Re Tuhoe Charitable Trust Board - [2012] NZHC 1952

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2012-463-000212 [2012] NZHC 1952

IN THE MATTER OF The Charitable Trusts Act 1957

AND

IN THE MATTER OF an application by the TUHOE CHARITABLE TRUST BOARD, the TUHOE FISHERIES CHARITABLE TRUST BOARD and the TUHOE- WAIKAREMOANA MAORI TRUST BOARD for orders approving amalgamation of three charitable trusts administered by the applicants

Hearing: 4 July 2012

Counsel: D McLay for First and Second Applicants
D McLay and C Bidois for Third Applicant
P Gunn for Solicitor-General
B Lyall for V Winitana

Judgment: 14 August 2012

INTERIM JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 14 August 2012 at 11:00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

D McLay, Barrister, Wellington
C Bidois, East Brewster Limited, Rotorua
P Gunn, Crown Law, Wellington
B Lyall, Kathy Ertel, Wellington

RE TUHOE CHARITABLE TRUST BOARD, TUHOE FISHERIES CHARITABLE TRUST BOARD AND TUHOE-WAIKAREMOANA MAORI TRUST BOARD HC ROT CIV 2012-463-000212 [14 August 2012]

Introduction

[1] The trustees of three trusts associated with Ngai Tuhoe, which are administered by the Tuhoe Charitable Trust Board, the Tuhoe Fisheries Charitable Trust Board and the Tuhoe-Waikaremoana Maori Trust Board, apply to vary the purposes and the mode of administration of those trusts. Basically, the applicants are seeking Court approval to amalgamate the three separate trusts into one trust. All three trusts have broadly similar objects and operate for the benefit of Ngai Tuhoe.

[2] Extensive affidavits have been sworn and filed in support of the application by the Chair of the Tuhoe Charitable Trust, Mr Tamati Kruger; the Chair of the Tuhoe Fisheries Charitable Trust, Mr Matthew Te Pou, and the Chair of the Tuhoe- Waikaremoana Trust Board, Mr Aubrey Temara.

[3] Ngai Tuhoe wishes to combine its asset management structures into a single post-settlement governance entity (or as near to a single entity as possible). As part of this process Tuhoe wishes to amalgamate those entities that carry out charitable activities for the benefit of Tuhoe into one charitable trust. The trustees are also concerned about the administrative difficulties involved in operating three separate trusts, particularly in relation to compliance costs under the Charities Act 2005, as well as making investment and distribution decisions that benefit the whole iwi.

[4] The application was first called on 4 July 2012. The applicants at this stage seek only interim orders because they recognise that there are a number of steps that need to be taken before final approval can be sought from the Court. In effect, they now seek approval to start the process. If the Court’s approval to start the process is obtained, the applicants intend to call a special general meeting at Tataiahape Marae, Waimana on 10 November 2012 to ask for the approval of Ngai Tuhoe to the proposed amalgamation. A vote will be held on a special resolution which requires a
75% majority. There will therefore be the opportunity for further consultation, discussion and debate with iwi…

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 Re Tuhoe Charitable Trust Board

Details

AGLC: Re Tuhoe Charitable Trust Board [2012] NZHC 1952
Case: [2012] NZHC 1952
Decision Date: 14 August 2012

CaseChat Overview and Summary

The Tuhoe Charitable Trust Board, the Tuhoe Fisheries Charitable Trust Board and the Tuhoe-Waikariremoana Maori Trust Board applied to the High Court for orders approving the amalgamation of three charitable trusts. The Court found that the continuation of the three separate trusts was inexpedient because of the duplication of administration and compliance costs, and the current inability to align investment strategies, pool resources and make joint distribution decisions. The Court found that the objects of the three individual trusts were identical or nearly identical, meaning that no substantial change to those objects would be effected under the scheme, and each individual trust was essentially for the benefit of Ngai Tuhoe, which would not change under the scheme. The Court found that the purposes of the three existing trusts were charitable, and that the substituted arrangements under the proposed amalgamation were also charitable. The Court found that the proposed changes appeared to accord as closely as was reasonably possible in the circumstances to the terms of the original trusts, and that the proposed amalgamation was appropriate and would serve the interests of the intended beneficiaries and the public. The Court approved the commencement of the process for the approval of the charitable scheme, and the holding of a meeting to consider passing a resolution approving the scheme. The Court also ordered that the schedule to the Declaration of Trust dated 12 March 1982 and made under section 24B of the Maori Trust Boards Act 1955 be rectified by deleting clause 8 in its entirety.

Orders