Note Great Christchurch Buildings Trust v Church Property Trustees

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NOTE 5

Great Christchurch Buildings Trust v Church Property Trustees

Supreme Court of New Zealand SC83/2013; [2013] NZSC 132 10

2 December 2013

McGrath, Glazebrook and Arnold JJ

Judicial review – Jurisdiction – Whether statutory trust had power to make decision – Whether decision affected “rights” of any person – Judicature 15

Amendment Act 1972, s 4.

Judicial review – Statutory power of decision – Whether decision in accordance with terms of trust – Whether trust required Cathedral on the site – Whether decision to deconstruct Cathedral lawful – Whether decision complete – Use of insurance money – Whether relief to be granted to reconsider decision – “Trust 20 property” – “Cathedral” – Anglican (Diocese of Christchurch) Church Property Trust Act 2003, ss 4, 6, 7 and 19 – Trustee Act 1956, ss 15, 19 and 25.

Practice and procedure – Appeals to Supreme Court – Whether in interests of justice – Whether matter of general or public importance – Whether legal question of general or public importance – Whether underlying circumstances 25 or outcome of appeal of public importance and real doubt as to whether decisions of courts below correct – Supreme Court Act 2003, s 13(2)(a).

Application The Great Christchurch Buildings Trust applied for leave to appeal from the judgment of the Court of Appeal [2013] NZCA 331, [2013] 3

NZLR 597. 30

JUDGMENT OF THE COURT. [1] The Great Christchurch Buildings Trust seeks leave to appeal from the judgment of the Court of Appeal upholding the lawfulness of decisions by the Church Property Trustees (the Trustees) in relation to the Christchurch Cathedral.1 The decisions were taken following the

damage caused to the Cathedral by the February 2011 earthquake and the 35 subsequent earthquakes in June and December of that year. On 1 March 2012

the Trustees decided to deconstruct the Cathedral, after receiving notice from the Canterbury Earthquake Recovery Authority requiring works be undertaken to make the building safe. The applicant brought judicial review proceedings

and was successful in establishing that, if the Trustees demolished the existing 40

Cathedral, they were obliged to build a new Cathedral on the existing site. The

applicant, however, did not succeed on its main argument that the Trustees were obliged to reinstate the existing Cathedral.2 The Court of Appeal dismissed an appeal brought by the applicant against the High Court’s judgment.3

Great Christchurch Buildings Trust v Church Property Trustees [2013] NZCA 331, [2013]

[2] At the time they took their decision the Trustees had been advised that it would be possible to undertake works that retained in place most of the walls of the Cathedral, each of which had a degree of offset above sill level which is
2–3 metres above the ground. The walls would be held in place with the

insertion of interior steel shoring systems. Another option, deconstruction, involved bringing the building down to sill level. The applicant favoured the former but the Trustees decided to implement the latter of those two options. [3] The judgments of the Courts of Appeal and High Court generally turn on the terms of the trusts on which the Cathedral and its surrounding land are held
by the Trustees. The trusts are set out partly in legislation, and partly in the terms of the instruments, including Provincial Council Ordinances, relating to land set aside for building the Cathedral. The applicant says that trusts also arise from public subscriptions advanced for the building project.
[4] In this context the applicant wishes to bring an appeal to this Court to
address issues said to arise from alleged errors in the judgment of the Court of
Appeal as follows:

(a) Whether the public donation of funds for the Cathedral created obligations on the Trustees which have continuing force. The Court of Appeal decided that the trusts arising from these donations had been

spent on completion of the construction of the Cathedral.
(b) Whether the obligations of the Cathedral trusts permit the Trustees to demolish or deconstruct the Cathedral, creating a new cathedral on the site. This is said to turn on whether the original trust expressed to be in relation to “a” Cathedral became a trust in relation to “the”
particular Cathedral that was built.
(c) Whether the Trustees have an obligation to maintain and sustain the continuing existence of the present Christchurch Cathedral, and to repair the damage to the structure so that it can continue to function as the Cathedral.
(d) Whether the Trustees had power to demolish and deconstruct the Cathedral in face of the terms of the Anglican (Diocese of Christchurch) Church Property Trust Act 2003 (the Church Property Trust Act) and preceding legislation.

