Samoan Assembly of God (Hamilton) Trust Board

[2016] NZHC 1649

IN THE HIGH COURT OF N EW ZEALAND HAMILTON REGISTRY

CIV-2016-419-000141 [2016] N ZHC 1649

UNDER	the Charitable Trusts Act 1957
IN THE MATTER OF	The Samoan Assembly of God (Hamilton) Trust Board

Hearing:	20 July 2016
Appearances:	O Woodroffe for the Trust Board
Judgment:	20 July 2016

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Woodroffe Lawyers , Auckland

Re Samoan Assembly of God (Hamilton) Trust Board [2016] NZHC 1649 [20 July 2016]

Introduction

[1]      This is an application under Parts III and V of the C haritable Trusts Act 1957 for approval of a scheme in respect of the Samoan Assembly of God (Hamilton) Trust Board.

Factual background

[2]      The Samoan Assembly of God Hamilton C hurch started on 1 October 19 80. A deed of trust was signed on 8 December 1981, pursuant to which the trustees applied for incorporation as a trust board under the name of The Samoan Assembly of God  (Hamilton)  Trust Board.    The original declaration of trust refers to  the beneficiaries as the  members of the Samoan Assembly  of God  (Hamilton)  who observe the articles of faith as set forth in the General Constitution of the Assemblies of God in New Zealand Incorporated.

[3]      There has subsequently been discord between the Assemblies of God in New Zealand Incorporated and the Samoan Assemblies of God in New Zealand Incorporated.   Following incorporation of the Samoan Assemblies of God in New Zealand Incorporated  in 2005, there was litigation between them.   It was finally agreed  that  the churches  under the  umbrella of the Assemblies of God  in  New Zealand Incorporated were permitted to vote to agree to withdraw their membership of the Assemblies of God in New Zealand Incorporated with a view to joining the Samoan Assemblies of God in New Zealand Incorporated.

[4]      The Samoan Assembly of God Hamilton C hurch held a vote in 2006 with the result that the church withdrew its membership from the Assemblies of God in New Zealand  Incorporated.     The  Samoan  Assembly  of  God  Hamilton  C hurch  has maintained  its  membership  in  the Samoan Assemblies of God  in  New  Zealand Incorporated since then.

[5]      In 2009 it was also agreed between the Assemblies of God in New Zealand Incorporated and the Samoan Assemblies of God in New Zealand Incorporated that the Assemblies of God in New Zealand Incorporated would support any amendments

to  trust deeds which have reference to  the Assemblies of God  in New  Zealand

Incorporated.

[6]      The trustees therefore seek the following proposed variations:

(a)      Amendment of the Trust’s purpose to substitute t he Assemblies of God  in New Zealand Incorporated  with the Samoan Assemblies of God in New Zealand Incorporated;

(b)      Introduction of an amendment provision to  enable the  trustees to make   future   changes   to   the   trust   deed   to    meet   changing circumstances; and

(c)      An amendment to  the winding-up  clause to  substitute the General Council of Assemblies of God  in  New  Zealand  with the Samoan Assemblies of God in New Zealand Incorporated.

[7]      Because  of  the  break   from  the  Assemblies  of  God   in  New  Zealand Incorporated,  the original trust  has become  impossible  to  carry  out.    Although amendment is sought to the original purpose of the trust, it is the same congregation who will be benefiting from the trust, namely the Samoan Assembly of God (Hamilton).   Although it is acknowledged that the statement of faith set out in the Constitution of the Samoan Assemblies of God in New Zealand Incorporated and the statement of fundamental truths set out in the Constitution of the Assemblies of God in New Zealand Incorporated are not identical, they are both premised on the philosophy and statements of faith of the Assemblies of God movement worldwide and, therefore, the underlying religious doctrines are the same.

[8]      The Court has received a report from the Solicitor-General, on behalf of the Attorney-General, who has considered the application.  The Solicitor-General notes that the threshold to be established under s 33 of the Act is only that the variations proposed would facilitate the carrying out of the Trust.   The Solicitor-General also agrees with the proposed changes to the deed of trust to enable the Trust Board to amend by deed the administrative provisions of the deed.   This would enable the

Board to avoid the time and cost of further applications to the Court under s 33.  The Solicitor-Genera l sees no objection to the proposed changes which would properly reflect the Church’s historical association with the Samoan Assemblies of God  in New Zealand.

[9]      In  conclusion,  the  Solicitor-General  is  of  the  view  that  the  proposed amendments would be an improvement on the original trust deed and likely facilitate the trust and  its trustees in the administration of the property in carrying out the Trust’s charitable purposes as required by s 33.

[10]     The application is therefore granted.   The proposed scheme is cha ritable as the purpose of the Trust continues to be the advancement of religion.  The proposed substituted purposes accords as nearly as possible with the original one.  There will be orders in terms of the draft filed with the Court.

[11]     The applicant is entitled to costs against the trust fund  for the purpose of making this application.   Costs of $750 are also  to be awarded  to the Attorney- General.

……………………………….

Woolford J