Sime v Maungatapere Community Church (Inc)
[2017] NZHC 2192
•8 September 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2016-488-121 [2017] NZHC 2192
UNDER the Declaratory Judgments Act 1908 and
the Judicature Amendment Act 1972
IN THE MATTER
of the Maungatapere Community Church incorporated under the Charitable Trusts Act 1957
BETWEEN
A L SIME, G D SIME, R G DAY,
P M DAY, K N RUSSELL, A RUSSELL, T J BARFOOTE AND C J BARFOOTE Plaintiffs
AND
MAUNGATAPERE COMMUNITY CHURCH (INC)
First Defendant
R S JOHNSON Second Defendant
A W McGLADDERY Third Defendant
Hearing: 27 and 28 March 2017 Appearances:
R C Mark for the Plaintiffs
R S Pidgeon for the DefendantsJudgment:
8 September 2017
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 8 September 2017 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
Solicitors / Counsel:
Mr R Mark, Solicitor, Kerikeri
Mr R S Pidgeon
……………………………………
Mr S Henderson (defendants’ instructing solicitor), Henderson Reeves Connell Rishworth Lawyers
Ltd, Whangarei
SIME v MAUNGATAPERE COMMUNITY CHURCH (INC) [2017] NZHC 2192 [8 September 2017]
The claims
[1] The first defendant, the Maungatapere Community Church, is a church society founded in 1995 and incorporated under the Charitable Trusts Act 1957. The plaintiffs have brought proceedings challenging decisions of the members of the Church, and of the leadership body of the Church, to remove six of the plaintiffs as members and to remove one of the plaintiffs as an elder of the Church.
[2] The plaintiffs purportedly removed as members are Mr and Mrs Sime, Mr and Mrs Day, and Mr and Mrs Barfoote. The plaintiff purportedly removed as an elder of the Church is Mr Sime.
[3] Mr and Mrs Russell are also plaintiffs. They joined with the other plaintiffs in challenging the decision removing members on the basis that they had been removed as members along with the six other plaintiffs. However, the minutes of the meetings do not record any such decision and the defendants have not contended that Mr and Mrs Russell were removed as members.
[4] The second defendant, Mr Johnson, was joined as a defendant because the plaintiffs sought a declaration that Mr Johnson had been removed as pastor of the Church at another meeting. The plaintiffs no longer contend that Mr Johnson was validly removed as pastor, as noted further below.
[5] It appears that the third defendant, Mr McGladdery, should not have been joined as a defendant. There is a pleading that he took steps purportedly as secretary of the Church after he had resigned, but no relief is sought against Mr McGladdery in that regard, or in any other respect.
The issues
[6] There are two main issues.
[7] The primary issue is whether meetings on 27 July 2015 of the Church members and the Church leadership, which resulted in the decisions now being
challenged, were validly convened and conducted in accordance with the constitution of the Church. I will refer to those meetings as “the July meetings”.
[8] The other issue, which needs to be determined first, is whether the original constitution of the Church (the 1995 constitution) was validly replaced by a new constitution in 1998 (the 1998 constitution). This issue needs to be determined first in order to identify the rules applying to the July meetings.
[9] The pleadings and written submissions for the plaintiffs and defendants raised further issues. In a preliminary discussion with counsel, and in the course of oral submissions, these issues fell away because of concessions for one party or the other, or because of an acceptance that the issues were not relevant to the central issues in respect of the July meetings.
[10] For the record, to avoid uncertainty, and as background, I will briefly note the former issues:
(a) There was an issue initially raised by the plaintiffs as to whether statutory rules governing the Church are to be found in the Incorporated Societies Act 1908 or to the Charitable Trusts Act 1957. For the plaintiffs, Mr Mark accepted that, to the extent that it is necessary to have regard to legislation, the governing Act is the Charitable Trusts Act.
(b)There was a meeting on 26 March 2015. The defendants originally contended that this meeting resulted in valid decisions removing Mr Sime and Mr Day as elders. For the defendants, Mr Pidgeon accepted that it was unnecessary to determine these questions. From the defendants’ perspective the only meetings of consequence were the subsequent July meetings.
(c) There was another meeting on 16 June 2015. The plaintiffs originally contended that this meeting was validly convened and conducted and resulted in removal of Mr Johnson as pastor. Mr Mark advised that
the plaintiffs no longer sought to uphold the purported decision at this meeting. The significance of this was that it was therefore accepted, as expressly acknowledged by Mr Mark, that Mr Johnson was entitled to chair the July meetings of the members and of the leadership.