[5] This Court must not give leave to appeal unless it is satisfied that it is in

the interests of justice to do so. It is in the interests of justice to give leave where the proposed appeal raises a matter of general or public importance.4 In the context of the Supreme Court Act 2003, what is generally required for an appeal to this Court is that the issues to be brought before the Court, rather than
the underlying circumstances giving rise to the application for leave to appeal,
are of general or public importance.
[6] The first three issues the applicant wishes to have argued, which are set out in [4](a), (b) and (c) above, substantially involve the interpretation, in particular circumstances, of documents and Ordinances in relation to the Cathedral, rather than general legislative provisions of the Church Property

3 NZLR 597.
2      Great Christchurch Buildings Trust v Church Property Trustees [2012] NZHC 3045,
[2013] 2 NZLR 230.
3      Great Christchurch Buildings Trust v Church Property Trustees, above n 1.
4      Supreme Court Act 2003, s 13(2)(a).

Trust Act. In particular, that is the case in respect of the central question of whether, once the original building was completed, the trust that was in relation to a building became a trust in relation to the particular building.

We do not consider that cases cited to us carry the issues in this litigation

into an area of general legal principle. The Court of Appeal’s decision that the 5 terms of the Cathedral trusts only require the existence of “a” Cathedral is a decision on the meaning of particular instruments rather than on general principles. Likewise decisions in relation to the obligation to repair and maintain the Cathedral and whether it can give rise to an obligation to maintain

the particular Cathedral in its present form involve particular issues of 10 interpretation rather than legal issues.

The fourth proposed issue concerns the Court of Appeal’s decision that the Trustees had no obligation under the Church Property Trust Act to maintain “that” Cathedral. The Court did, however, recognise that the Trustees had an obligation to maintain and repair “a” Cathedral and affirmed the High Court’s 15 judgment that deconstruction could only take place if the Trustees were to build, in place of the damaged building, a new Cathedral. We are satisfied that

in the circumstances of this case no arguable legal question arises from this point.

We are accordingly satisfied that no legal question of general or public 20 importance arises from the application for leave to appeal. But it may also be

in the interests of justice to grant leave to appeal where the underlying circumstances are, or the outcome of the appeal is, of public importance and real doubts have been raised as to whether the decisions of the courts below are

correct. We acknowledge that the circumstances giving rise to the application 25 for leave to appeal are of course of great general importance to the citizens of Christchurch. That importance arises from the history, function and iconic nature of the Cathedral. However, in this case nothing that has been raised on behalf of the applicant reaches the threshold of showing that the decisions of

the courts below may be in error. 30

Accordingly leave to appeal is declined.
Orders
(A) The application for leave to appeal is dismissed.
(B) The applicant is to pay costs of $2,500 to the first respondent.

Result: Appeal dismissed. 35

In the Supreme Court of New Zealand, the Great Christchurch Buildings Trust sought leave to appeal against the decision of the Court of Appeal, which upheld the lawfulness of decisions made by the Church Property Trustees regarding the Christchurch Cathedral. The Trustees had decided to deconstruct the Cathedral following the damage caused by the 2011 earthquake and subsequent tremors. The Trust argued that the Trustees were obliged to rebuild the existing Cathedral and that the deconstruction decision was unlawful. The Court of Appeal had ruled that the Trustees were required to build a new Cathedral on the existing site but rejected the Trust's claim that the Trustees had to reinstate the existing Cathedral.

The central legal issues the court needed to address were whether the public donations for the Cathedral created ongoing obligations for the Trustees, whether the trusts permitted the Trustees to demolish the Cathedral and rebuild anew, whether the Trustees were obligated to maintain the existing Cathedral, and whether the Trustees had the authority to demolish the Cathedral under the relevant legislation. The court's reasoning focused on the interpretation of the specific trusts and legislation governing the Cathedral and its land. The Court of Appeal had determined that the trusts required only the existence of "a" Cathedral, not the specific one that was built, and that the Trustees had an obligation to maintain and repair "a" Cathedral, affirming that deconstruction could only occur if a new Cathedral was built in its place.

The Supreme Court concluded that the issues raised by the Trust did not involve general legal principles but rather the interpretation of specific documents and ordinances. The court found no arguable legal question of general or public importance arising from the Trust's appeal. Although the circumstances of the case were of great public importance due to the Cathedral's significance, the court was not persuaded that there were real doubts about the correctness of the decisions of the lower courts. Therefore, the Supreme Court declined to grant leave to appeal.

Orders were made dismissing the application for leave to appeal and requiring the Trust to pay costs of $2,500 to the Trustees. The result was that the appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established