Congregational Christian Church of Samoa (Westmere) Trust Board v Tilaima HC Auckland CIV 2009-404-005844

[2011] NZHC 2106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-005844

UNDER  the Judicature Act 1908

BETWEEN  CONGREGATIONAL CHRISTIAN CHURCH OF SAMOA (WESTMERE) TRUST BOARD

Plaintiff

ANDSEUMANU TILAIMA & ORS Defendants

CIV 2008-404-001893

AND UNDER                 the Judicature Act 1908

BETWEEN  SEUMANU TILAIMA & ORS Plaintiffs

ANDCONGREGATIONAL CHRISTIAN CHURCH OF SAMOA (WESTMERE) TRUST BOARD

Defendants

Hearing:         13 December 2011

Appearances: S Perese (for Plaintiff in proceeding -1893 and Defendant in proceeding -5844)

O Woodroffe (for Defendants in proceeding -1893 and Plaintiffs in proceeding -5844)

Judgment:      13 December 2011

(ORAL) JUDGMENT OF ANDREWS J

Solicitors:           Woodroffe Law Partnership, PO Box 6505, Wellesley Street, Auckland 1141 [email protected]

Ed Johnston & Co, PO Box 21850, Henderson, Waitakere 0650  [email protected]

Counsel:            S Perese, PO Box 47114, Ponsonby, Auckland 1144  [email protected]

CONGREGATIONAL CHRISTIAN CHURCH OF SAMOA (WESTMERE) TRUST BOARD V SEUMANU TILAIMA & ORS HC AK CIV 2009-404-005844 [13 December 2011]

[1]      At [2] of my judgment of 20 December 2010, I expressed my hope that the presence at the hearing that preceded that judgment of a large number of members of the congregation of the Congregational Christian Church of Samoa at Westmere from both sides of the proceeding would enable the opposing groups to gain an understanding of each other’s sincerely held views and promote the possibility of resolution.  It is deeply saddening that 12 months later the parties are not one step nearer to resolving their differences.

[2]      In my Minute of 2 February 2011,  I directed  that the Public Trustee be appointed as trustee.  I directed that counsel provide me with a brief memorandum setting out the requested terms of appointment.  Rather than agree on the terms of the Public Trustee’s appointment, the parties have appeared before the Court again. They have not agreed on the terms of the Public Trustee’s appointment.

[3]      At issue are the contention by Mr Tuasa’s group that Mr Tuasa and the Public Trustee should act jointly, and their request for the Court to give directions as to the shared use of the Church premises at Westmere.  I note that the latter issue was not raised at the earlier hearing.  Having set out those two issues, it is apparent that the fundamental matter at issue between the parties is the appointment and continued

presence of the Minister of the church, Reverend Va’aelua.1

[4]      While there is no disagreement that the Public Trustee should be appointed there is, as I noted earlier, a difference of view as to the terms of that appointment.

Mr Tuasa

[5]      Mrs Woodroffe submitted that Mr Tuasa should work hand-in-hand with the Public Trustee.  She submitted that in the light of my finding that Mr Tuasa is the sole current trustee, to take that role away from him would have huge public implications for Mr Tuasa, his family, and indeed the whole church community.

[6]      Mr Perese submitted that if Mr Tuasa were to be an active trustee with the

Public Trustee then there would be no equality between the two groups, and no

perception of equality, because there is no trustee from Mr Sanerivi’s group.   He submitted that, if Mr Tuasa is to remain a trustee he should be required to give an undertaking to abide by any decision of the Public Trustee, or be substituted, or stand aside.   He submitted that this is a critical matter of perception.  It is significant, he said, that Mr Tuasa does not have the confidence of Mr Sanerivi’s group.

[7]      At [66] of my judgment of 20 December 2011 I concluded that Mr Tuasa is the only current trustee.  Notwithstanding that finding, I am also well satisfied that it is absolutely necessary for the Public Trustee to act, and to be seen to be acting, completely independently for the purposes for which he is to be appointed.  Those purposes are, in broad terms, the convening of a meeting of members of the congregation for the purpose of appointing a trustee or trustees in addition to Mr Tuasa, and to consider the terms of the Constitution and Trust Deed of the church, and to consider the appointment, and the process by which an appointment would be achieved, of a Board of Management so that the church can be, if it is at all possible,

re-united.2

[8]      Having said that it is necessary for the Public Trustee both to be, and to be seen to be, completely independent, I do not intend to order that Mr Tuasa should be dismissed or otherwise removed as trustee.

