Maharishi Foundation Incorporated v Benner
[2021] NZHC 1930
•29 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-470-000007
[2021] NZHC 1930
BETWEEN MAHARISHI FOUNDATION INCORPORATED
PlaintiffAND
GARY TREVOR BENNER
Defendant
Hearing: 20 May 2021 Appearances:
G Williams for the Plaintiff
J A Dennis for the Defendant
Judgment:
29 July 2021
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 29 July 2021 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Simpson Grierson, Auckland Harris Tate, Tauranga
G Williams, Auckland
MAHARISHI FOUNDATION INC v BENNER [2021] NZHC 1930 [29 July 2021]
Introduction
[1] Twice a day, people around the world sit down for 20 minutes seeking complete inner silence through the practise of Transcendental Meditation. The practise originated in ancient India. It was introduced to the West in the 1950s by His Holiness Maharishi Mahesh Yogi (the Maharishi) and popularised by the Beatles’ 1967 trip to Rishikesh. In New Zealand, members of the plaintiff, Maharishi Foundation Incorporated (MFI), consider themselves part of the movement.
[2] This case concerns ownership of the domain name tm.org.nz. The “tm” is an abbreviation of Transcendental Meditation. MFI claims that the defendant, Mr Gary Benner, acquired and holds legal title to the domain name as bare trustee for MFI. A bare trustee holds property on trust for the absolute benefit of and at the absolute disposal of another person and has no duties other than to convey the property to them when requested.1 MFI has demanded that Mr Benner convey legal title to the domain name to it as beneficial owner. Mr Benner has refused. Accordingly, Mr Benner is, MFI says, in breach of his duty to MFI as bare trustee.
[3] MFI seeks a declaration that Mr Benner holds the domain name on trust as a bare trustee for MFI. MFI also seeks an order that Mr Benner immediately assign the domain name to MFI to enable it to obtain legal title and register it in its name. MFI applies for summary judgment of its claim.
[4] Mr Benner rejects the claim that he bought and holds the domain name as trustee or bare trustee for MFI. He says that he bought the domain name in his own right and has held it as such, to advance the worldwide Transcendental Meditation movement established by the Maharishi.
[5] To order summary judgment, I need to be satisfied that Mr Benner has no arguable defence to MFI’s claim, meaning that there no real question to be tried.2 MFI claims that Mr Benner holds the domain name as bare trustee for it as beneficial owner. Mr Benner denies that he holds it as trustee, bare or otherwise. He maintains that he
1 Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at [3.2.3].
2 High Court Rules 2016, r 12.2(1).
owns the domain name personally for the benefit of the Maharishi movement. Therefore, the question I must decide is: is it credible that Mr Benner bought and holds the domain name personally for the benefit of the Maharishi movement?
[6] If no, before making the orders sought by MFI, I will need to be satisfied that Mr Benner holds the domain name as bare trustee and therefore has a duty to convey the domain name to MFI on request. This will involve me considering the functions performed by Mr Benner in relation to the domain name over the years and whether they are consistent with the existence of a bare trust.
Legal Principles
[7] The principles to be applied in an application for summary judgment have been clearly established through decisions of the Court of Appeal in Pemberton v Chappell, Westpac Banking Corp v MM Kembla New Zealand Ltd, and Krukziener v Hanover Finance Ltd.3 Accordingly, in considering MFI’s application I propose to apply the following principles:
(a)MFI must satisfy the Court that Mr Benner has no arguable defence to MFI’s claim. This means that there is no real question to be tried.
(b)It is generally not possible to determine disputed issues of fact based on affidavit evidence alone, especially where issues of credibility arise.
(c)This does not mean that the Court must accept every factual assertion made in opposition to an application for summary judgment. The Court is entitled to take a robust and realistic approach where the facts require it.
3 Pemberton v Chappell [1987] 1 NZLR 1 (CA); Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA); and Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.
Is it credible that Mr Benner bought and holds the domain name personally for the benefit of the Maharishi movement?
Circumstances around the domain name’s acquisition
[8] The former national director and current member of MFI, Graeme Lodge, deposes that at some time at least 23 years ago, he, Mr Benner and Michael Hirst, had a phone call to discuss registering the domain name “tm.org.nz”. Mr Lodge claims that they agreed that Mr Benner would register the domain name “tm.org.nz” on behalf of MFI, and that Mr Benner would hold legal title to the domain name on trust for MFI.
[9] In his first affidavit filed in support of MFI’s application for summary judgment, Mr Lodge deposed that this conversation took place in around March or April 1997, and that Mr Benner registered the domain name on or about 9 April 1997.4 In an affidavit in reply, he conceded that he was mistaken about the timing of the telephone discussion.5 However, he is clear that the conversation took place.
