Nelson Historic Theatre Trust Board - [2014] NZHC 987

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2013-442-317 [2014] NZHC 987

IN THE MATTER OF the Charitable Trust Act 1957

and

IN THE MATTER OF

an application by THE NELSON HISTORIC THEATRE TRUST BOARD Applicant

On the papers

Judgment:

13 May 2014

JUDGMENT OF MALLON J

Introduction

[1] The Nelson Historic Theatre Trust Board applies for the Court’s consent under s 21(1) of the Charitable Trusts Act 1957 to the transfer of the Nelson Theatre Royal to the Nelson City Council. The cost of recent restoration work, combined with a lower than anticipated income from theatre hire, has led to a situation where the Trust does not have enough income to further maintain the Theatre. It considers that the transfer of the Theatre to the Council is the best alternative because it will allow the continued fulfilment of the objects of the Trust and the ongoing protection of the Theatre.

[2] The Council, the Nelson Repertory Society Inc and the Attorney-General have been served with this application. The Council and the Society support it. The Deputy Solicitor-General, on behalf of the Attorney-General,1 reports that she is
satisfied that the proposed sale is proper and can be approved by this Court.

1 Pursuant to delegation under s 9C of the Constitution Act 1986.

An application by THE NELSON HISTORIC THEATRE TRUST BOARD [2014] NZHC 987 [13 May 2014]

Background

[3] The Theatre was built in 1878. It is the oldest purpose-built theatre in New Zealand, still being used for its original purpose. It is described as being a rare example of a nineteenth century theatre constructed from timber. It sits on land of around 885 square metres at 78 Rutherford Street, Nelson.2 Between 1878 and 1994 it appears to have been privately owned. In 1944 the Nelson Repertory Society Inc purchased the Theatre from its then owner, who was apparently proposing to turn it
into a joinery factory.

[4] The Theatre was run down in the 1960s and 1970s. Fundraising to restore it began in the late 1990s. The Nelson Historic Theatre Trust was established on 1
August 2001 by the Nelson Repertory Society and concerned members of the Nelson performing arts community. The Trust was incorporated as a Board under the Charitable Trusts Act 1957 on 23 August 2001. Subsequently it was also registered as a charity under the Charities Act 2005.

[5] The objects of the Trust under cl 3 of the Trust Deed (executed on 1 August

2001) are:

3.2To raise and administer funds for the restoration and refurbishment of the Theatre Royal, Rutherford Street, Nelson City, in a timely fashion and in accordance with such plans and specifications as may be adopted and referred to it by the Committee of Nelson Repertory Theatre Incorporated

3.3Following completion of the said restoration and refurbishment to undertake the preservation and maintenance of the Theatre Royal to a standard commensurate with its status as a heritage building and as a living working theatre.

[6] The Trust has no…

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: [2014] NZHC 987
Decision Date: 13 May 2014

CaseChat Overview and Summary

The Nelson Historic Theatre Trust Board applied to the High Court for its consent to the transfer of the Nelson Theatre Royal to the Nelson City Council. The Trust, which owns the Theatre, is struggling financially and believes that transferring ownership to the Council is the best way to ensure the Theatre's future viability and the continued fulfilment of the Trust's objects. The Court was required to determine whether the transfer required its consent under the Charitable Trusts Act 1957 and whether, if so, the transfer should be approved. The Court found that the Theatre was the "essence of the trust" and that its disposal was properly subject to Court scrutiny. The Court also found that the proposed sale to the Council was the best way to honour the spirit and intention of the Trust given the Trust's financial difficulties and the lack of alternative funding options. The Court concluded that the proposed sale was proper and granted the Trust's application for consent. The Court ordered that the Trust could transfer the Theatre to the Council, subject to certain conditions including the Council taking on the Trust's outstanding debt of $2.1 million. The Court also ordered that the Theatre building would continue to be protected as a heritage building and that it would be added to the Council's list of strategic assets.

Orders