K'aute Pasifika Trust - [2019] NZHC 2432

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-189

[2019] NZHC 2432

IN THE MATTER of the Charitable Trusts Act 1957

IN THE MATTER

of the K’AUTE PASIFIKA TRUST

Hearing: On the papers

Counsel:

DE McLay for K’aute Pasifika Trust

Judgment:

26 September 2019

JUDGMENT OF FITZGERALD J

[As to application for approval of a scheme under the Charitable Trusts Act 1957]

This judgment was delivered by me on 25 September 2019 at 4 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Nielsen Law, Hamilton (D Nielson)

Re K’aute Pasifika Trust [2019] NZHC 2432 [26 September 2019]

[1] The applicant, the K’aute Pasifika Trust (the Trust), seeks the approval of a draft scheme under the Charitable Trusts Act 1957 (the Act). In short, the Trust seeks:

(a)Amendment of its current constitution (adopted in 2012) to alter the objects of the Trust. The Trust’s objects currently limit it to work within the Waikato region; the Trust wants to expand its operations beyond that region;

(b)Approval of the 2012 constitution, which was adopted on the mistaken understanding that the Trust had the power to amend the constitution without recourse to the Court (in particular, the approval of cl 18, which will allow the Trust to make administrative changes to the constitution without further recourse to the Court);

(c)Approval of a 2004 constitution, which was also adopted on the mistaken understanding that the Trust had the power to amend the constitution without recourse to the Court; and

(d)Approval of all trustee appointments made since 2004 (under either the 2004 or 2012 constitutions), to regularise the business of the Trust.

Basis for application

Objects of the Trust

[2] The Trust was created by way of a constitution executed in 1999. That constitution (and all subsequent constitutions of the Trust) included a number of charitable objects, which provide the Trust will, inter alia:

(a)Promote unity and cooperation within the Pacific Island communities in Waikato towards a holistic healthy lifestyle;

(b)Promote traditional ways of healing for Pacific Island peoples;

(c)Improve services delivered to Pacific Islanders in the Waikato region;

(d)Provide a range of services and programmes to Pacific Island people in the Waikato region, in health, housing, employment, justice, immigration, and education, as well as social programmes;

(e)Operate primarily as a Pacific Islands health clinic (although not exclusively so);

(f)Advocate and liaise with Government Ministries, local government, services organisations and agencies on behalf of Pacific Island communities; and

(g)Operate with best practice, including by engaging experts, using quality assurance models, and undertaking continuous reassessment and evaluation of the Trust’s effectiveness.

[3] As is apparent, many of these objects are centred around the provision of services within the Waikato region. The Trust seeks to remove references to the Waikato and instead refer to providing assistance to “Pacific Island communities in New Zealand”.1 It advances two broad reasons why this change should happen:

(a)The Trust has expanded its operations to include initiatives beyond…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2432
Decision Date: 26 September 2019

CaseChat Overview and Summary

The K’aute Pasifika Trust, a charitable trust based in Waikato, New Zealand, sought approval of a draft scheme under the Charitable Trusts Act 1957. The Trust applied to amend its constitution to expand its operations beyond the Waikato region, to approve the 2004 and 2012 constitutions, and to regularise trustee appointments made since 2004. The central legal issues were whether the proposed amendments were inexpedient, and whether the Court could exercise its inherent jurisdiction to approve the constitutions and trustee appointments. The Court held that the proposed amendments were inexpedient as they would restrict the Trust's ability to expand and obtain funding. The Court also found that it was appropriate to exercise its inherent jurisdiction to approve the constitutions and trustee appointments, given the passage of time and the lack of opposition. The Court granted the Trust's application and approved the draft scheme.

The Court considered that the references to “Waikato” in the Trust’s objects were restricting its ability to both expand its operations and obtain funding. The Court was satisfied that the Trust’s central purpose of assisting Pacific communities remained intact, and the variation was therefore a minimal alteration to the original objects of the Trust. The Court found that the Trust’s mistaken understanding regarding the power to amend the constitution did not preclude retrospective approval by the Court. The Court further found that the Trust’s application had been duly advertised and no opposition had been filed, and the Attorney-General raised no objections to the proposed scheme. The Court approved the draft scheme proposed by the Trust and made orders in terms of the originating application.

Orders