Otago Museum Trust Board - [2023] NZHC 1427

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-24

[2023] NZHC 1427

UNDER The Trusts Act 2019

UNDER

Part 19 of the High Court Rules 2016

IN THE MATTER OF

An application for an order approving payment of remuneration to trustee

BETWEEN

THE OTAGO MUSEUM TRUST BOARD

as Trustee of the Otago Museum, a body corporate located in Dunedin and established by the Otago Museum Trust Board Act 1955 and continued by the Otago Museum Trust Board Act 1996

Applicant

Hearing: 29 May 2023

Appearances:

J W Cowan for Applicant

Judgment:

9 June 2023

JUDGMENT OF CULL J

[1] The applicant, the Otago Museum Trust Board (the Board) is seeking an order approving payment of reasonable remuneration to the Chairperson of the Trust Board. The Board makes two applications: for permission to commence proceedings by way of originating application and for orders approving payment of remuneration to the Chair of the Board.

Otago Museum Trust Board [2023] NZHC 1427, 9 June 2023

The originating application

[2] The Board applies without notice, under r 19.5 of the High Court Rules for permission to commence this proceeding by originating application. The Board submits that it is in the interests of justice to do so, to secure the just, speedy and inexpensive determination of the proceeding.

[3] The Board records that r 27.37 of the High Court Rules 2016 applies to applications under s 139 of the Trusts Act. It acknowledges that it has not complied with r 27.37(2) by making an application rather than commencing the proceeding by a statement of claim in accordance with Part 5 of the High Court Rules. The Board submits that compliance with the rule appears unnecessary, as there is no defendant or interested party who may seek to oppose or defend the application. Associate Judge Paulson was satisfied that no directions as to service were required.

[4] Under r 27.45, I am prepared to dispense with the observance of r 27.37(2) and Part 5 on the basis that the procedure followed by the Board is consistent with the Part 9 procedures in High Court Rules.

[5] The application for the approval of remuneration is made under s 139 of the Trusts Act, and alternatively the High Court’s inherent jurisdiction. There is no procedure prescribed for this kind of application under the inherent jurisdiction of this Court.

[6] The Board’s application is administrative in nature. It involves a narrow issue of whether remuneration for the chairperson in the modest sum of $10,000 per annum is just and reasonable. There is no opposition to the application, and the Board members unanimously approve the payment and the making of this application. There are no factual issues in dispute, no parties to be served with the application, no need for discovery, and no interlocutory applications could arise.

[7] In these circumstances, I grant permission to commence the proceeding by way of originating application under r 19.5(1) as it is in the…

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.

Continue reading Otago Museum Trust Board

Details

AGLC: Otago Museum Trust Board [2023] NZHC 1427
Case: [2023] NZHC 1427
Decision Date: 9 June 2023

CaseChat Overview and Summary

The Otago Museum Trust Board, a body established by statute, sought approval from the High Court for the payment of remuneration to its Chairperson. The Board applied for permission to initiate proceedings through an originating application, arguing that it was in the interests of justice to proceed in this manner. The Board acknowledged that it had not complied with a specific rule that generally requires proceedings to be commenced by a statement of claim, but argued that such compliance was unnecessary as there were no parties to oppose the application. The court granted the Board's application to proceed by way of an originating application, finding that the procedure followed was consistent with the relevant court rules.

The court then considered the merits of the application for approval of remuneration. The Board proposed to pay the Chairperson $10,000 per annum, a sum that the Board deemed reasonable given the Chairperson's duties and the complexity of managing the Otago Museum. The court noted that the payment was modest considering the responsibilities of the Chairperson, who must chair board meetings, participate in various committees, represent the Board in public, and ensure compliance with legal obligations. The court also noted that the Chairperson's role carries significant personal liability given the value of the trust property and its revenue. The court was satisfied that the proposed payment was just and reasonable and approved the payment both prospectively and retrospectively, from June 2019.

In conclusion, the court granted the Otago Museum Trust Board's application for permission to commence proceedings by way of an originating application and also approved the payment of $10,000 per annum (plus GST, if any) to the Chairperson, both prospectively and retrospectively from June 2019. The decision was based on the complexity and importance of the Chairperson's role, the modest nature of the proposed remuneration, and the unanimous support of the Board members for the payment.

Orders