiaries”, orders for removal of the trustees, exemplary damages of $150,000
and costs.
Ms Mason is void, in breach of the respondents’ fiduciary duties, that Ms Mason was entitled to
make the application in question, removal of the trustees, exemplary damages of $250,000 and
costs.
(CA) at 267, and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
breaches of duty as breaches of fiduciary duty but it is clear he was addressing breaches of trustee
duties generally.
NZHC 29, [2014] NZAR 1167.
under the Marriage Act is maintained by the Registrar-General, not the DIA.
allowed by the Judge to amend, the judgment was not stayed pending appeal. We consider that
the proceedings have been struck out in accordance with the Judge’s ruling.
Mortmain: Being the Fourth Edition of Tudor’s Charitable Trusts (Sweet & Maxwell, London,
1906) at 121 (footnote omitted).
also referred to William Henderson and others Tudor on Charities (11th ed, Sweet & Maxwell,
London, 2022) at [6-017].
in respect of any property, for an order requiring the trustees to carry out the trust or requiring a
trustee to meet their liability for any breach of trust affecting property and/or for directions in
respect of administration of a trust. Such an application has to be served on the Attorney-General
and others as directed and the court may make such order as it thinks fit.
Residual Health Management Ltd HC Napier CIV-2004-441-35, 30 March 2004 at [19].
addresses that aspect of the pleading.
notices.
Information Act 1982. Much of those documents were withheld on the grounds of privacy or legal
privilege, however they appear to document the correspondence between the Trust Board, the DIA
and the Registrar-General.
charity” (4 March 2024) GOV.UK <
general power to refuse a donation.
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