[9]      I note all that Mrs Woodroffe has said.  I intend absolutely no disrespect to Mr Tuasa.  His position as the only current trustee is clearly of great significance to the church, but I am confident that Mr Tuasa understands that for a limited period of time, only, the church will be best served by his allowing the Public Trustee to have the independence that I consider is required.  I have no doubt that the Public Trustee will refer to Mr Tuasa for his advice, and will obtain the benefit of his wisdom and his knowledge of the affairs of the church.

[10]     I consider that it is necessary, in orders for matters to move forward, that the Public Trustee must be able to act independently.  I record Mrs Woodroffe’s advice that Mr Tuasa undertakes that for the period of the Public Trustee’s appointment he will stand aside and allow the Public Trustee to act independently.

[11]     I come then to the matter of joint use.

Joint use

[12]     In her submissions, Mrs Woodroffe noted that this is, of course, Christmas.  It is a time of hope and good cheer.  One hopes that it is a time of good will between people.   She submitted that since Mr Tuasa’s group decided to worship elsewhere they have been unable to hold funerals, unable to hold marriages, and unable to hold baptisms in the church that many of them contributed to both financially and in terms of physical work.

[13]     Mrs Woodroffe submitted that it is appropriate that there be an order for joint use of the church in the meantime.  She submitted, in reply to a submission made by Mr Perese, that there has been joint use in a previous case involving members of a congregational church.  She referred me to the matter of the Onehunga Presbyterian Church in which the “Samoan side” in that case wanted to worship in accordance with Congregational Christian church practices.  In that case the Presbyterians have tolerated, for a considerable period of years, the use of the church by those members who wished to worship according to Congregational Christian church practices.  She asked for there to be a similar inclusiveness in the present case.

[14]     In a further response to a submission by Mr Perese, Mrs Woodroffe submitted that there is nothing in the Trust Deed or the Constitution of the church which would prohibit joint use of the property.  Indeed, she submitted, joint use falls well within the wording of the charitable purposes set out in clause 3 of the Constitution which is that the objects of the trust are for the furtherance of  “the religious, charitable, benevolent, educational and social work of the Church ...”.   It further fits within clause 3(vi) of the Constitution which provides that one of the objects of the Trust is “To do all such other acts or things as are incidental or conducive to the attainment of the above objects or any of them”.  She further referred to an express power in the constitution that allows the property to be leased, clause 6(iv).

[15]     As a final submission in this respect, Mrs Woodroffe submitted that fairness and equality between the parties could be promoted, if that were necessary, by a

direction that both parties vacate the premises until such time as resolution is achieved.

[16]     Mr Perese submitted that joint use should not be directed, on several grounds. The first is that, he submitted, it is not permitted under the Trust Deed.  Secondly, he submitted that it had never been ordered in the case of a Congregational Christian Church, and that is because the Congregational Christian Church in Western Samoa has regulated its affairs, such that there can be only one church within any “village”. Thirdly, he submitted that a joint use is not permitted under the Constitution of the church.  Fourthly, he submitted that Mr Tuasa’s group has delayed in this matter and whilst it has been “live” for many months, no application for joint use has, in fact, been made.  Fifthly, Mr Perese submitted that from a philosophical perspective, joint use should not be ordered.  He submitted that if the objective is for two parties to come together then they should not begin separately.  He submitted that a joint use direction will cement division and not facilitate consensus.

[17]     Mr Perese then submitted that to make an interim order would require the Public Trustee to read the Trust Deed in a certain way, and that would be inappropriate given the intended role of the Public Trustee to review and suggest any required amendments to the provisions of the Trust Deed.

[18]     Finally, Mr Perese submitted that, in light of the fact that Mr Tuasa’s group has been worshipping elsewhere for some time now, the balance of convenience is in favour of the status quo remaining.  He also submitted that at the time of the hearings in December 2010 and March 2011 there was a clear understanding that the status quo should remain pending the appointment of the Public Trustee.

