Re Brooks

[2015] NZHC 950

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-89 [2015] NZHC 950

UNDER

the Charitable Trusts Act 1957

IN THE MATTER

of an application to alter the mode of administration of trust in respect of the Canterbury Branch New Zealand Federation of University Women Trust

BETWEEN

JUDITH DIANE BROOKS, BERNADETTE FRANCES DEVONPORT, DEBORAH MARY ERRINGTON, NGAIO WENDY FRANCIS, ELLEN LORRAINE MCCRAE, JEAN ELLEN SHARFE AND HILARY JANE STUBBS AT TRUSTEES OF THE CANTERBURY BRANCH

NEW ZEALAND FEDERATION OF UNIVERSITY WOMEN TRUST Applicants

Hearing:	6 May 2015
Appearances:	J Bell-Connell for Applicants
Judgment:	7 May 2015

JUDGMENT OF MANDER J

[1]      The applicant trust was established by the settlor, the Canterbury Branch New

Zealand Federation of University Women Incorporated, on 10 September 1991.1

[2]      The trust is a charitable trust registered under the Charities Act 2005.   It carries out charitable work, including the advancement of education by encouraging and  funding  educational  research,  and  supporting  projects  of  relevance  to  the

promotion and advancement of education.  It accumulates and applies funds for these

1      On 5 February 2002, the settler changed its name to the Canterbury Branch of the New Zealand

Federation of Graduate Women Incorporated.

RE CANTERBURY BRANCH NEW ZEALAND FEDERATION OF UNIVERSITY WOMEN TRUST [2015] NZHC 950 [7 May 2015]

purposes and promotes and supports other organisations undertaking charitable activities  within  New Zealand.     The  trust  also  acquires  and  makes  available academic dress or regalia for loan, sale or hire.

[3]      The trust applies for approval of a scheme amending powers of the trustees and altering the mode of administration of the trust.  The trust’s position is that the present  trust  deed  does  not  adequately  address  several  administrative  and  other issues, including monitoring of the trust, annual general meetings, transparency in the governance of the trust, bank accounts, execution of documents, incorporation under Part II of the Charitable Trusts Act 1957 (the Act), accounting, tax returns, declarations of interest by trustees, pecuniary interests of the trust deed, the trustees power to amend the trust deed, and the law governing the trust.

[4]      Apart from the need to modernise the trust deed, there have been material changes in the trust’s circumstances, which require the deed to be varied.  A significant expansion in the trust’s regalia hire service has also been a catalyst for review. As a result of that expansion, it now has considerable assets.

[5]      The proposed amendments contained in the amending scheme to vary the trust  deed  include  changes  to  its  name,  governance,  proceedings  of  trustees meetings, limitation of powers, remuneration to trustees, the trust deed’s reference to the “Study Loan Fund”, and the trust deed’s “wind up clause”.   It is submitted on behalf of the trust that these variations and additions will facilitate the administration of the trust’s property and the carrying out of the trust.

[6]      The extent of the modifications and amendments contained in the proposed scheme effectively requires the substitution of the current trust deed with a comprehensively modified trust deed, a copy of which was attached to the trust’s application for approval.

[7]      The Court has received a report from the Attorney-General in accordance with his functions under ss 35 and  56 of the Act.   Ms Virginia Hardy,  Deputy Solicitor-General, on behalf of the Attorney-General advises that she has considered in draft the trust’s originating application for approval of the scheme, memorandum

of counsel for the trust, the scheme amending the powers of trustees and altering the mode of administration of the applicant trust, and the affidavit of Ms Ellen McCrae, trustee and chairperson of the trust, in support of the application for approval of the scheme under the Act.

[8]      Ms Hardy reports that she is satisfied that the scheme is a proper one which satisfies the requirements of s 56(1)(a) of the Act, and can be approved by the Court under Part III of the Act.   She confirms that every proposed purpose is charitable within the meaning of that part of the Act, can be carried out, and that the requirements of that part of the Act have been complied with to date.  Ms Hardy, in summary,   concludes   that   the   proposed   amendments   would   facilitate   the administration of the trust and that changes made to the wording of the trust’s objects do not, in substance, alter those objects, but amount to minor administrative changes which may be effected under s 33 of the Act.

[9]      A more substantive change to the trust deed is the proposed variation to allow the trustees to amend the deed.  The purpose of this variation is to allow the trustees to make minor administrative changes and would avoid the costs of applying under s 33  for  minor  adminstrative  matters  that  may  be  required  in  the  future.    The proposed clause does not allow the trustees to alter the objectives of the trust deed. The Attorney-General agrees that this proposed power to amend would facilitate the administration of the trust, and is satisfied that there are important  limits, both substantive and procedural on the proposed power.

[10]   I am satisfied that the new scheme will facilitate the carrying out and administration  of  the  trust.    I  have  considered  the  material  placed  before  me, including  the  report  of  the Attorney-General,  memorandum  of  counsel,  and  the affidavit of Ms McCrae.  Having regard to the amplification of the term “facilitate”

provided by Paterson J in Re Melanesian Mission Trust Board,2  meaning “made

easier, promoted, or helped forward”, I am satisfied that the variations and additions

contained in the proposed scheme would have that effect and would facilitate the

administration of the trust’s property and the carrying out of the trust.  Further, that

2      Unreported, Re Melanesian Mission Trust Board M1140/98 HC Auckland, 24 September 1998, Paterson J.

such amendments do not affect the integrity or charitable purpose of the original objects of the trust.

[11]     I am satisfied that the proposed scheme complies with s 56 of the Act.  The scheme is a proper one which carries out its objectives.   It is not contrary to law, public policy or good morals, and that the proposed purpose of the trust is charitable and can be carried out.

[12]     The application for approval of the scheme to vary the trust deed has been advertised in both the New Zealand Gazette, and subsequently on three occasions in The  Press  newspaper,  as  required  by  s 36  of  the  Charitable  Trusts  Act.    No opposition to the scheme to vary the trust deed has been notified.

[13]     Accordingly, there will be an order granting approval of the scheme, a copy of which is attached to the application of 23 February 2015, marked “A”.

Solicitors:

Wynn Williams, Christchurch