Re Neil Barr Farm Forestry Foundation

[2014] NZHC 2324

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