McDonald, People's Worship in Freedom Mission Trust

[2013] NZHC 2417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004810 [2013] NZHC 2417

UNDER THE  Applications pursuant to sections 66 and

77 of the Trustee Act 1956 and/or under Part 3 of the Charitable Trusts Act 1957

IN THE MATTER OF       The People's Worship in Freedom Mission

Trust established 27 October 1962

BETWEEN  CALLUM MACDONALD of Auckland

Chartered Accountant as Trustee for the People's Worship in Freedom Mission Trust

Applicant

Hearing:

16 September 2013

Appearances:

G Blanchard (for J F Armstrong) for the Applicant

G Bogiatto for the People's Worship in Freedom Mission Trust and its Congregation

J C Chamley for the Oral Roberts Evangelistic Movement and World Outreach New Zealand

E J Devine for the Attorney-General

Judgment:

16 September 2013

ORAL JUDGMENT OF PRIESTLEY J

Counsel/Solicitors:

G Blanchard, Armstrong Murray, Takapuna G Bogiatto, Auckland

J C Chamley, thorne, Thorne, White & Clark-Walker, Auckland E J Devine, Crown Law Office, Wellington

Callum MacDonald, People’s Worship in Freedom Mission Trust [2013] NZHC 2417 [16 September 2013]

[1] This proceeding has had a protracted history. At the outset let me express the Court’s appreciation to all counsel (including Mr Armstrong who is not here today) for the professional and competent way in which they have assisted the Court and discharged their respective responsibilities.

[2]  An application has been made under Part 3 of the Charitable Trusts Act 1957 (the Act). That application has been publicly advertised in both the New Zealand Herald and the Gazette. Additionally a full and detailed report, essentially approving what is sought, has been filed by the Attorney-General.

[3]     The application relates to a charitable trust (with a religious purpose) known as the People’s Worship in Freedom Mission Trust.

[4] The application, essentially under s 33, was necessary  for  a  variety  of reasons. First, realty which the original trustees had owned had been sold. Secondly, the corpus of the Trust, as the result of the delinquency of a former trustee, had been seriously eroded. Thirdly, there were various interpretation difficulties arising out of the original Deed of Trust which was executed many years ago. Fourthly, there had been new forms of worship and indeed places of worship flowing from understandable demographic changes in the nature of the congregation of the original church.

[5] It is unnecessary for me to be any more specific about the background in this judgment. Suffice to say that a draft deed of trust has been circulated. Various improvements have been suggested by the Attorney-General in his report. Those improvements have been accepted without demur by all counsel. Additionally this afternoon some further brief amendments have been suggested, largely in the nature of tidying matters up. To place the matter beyond doubt I list what those amendments are:

(a)In clause 3 references to “Trust” are to be replaced by “trust”.

(b)In clause 5(c), line 2, the word “trust” is to be replaced by “trustees”.

(c)In clause 6(d), the words “a Professional” are to be replaced by the words “an independent Professional trustee”.

(d)Clause 6(g) is to be deleted.

(e)In clause 6(i) the words at the start of the second line “6(e)” are to be replaced by “6(f)”, and the words “and removal” under clause 6(f) deleted.

(f)In clause 11(c), second line, the word “Christian” is to be inserted before “charitable purpose”.

[6] The scheme, as I have indicated, has been publicly advertised. No other counsel have appeared today to raise any objection to it.

[7] I am satisfied, as indeed was the Attorney-General, that the original charitable purpose of the trust has been preserved and that the new deed is necessary to give effect to the trust’s charitable purpose in the position in which it now finds itself. The new deed, as amended, is thus approved pursuant to this Court’s powers under the Act.

[8]  I also record, to assist any future generations should it be necessary so to do, that the provisions in clause 11, on winding up, which would first benefit the New Zealand branch of the Oral Roberts Evangelistic Movement, if such still exists, and secondly any other Christian purpose, should the Oral Roberts interests no longer exist in New Zealand, are appropriate.

Costs

[9] That leaves the issue of costs. The modest sum of $750 plus disbursements (including travelling costs) is sought by the Attorney-General. That is approved.

[10] Two invoices submitted by Mr Bogiatto, who has acted throughout for the congregation, in the sums of $22,349.31 and $16,330 seem to me in the circumstances  to  be  reasonable.    Co-ordinating  the  congregation  and  obtaining

obstructions from them would have been a time consuming task. Those sums are also approved.

[11]     There is no issue relating to the reasonable costs of the sole trustee.

[12] Having heard counsel I am further satisfied it is appropriate for costs to be awarded in favour of Mr Chamley whom, and I have no doubt about this, as counsel before me has been extremely helpful in matters of detail relating to the new deed of trust. Because Mr Chamley has not yet had the opportunity of quantifying his costs (which I expect will be in the region of $7,500), I give him leave to file within three working days a brief memorandum quantifying his costs for this Court’s approval.

[13]     All approved costs are to be paid from the Trust’s funds.

Other matters

[14] Other matters arising out of Mr Armstrong’s helpful memorandum which need attention are the approval of two trustees who are to be appointed pursuant to Mr MacDonald’s power under the new deed. Those two trustees have been specified as first, Mr Kevin Mills, an accountant practising in Auckland, whom I designate as being the independent professional trustee for the purposes of the new deed of trust. The second is Mr Wiremu Tumai, who has sworn an affidavit and is prepared to be appointed if so approved.

[15] What Mr Callum MacDonald has in mind is within  approximately  20 working days, using his power of appointment to appoint those two gentlemen in his stead. Mr Callum MacDonald, for his part, will resign having exercised the power of appointment which the deed confers on him.

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Priestley J