PT Wells Recreation Reserve Trust HC Auckland CIV 2008-404-591

[2008] NZHC 2312

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-591

UNDER  The Trustee Act 1956

IN THE MATTER OF     the Point Wells Recreation Reserve Trust

AND

AN APPLICATION BY   GARRY GEORGE ATKINS ALMA MOOREEN CAMERON NOELINE CRANSTON NEVILLE HENRY FURSDON DEBRA EVELYN GREEN DAVID MILES HUDSON

LINDSAY LEIGH MCCLINTOCK Applicants

Hearing:         12 May 2008

Appearances: M V Robinson for the applicants

Present:          Ms A B Du Temple

Judgment:      12 May 2008

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:

Simpson Grierson, Private Bag 92518, Auckland (M V Robinson)

PT WELLS RECREATION RESERVE TRUST HC AK CIV 2008-404-591  12 May 2008

[1]      I intend to give a short judgment today.  The originating application under the

Trustee Act 1956 has been served on all interested parties.  It is not opposed.

[2]      The applicants, who  are currently trustees of the Point  Wells  Recreation Reserve, seek specific authority from this Court to dispose of the Point Wells reserve by transferring it to the Rodney District Council, to be dedicated by that territorial authority as a reserve under the Reserves Act 1977.  The transfer of the land to the Council is to be on the terms set out in a memorandum of understanding between the applicants and the Council dated 13 September 2007.

[3]      The  trust  property  in  question  is  essentially  common  land  used  for recreational purposes by inhabitants of the Point Wells area.  The beneficiaries of the Point Wells Recreation Reserve Trust are the land owners for the time being in the Point Wells subdivision.  The subdivision comprises approximately 121 lots.   The land includes a playground, a community hall and a small library, and a tennis court.

[4]      Orders for substituted service were made by Winkelmann J on 13 February

2008.  There has been compliance with those orders, as deposed in an affidavit of service dated 6 May 2008 by Mr N H Fursdon.

[5]      Mr Robinson informs me from the Bar that there have been approaches to him by another beneficiary.  In addition a land owner/beneficiary Ms Du Temple has appeared in Court today.   She did not oppose the application.   She has given me some helpful background information.  Clearly the issue of the reserve has been a contentious one in the Point Wells community for some time.  Ms Du Temple has also expressed to me certain reservations about whether previous meetings at which trustees were elected strictly complied with the empowering documents.

[6]      Be that as it may I am satisfied the application has been properly served and notified.  No formal objection has been flushed out.

[7]      It is unnecessary for me to set out the history of the Trust.  It was formed by a

Deed dated 1 April 1946.   The Point Wells community developed thereafter.   By

1960 the outward and visible form of residents’ community action was the Point

Wells Progressive Association.   That Association seems to have involved itself extensively, not only in the community, but also in the administration and development of the Recreation Reserve land.

[8]      The memorandum of understanding to which I have referred states in its preamble that both the trustees and the Rodney District Council agree in principle that the land should be transferred to the Council, to be dedicated as a reserve, subject to the Reserves Act 1977 and, of course, free from the obligations created by the 1946 Trust Deed.

[9]      Clause 4.1 expresses the trustees’ desire that, once dedicated as reserve, the property  should  be  classified  for  recreational  purposes.    This  would  require  a Council resolution under s 16(2A) of the Reserves Act.   The Council, out of an abundance of caution, was not prepared to fetter its discretion in that regard.

[10]     The application under the Trustee Act was necessary because the 1946 Deed does not contain any express power authorising the trustees to dispose of the land in this manner.   The difficulties which the trustees have encountered over the years have been largely financial.  The power of the trustees to levy beneficiaries/property owners is problematic.  A power to levy in the Deed seems to be limited to users.  A levy would inevitably raise issues as to how the burden of maintaining the reserve should be borne.

[11]     The 1946 Deed indicated that the trustees were to be a voluntary organisation for the purposes of the Physical Welfare and Recreation Act 1937.  That legislation obviously reflected Parliament’s policy at a time when community recreation and welfare was regarded as a legislative priority.   Counsel inform me that Act was repealed   in   1980.      Funding,   which   was   previously   available   from   central government, has dried up, thus aggravating the problems the trustees faced.

[12]     Like Winkelmann J I see sense in the application.   I am satisfied that the application is one which should be granted, the more so because it has attracted no opposition from the ranks of the beneficiaries and the Point Wells land owners.

[13]     I note that the Rodney District Council has been served with the proceeding.

[14]     Accordingly I make an order precisely in terms of the applicants’ originating application dated 4 February 2008.

[15]     That order, however, is to lie in Court until such time as the Rodney District Council files a memorandum acknowledging that it is prepared to have the land vested in it in terms of the memorandum of understanding dated 13 September 2007 and is further prepared to hold the land thus vested subject to the provisions of the Reserves Act 1977.

[16]     There are no costs issues here.  Given that there has been no opposition costs will lie where they fall.

………………………

Priestley J