Optionz Brain Rehabilitation & Recovery Trust (in liquidation)

[2019] NZHC 1992

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1442

[2019] NZHC 1992

IN THE MATTER

Of an application under Sections 27 of the Charitable Trusts Act 1957

AND

IN THE MATTER

of an Application by OPTIONZ BRAIN REHABILITATION & RECOVERY

TRUST (in liquidation)

On the papers:	at Auckland
Judgment:	15 August 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 15 August 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Application by Optionz Brain Rehabilitation & Recovery Trust (in liquidation) [2019] NZHC 1992 [15 August 2019]

[1]    The board and liquidator of Optionz Brain Rehabilitation & Recovery Trust (in liquidation) (“Optionz”) seek an order under s 27 of the Charitable Trusts Act 1957 that its surplus assets be disposed of to the Brain Injury Association (Auckland) Incorporated (“BIA”).  Following commencement, the proceedings were advertised at the direction of Gordon J. However, no other party has sought to be heard on the application and as a result I deal with the application on the papers.

Background

[2]    The BIA is a registered charity providing advocacy and support services for those with brain injuries. It began provision with rehabilitative services including the establishment of two Stewart Centres, which provided day rehabilitation services to the brain injured.

[3]    In order to avoid the appearance of a conflict of interest in the BIA undertaking rehabilitation services as well as its advocacy role, Optionz was established. Optionz, originally the Northern Stewart Centre Trust and a registered charity in its own right, was established by the BIA as the vehicle to provide rehabilitative services for brain injury victims and, in particular, to run the Stewart Centres established by the BIA. Between 2004 and 2018, Optionz expanded to ultimately run four Stewart Centres in Auckland, Hamilton and Tauranga respectively. The Stewart Centres were primarily funded by the Accident Compensation Corporation, but in 2018 the Corporation changed its approach to funding which meant that the Stewart Centres were no longer viable. The decision was made to close the Stewart Centres and to place Optionz in liquidation. It is anticipated that approximately $220,000 will be recovered following the completion of the liquidation and it is this amount that is now sought to be disposed of to the BIA.

Discussion

[4]In the circumstances:

(a)having read the application and supporting memorandum, as well as the comprehensive evidence filed in support on behalf of both the board at Optionz and the liquidators; and

(b)taking into account the purposes for which both the BIA and Optionz were established; and

(c)noting the lack of any opposition to the proposed course of action:

I agree with the submissions of Mr Wackrow made on behalf of Optionz, that the BIA is the obvious recipient of the surplus funds arising from the responsible liquidation of Optionz. The BIA is best placed to put those funds to good use for the original purposes of providing support to the brain injured in this region.

[5]As a result, I make the following order as sought:

That all surplus assets of Optionz Brain Rehabilitation & Recovery Trust (in liquidation) after recovery of all costs and liabilities, including the costs of this proceeding and the costs to the liquidator, be disposed of to the Brain Injury Association (Auckland) Limited.

Powell J