(d)The defendants had originally contended that Mr and Mrs Day’s membership had ceased some years before the July meetings. Mr Pidgeon advised that that contention was no longer being pursued by the defendants. The question whether Mr and Mrs Day continued as members was to be determined by assessment of the validity of the July meetings.
(e) There was an issue raised by the defendants as to whether Mr Day ceased to be an elder before 2015. In preliminary discussions with both counsel, Mr Pidgeon advised me that this was a live issue. However, as I understood Mr Pidgeon’s explanation at that point, this was because Mr Day had taken part in the meeting on 16 June 2015 resulting in the purported removal of Mr Johnson as pastor. Because the plaintiffs, through Mr Mark, subsequently advised that they were no longer contending that Mr Johnson had been removed as pastor, the question whether Mr Day had ceased to be an elder before 2015 is no longer a relevant issue. In a practical sense it also is not an issue because, for reasons I will come to, I am satisfied that Mr Day was validly removed as a member at the July meetings. The consequence of this is that Mr Day could no longer act as an elder if he had been an elder up to that point. I nevertheless record that I am satisfied, for the reasons advanced by Mr Pidgeon in his written submissions, that Mr Day had ceased acting as an elder in or about 1997.
(f) There were issues raised by the defendants, supported by evidence and lengthy submissions, on the justiciability of doctrinal arguments between the plaintiffs and other members of the Church. It is unnecessary to consider these issues, because I am satisfied that the
differences between the members on matters of doctrine are not relevant to the matters I have to decide.
(g)There was evidence for the plaintiffs that typed transcriptions of handwritten minutes of meetings of the membership and of the leadership were not consistent with the handwritten minutes. At the commencement of the hearing Mr Mark advised that these contentions were no longer being advanced. These concessions were without prejudice to the plaintiffs’ submissions that the binding constitution at the time of the July meeting was the original 1995 constitution and that there was no adequate record that the 1998 constitution had been adopted.
The counterclaims
[11] There is a counterclaim by the Church seeking a declaration that the plaintiffs Kerrian Russell and Glenda Sime have been replaced as signatories on the Church’s bank accounts by Gillian Leather and Allan McGladdery, pursuant to a resolution of members of the Church at the July meetings.
[12] There is a further counterclaim by the Church and the second defendant, Mr Johnson, for an order that property identified in the counterclaim, and said to be in the possession of Mr and Mrs Sime, be returned to the Church, by delivery to the solicitors for the Church, with an alternative claim for damages if any of the property has been destroyed or lost.
[13] Mr Mark accepted that, if the resolutions made at the July meetings are upheld, the declaration and order sought in these counterclaims will follow.
Conclusions in summary
[14] I am satisfied that the operative constitution is the 1998 constitution.
[15] The question whether the 1995 constitution was replaced must be considered having regard to the rules of the 1995 constitution. I am satisfied those rules were
complied with in respect of a unanimous decision of the members to adopt the 1998 constitution at a meeting on 19 October 1998. The processes in accordance with the rules are well documented. There was no requirement that the new constitution be registered to make it legally binding.
[16] The plaintiffs’ challenges to the decisions at the July meetings do not
succeed.
[17] The plaintiffs, through Mr Mark, accepted that proper notice of the July meetings was given and that there was power to remove individuals from membership. The 1998 constitution in any event makes provision for removal of members “by church discipline” (clause 7(E)). The 1998 constitution also provides, in clause 4(G), for “involuntary dismissal” of an elder.
[18] I am satisfied, contrary to the plaintiffs’ contentions, that those who voted in favour of the motions for removal at the members’ July meeting were members. The members’ decision was followed by valid decisions of the Church leadership for removal of the six plaintiffs as members and of Mr Sime as an elder.
[19] As a consequence of the decision in relation to the July meetings, the defendants are entitled to judgment on their counterclaims.
Which is the binding constitution?
Background and issues
[20] Clause 11 of the 1995 constitution makes provision for alternation of the constitution (referred to as “rule alterations”). The relevant provisions of article 11 are, in summary:
(a) The constitution can only be altered or rescinded at an annual general meeting or a special meeting called for that purpose.
(b) Certain specified rules cannot be altered if that “would cause the
Inland Revenue Department to withdraw whatever charitable
exemptions are currently enjoyed”. I am satisfied that the alternations in the 1998 constitution did not affect the Church’s charitable status. This provision does not require further consideration.
(c) A notice of motion to alter or rescind the constitution is required to be given to the Church’s secretary.
(d)At least 14 days notice is required to be given to each member of the meeting.
[21] There were two main contentions for the plaintiffs. The first was that there was no properly called meeting of members resulting in a resolution to adopt a draft of the 1998 constitution as the new constitution of the Church. The second was that, even if there was a valid decision by members to adopt the 1998 constitution, it was not put into legal effect because of a failure to comply with s 21 of the Incorporated Societies Act 1908.
