IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2014-454-73 [2014] NZHC 2324
UNDER sections 33 and 34 of the Charitable Trusts
Act 1957
IN THE MATTER OF
the NEIL BARR FARM FORESTRY FOUNDATION a charitable trust established by deed dated 18 March 1985
BETWEEN
CHARLES HOWARD WILLIAMSON, DOUGAL MALCOLM McINTOSH, NICHOLAS JOHN LEDGARD, MURRAY WILLIAM DOWNS, PATRICK GEORGE MILNE and IAN FREDERICK JACKSON
Applicants
Hearing: 23 September 2014 Counsel:
C J Kelly for applicants
Judgment:
24 September 2014
RESERVED JUDGMENT OF DOBSON J
[1] This is an application brought under s 33 of the Charitable Trusts Act 1957 (the Act) seeking orders that approve amendments to the terms of the Neil Barr Farm Forestry Foundation (the Foundation), a charitable trust originally established in March 1985. Sensibly, the application is brought in respect of a new trust deed that contains a range of different provisions, and a re-ordering and re-expression of the content.
[2] The charitable purposes of the Foundation include promoting forestry as a way of life within New Zealand, the acquisition of scientific and technical
knowledge relating to the growth and management of trees, the dissemination of
IN RE NEIL BARR FARM FOESTRY FOUNDATION [2014] NZHC 2324 [24 September 2014]
forestry knowledge and the acquisition and dissemination of scientific and technical information relating to the processing of tree material.
[3] The Foundation was originally established as the New Zealand Farm Forestry Foundation. After the death of Mr Neil Barr, who had been the founder of the New Zealand Farm Forestry Association in 1957, and who was the settlor of the Foundation, its name was changed to honour him in 1996 to the Neil Barr Farm Forestry Foundation.
[4] The proposed amendments have been advertised as required, and no opposition or interest in the proposal has been notified.
[5] The new trust deed and the context in which approval is sought for it has been referred to Crown Law for consideration on behalf of the Attorney-General as required by s 35 of the Act. The Deputy Solicitor-General has filed a report on behalf of the Attorney-General considering the scope of each of the proposed amendments, and reporting that she is satisfied that the scheme is a proper one and should carry out the desired purpose or proposal.
[6] The scope of the changes that would result from adoption of the new trust deed were accurately considered in the report under the following headings:
· appointment of trustees;
· number of trustees and tenure;
· removal of trustees;
· trustee decision-making;
· membership of a foundation;
· changes to investment provisions;
· variation of administrative provisions.
[7] The only changes that caused me any potential concern were those authorising further amendments to the deed in respect of administrative provisions, without referring those changes back to the Court. There is a conceptual prospect that a series of amendments treated, within their own terms as “administrative”, could, over a period of years, change the focus of the Foundation in a way that ought to be subject to supervision by the Court.
[8] I discussed this aspect of the new provisions with Mr Kelly. He indicated that in his experience such provisions are now relatively common in deeds for charitable trusts. He advised that there is adequate protection against any unintended, or even intended, transformation of the charitable purposes, by virtue of the requirement that such amendments be limited to those that are administrative in nature, and the requirement that such changes be supported unanimously by all trustees.
[9] Accordingly, on reflection I am persuaded of the appropriateness of those provisions.
[10] I am therefore satisfied that both individually and cumulatively the changes that would be effected in the new trust deed are appropriate to facilitate the administration of the trust.
[11] I have accordingly made the orders sought in the draft submitted with the original application.
Dobson J
Solicitors:
Greg Kelly Law Limited, Wellington for applicants
- AGLC
- Re Neil Barr Farm Forestry Foundation [2014] NZHC 2324
- Case
- [2014] NZHC 2324
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the proposed amendments to the trust deed were appropriate and facilitated the administration of the trust. Specifically, the court had to consider if the changes were consistent with the charitable purposes of the foundation and if the new provisions would ensure the trust's focus remained unchanged over time. The court also needed to assess whether the proposed changes, particularly those that allowed for further amendments to the deed without court supervision, were acceptable.
The court found that the proposed amendments were appropriate for facilitating the administration of the trust. While the court initially expressed some concern about the provisions that allowed for further amendments to the deed without court supervision, it was satisfied that these provisions included safeguards. The applicants argued that such provisions were common in charitable trust deeds and that the requirement for unanimous trustee support for administrative changes provided adequate protection against any unintended transformation of the charitable purposes. The court was persuaded by this argument and concluded that the new trust deed changes were appropriate.
In light of the above, the court made the orders sought in the draft submitted with the original application, approving the amendments to the Neil Barr Farm Forestry Foundation's trust deed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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