[19]     Whilst this is a particularly difficult issue in that I have not had the benefit of an application or full submissions, I consider that it is appropriate that there be a very limited direction for joint use of the church.  I consider that over the Christmas and New Year period, Mr Tuasa’s group should have the ability to worship in the church in which they worshipped for many, many years.   I would hope that by making that direction, members of both groups would attend at services, whether

they are conducted by Reverend Va'aelua or, by the Minister who conducts services

for Mr Tuasa’s group.

Terms of the appointment of the Public Trustee.

[20]     As I indicated earlier, I said in the judgment of 20 December 2010 that the appointment was in order to facilitate the appointment of trustees and a Board of Management.   I also noted at [104] of the judgment that there is a difficulty with respect to the title to the land on which the church and the manse are sited.

[21]     As  to  the  appointment  of  trustees,  they  are  to  be  appointed  by  a  duly convened meeting of the congregation of the Westmere Church.3     There is no reference in the Constitution to the number of trustees, except that it is recorded in the Trust Deed that three trustees were appointed.  That may be an indication that three was considered to be the appropriate number of trustees.   The role of the trustees is discussed at [42] to [46] of the judgment.

[22]     The Board of Management is not the same as the trustees.  The board has a separate role,4 and the board is to have no more than ten members.5

[23]     The Constitution does not specify who is appoint board members, and by what process.6    I concluded in the judgment that it cannot be said that any of the persons currently named as members of the board were appointed or elected in that capacity.7    There is no Board of Management in place that complies with the Constitution.8

[24]     The Public Trustee is to be appointed on the following terms:

(a)       By 31 March 2012, the Public Trustee is to compile a list of the members of the congregation of the Congregational Christian Church

3 At [39].

4 At [59].

5      At [53] and clause 4(1) of the Trust Deed.

6 At [55].

7 At [67].

8 At [68].

of Samoa at Westmere (“the congregation”), as at the date of this judgment.     I  make  it  clear  that  the  congregation  encompasses members of both groups  involved in this proceeding.

(b)By 30 April 2012, the Public Trustee is to convene a meeting of the congregation for the purpose of appointing three members of the congregation to be trustees in addition to Mr Tuasa.  That is, Mr Tuasa and one further member from his group, and two members of the congregation from Mr Sanerivi’s group.  I record Mr Perese’s advice that  Reverend Va'aelua undertakes  to  stand  aside and  not  seek  or accept appointment as a trustee.

(c)       By 30 June 2012, the Public Trustee is to review the Constitution and

Trust Deed, and to submit a report to the Court as to:

(i)any amendments required to the Constitution and the Trust Deed that are necessary so that a Board of Management can be put in place.   For the purposes of preparing this report the trustees appointed pursuant to (b) above, are to work with, and to co-operate with the Public Trustee, but in the event of any difference in views the Public Trustee’s view shall prevail.

(ii)any amendment that is required address the issue as to the title of the land on which the church and manse are sited, referred to at [104] of the judgment of 20 December 2010.

(d)To have discussions with the both groups with a view to promoting a mediated resolution of the differences between them.

[25]     With respect to joint use of the church over the Christmas and New Year period, I direct as follows:

Christmas Eve

Mr Sanerivi’s group is to have the use of the church and hall up until 9pm.

Mr Tuasa’s group is to have the use of the church and hall between 11pm and

1am (on Christmas Day).

Christmas Day

Mr Sanerivi’s group is to have the use of the church and hall up until 3pm.

Mr Tuasa’s group is to have the use of the church and hall between 4pm and

7pm.

New Year’s Eve

Mr Tuasa’s group is to have the use of the church and hall between 4pm and

9pm.

Mr Sanerivi’s group is to have the use of the church and hall between 10pm

and 1am (on New Year’s Day).

New Year’s Day

Mr Sanerivi’s group is to have the use of the church and hall up until 3pm.

Mr Tuasa’s group is to have the use of the church and hall between 4pm and

7pm.

[26]     I note that above terms of usage have been agreed between the two groups, both of which have reserved their positions in respect of joint use of the church facilities.   Both groups are encouraged to attend and participate in each other’s services on these two festive occasions.

[27]     The Public Trustee and both parties to the proceedings have leave to seek further directions from the Court.

[28]     The reasonable costs and disbursements of the Public Trustee are to be met from the Congregational Christian Church of Samoa (Westmere) Trust.

Andrews  J