[10] Mr Benner denies that such a phone call occurred. He deposes that he registered the domain name earlier, in 1995 or 1996. He says that he did so on his own initiative, and not for or in collaboration with MFI. Mr Benner explains that his background is in internet-based industries and that he has founded many technology- based start-ups. In 1995, he created an internet hosting business called “123 Internet”. The company provides internet-based professional services including domain name registration, website hosting and email services. Mr Benner deposes that when he established 123 Internet in 1995, he registered several domain names. These include: 123.co.nz; corporate.co.nz; election.co.nz; gallery.co.nz; and tm.org.nz.
[11] Mr Benner deposes that at that time there was no central government regulatory body overseeing the administration of domain names. The University of Waikato informally managed the registration of domain names. It was not until 1997 that the New Zealand Internet Registry Ltd (trading as “Domainz”) assumed responsibility for registering and administering domain names in New Zealand. Mr Benner understands
4 Affidavit of Mr Graeme Edward Lodge sworn 20 January 2021.
5 Affidavit of Mr Graeme Edward Lodge sworn 12 April 2021.
that Domainz conducted a bulk upload of domain names previously registered by the University of Waikato, attributing the date of transfer of each domain name as its date of registration. Mr Benner has produced extracts from the Domain Name Commission New Zealand Register which show entries for the domain names he says he registered in around 1995 and 1996 when he established 123 Internet. All these domain names, including tm.org.nz, have a registration date of 9 or 10 April 1997.
[12] Thus, Mr Benner deposes that it is not possible to tell exactly when he registered the domain name tm.org.nz with the University of Waikato. However, he has adduced evidence of a historic version of a homepage he says he created in or around 1996 using the tm.org.nz domain name. The record is dated 30 December 1996. It is a record from a webpage at the address It includes this disclaimer:
This document has been prepared privately as a public service to inform the general public of the programs developed by His Holiness Maharishi Mahesh Yogi. This home page is not a publication of the organization that is responsible for teaching Maharishi’s programs.
For information directly from the Maharishi University of Management, located in Fairfield, IA, click here.
[13] Mr Benner says that this record demonstrates that he had a live webpage operating using tm.org.nz in 1996, and that the webpage and the domain name were not associated with MFI at that point.
MFI’s use of the domain name
[14] Then, in or around early 1997, when Mr Benner was involved with MFI, he agreed that the organisation could make use of the tm.org.nz domain and the related website.
[15] Around 10 years ago, MFI decided to purchase and set up its own webpage and domain name. On 20 April 2012, it registered the domain name “transcendentalmeditation.org.nz”. A webpage was then published on that domain. Mr Benner states that, at MFI’s request, he set up a domain name redirection for tm.org.nz to the MFI domain. That meant that any person entering “tm.org.nz” into a
web browser was automatically redirected to MFI’s domain and its webpage. Mr Benner deposes that he only agreed to this redirection because at that time he considered MFI to be an appropriate vehicle to advance the Maharishi’s movement in New Zealand. He maintains that the tm.org.nz domain name is and has always been his personal property.
MFI’s case
[16] MFI claims that Mr Benner’s account is simply not credible. It relies on three main points. First, the evidence of Mr Lodge of an oral agreement between he, Mr Benner and Mr Hirst, that Mr Benner would acquire and hold the domain name on trust for MFI.
[17] Second, the fact that Mr Benner has allowed MFI to continuously use the domain name for MFI’s purposes for 23 years.
[18] Third, an email exchange between Mr Benner and a former member of the board of directors of MFI, Damian Lodge, in June 2020. On 15 June 2020, Damian Lodge sent an email on behalf of MFI to Mr Benner which said:
Dear Gary
Thank you for holding in trust the tm.org.nz domain name on behalf of Maharishi Foundation Inc. for so many years, we greatly appreciate it.
As MFI is now in a position to properly manage this domain, could you please coordinate with Damian to transfer it to the direct ownership of MFI.
Thank you.
Jai Guru Dev
Raja Michael, Stuart, David and Damian Board of Directors
Maharishi Foundation Inc All best wishes,
Damian
[19]Mr Benner replied by email dated 24 June 2020:
Dear Damian & Stuart,
As you know I purchased and have kept this generic domain name in trust for the last 23 years, and as you may recall, successfully ensured that it has not been mishandled by those lacking the technical expertise or business acumen to understand the significance of how it is managed. As an aside, please note that I have had many offers over the years to purchase this domain for a significant 5 figure amount, offers which I have turned down.
Therefore, mindful of the trust placed in me by His Holiness Maharishi Mahesh Yogi, and as a custodian of his knowledge for over 48 years, I will retain ownership of this resource and while I’m an accredited member, I shall continue to make it available for use by Maharishi Foundation Incorporated in New Zealand, while it truly represents the best interests of Maharishi’s goal to create an Age of Enlightenment here in New Zealand, and also around the World.
In the case of my demise, my Will and Executors have directions to follow my instructions as to its maintenance.
Kind regards Gary
[20] MFI contends that Mr Benner’s statement that he “purchased and has kept this generic domain name in trust for the last 23 years” amounts to an admission that he holds the domain name on trust for MFI. MFI submits that this admission entitles it to judgment under r 15.15 of the High Court Rules 2016.
[21] Mr Benner deposes that by this statement he did not mean that he held the domain name on trust for MFI. He says that he meant that he owned tm.org.nz as a trusted custodian and allowed it to be used by the Maharishi movement.
[22] MFI submits that Mr Benner’s explanation is simply not plausible. It points to the fact that Mr Benner’s statement was in response to the email of Damian Lodge, in which Mr Lodge thanked him for “… holding in trust the tm.org.nz domain name on behalf of Maharishi Foundation for so many years…”. It also points to Graeme Lodge’s evidence of the original arrangement, the fact that MFI has had ongoing use of the domain for its purposes for over 23 years, and the fact that it is inconsistent with the clear meaning of Mr Benner’s email response to Damian Lodge on 24 June 2020. Further, that the very first time that Mr Benner asserted that he did not hold the domain on trust for MFI was after these proceedings were commenced.
My assessment
[23] I do not accept that Mr Benner’s explanation is totally lacking in credibility, for the following reasons.
[24] First, it is disputed whether a conversation took place between Graeme Lodge, Mr Benner and Mr Hirst some 23 or so years ago in which they agreed that Mr Benner would purchase and hold the domain name for MFI. There is no record of the conversation. Mr Lodge is uncertain about when the conversation took place. This factual dispute raises issues of credibility which I am unable to assess following a summary hearing only.
[25] Second, Mr Benner has advanced an alternative explanation which is not inherently improbable and which is somewhat supported by evidence. By that I am referring to the historical record of his own Transcendental Meditation website, attached to the domain name tm.org.nz and dated 30 December 1996, which was not associated with MFI. This evidence is not decisive, as Mr Benner could have used the domain name for his own purposes at that point in time, even if he had agreed to hold it on trust for MFI as alleged by Graeme Lodge. But this evidence potentially provides some support for Mr Benner’s account of events.
[26] Third, I do not agree that Mr Benner’s statement in his 24 June 2020 email is necessarily the admission MFI contends. Mr Benner is a layperson. His reference to keeping the domain name on trust is not necessarily a reference to holding it pursuant to a trust in the legal sense of the word.
[27] Moreover, this statement needs to be read alongside Mr Benner’s statement in the following paragraph where he says: “Mindful of the trust placed in me by His Holiness Maharishi Mahesh Yogi, and as custodian of knowledge for over 48 years, I will retain ownership of this resource, and while I am an accredited member, I will continue to make it available for use by the Maharishi Foundation Incorporated in New Zealand while it truly represents the best interests of Maharishi’s goal to create an Age of Enlightenment here in New Zealand, and also around the World”. This statement corroborates the explanation Mr Benner now gives, that he sees himself as
being in a trusted relationship with the Maharishi and the movement (rather than MFI specifically).
[28] As to what can be taken from Mr Benner permitting MFI to use the domain name over 23 years, this could be indicative of a bare trustee arrangement as alleged by MFI. However, it also could be indicative of no more than what Mr Benner has articulated in the second paragraph of the letter: that he has and will continue to permit MFI to use the domain name to further the movement in New Zealand, consistent with his commitment to the Maharishi.
[29] I find that Mr Benner’s defence that he bought and holds the domain name personally is not inherently lacking in credibility or inarguable.
[30] As I have found that Mr Benner has a credible defence that he holds the domain name personally, and therefore that there was no agreement to create a trust, it is not necessary for me to proceed to consider whether the functions he performed over the years are consistent with a bare trust.
Result
[31]MFI’s application for summary judgment is dismissed.
[32] As MFI is the unsuccessful party it will pay Mr Benner’s costs and disbursements on a 2B basis. If the parties are unable to agree on quantum, I will accept memorandum of up to three pages, from Mr Benner within 15 working days of the date of this judgment, and from MFI within ten working days after that.
Associate Judge Gardiner
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