[22] The defendants say that the 1998 constitution was adopted unanimously at a meeting of members of the Church on 19 October 1998 and that that meeting was properly convened. The defendants also contend that s 21 of the Incorporated Societies Act has no application.
[23] Having regard to the relevant provisions of article 11 of the 1995 constitution, and in light of the preceding discussion, four things need to be determined:
(a) Was notice of a proposed motion to change the constitution given to the secretary?
(b)Was 14 days notice given to members of the meeting for the proposed constitution change?
(c) Did the members at the meeting resolve to adopt a new constitution?
(d) Was it necessary to register the constitution under the Charitable
Trusts Act?
Notice to the secretary?
[24] There does not appear to be a formal notice in writing to the secretary of a proposed motion to change the constitution, but it is clear from the evidence that the secretary of the Church, with other members of the executive, had clear and effective notice in accordance with the requirement in article 11.
[25] A reasonably substantial number of contemporaneous documents were put in evidence in respect of steps taken to introduce a new constitution between March
1997 and the meeting of members in October 1998.
[26] There was a meeting of what is described in the minutes as “the Advisory Board” on 23 March 1997. The members present included the secretary, Marilyn Hall. The acting pastor of the Church, Hugh Grant, is recorded as advising the other board members “that the constitution needs some adjustment and perhaps this should also be brought up at the AGM.”
[27] The minutes of the annual general meeting held just over a month later, on
29 April 1997, record that a vote was taken and carried “about looking into changes to the constitution.” It appears that about this time an ad hoc body called the Constitution Review Committee was established for this purpose. There is evidence for the defendants on this from Richard Shenton. Mr Shenton, and his wife Carol, were members of the Church until 2006. Mr Shenton was a member of the Constitution Review Committee. His evidence relating to the development of a new constitution, and matters leading through to the meeting in October 1998, was unchallenged. He said he had a good memory of the events which he set out in considerable detail. I refer to some of his specific evidence below.
[28] Up to September 1998 there were three meetings of the Executive and two meetings of the members, including the 1998 annual general meeting, at which there was reference to progress in the development of a new constitution.
[29] The minutes of a meeting of the Executive on 16 September 1998 include the following:
Mike [Parsons] has draughted [sic] a revised proposal of the constituition [sic] and will present at next quarterly meeting for approval. Quarterly meeting Monday 19th October 1998.
Mr Parsons was the pastor. Mr Grant, referred to earlier as the acting pastor, took up the position in 1996 or early 1997 when Mr Parsons took sabbatical. Mr Parsons had returned by September 1998 and decided that the draft of the new constitution that had been completed to that point needed substantial revision. It is Mr Parson’s revision, expressly referred to at the 16 September meeting of the Executive, which was put to the quarterly meeting of members on 19 October 1998.
[30] The plaintiffs questioned whether there had been compliance with article 11 in respect of notice to the secretary. This minute is clear. One of the executive members present at the meeting on 16 September, just referred to, was Mrs Shenton. She was the acting secretary who took the minutes. The substantive purpose of the rule requiring notice to be given to the secretary was to ensure that proper notice was, in turn, given to members. What is important is the substance, not the form, and substance was achieved in abundance. I also note that two members of the Executive who attended that meeting were two of the plaintiffs, Mr Sime and Mr Russell.
Was there 14 days’ notice to members?
[31] The next question is whether at least 14 days notice of the proposed change was given to members. The most direct evidence on this, for the defendants, is from Mr Shenton. Mr Shenton said that in September 1998 the draft constitution “was circulated to all members by posting them a copy … under cover of a letter dated September 1998 signed by Mike Ruskin (pastor) and Sandy Sime (elder)”.
[32] The template for the September 1998 letter from Mr Ruskin and Mr Sime is in evidence. It is headed:
MAUNGATAPERE COMMUNITY CHURCH Constitution Revision September 1998
DEFINITION AND PURPOSE OF THIS CONSTITUTION
[33] The letter includes the following:
This document is submitted for your prayerful and thoughtful consideration. No change has been lightly considered.
…
It is vitally important for us as a church, if we are to glorify God and
accomplish his Purposes, that each member be in agreement with this. …
This document is not a higher authority than the Word of God. … As we grow in the Word, this document is therefore subject to amendment according to the provisions of article 11(a).
[34] Mr Ruskin’s name, as pastor, and Mr Sime’s name, as elder, are typed on the template of the letter. A typed notation at the bottom of the page records the letter itself is “Page 1 of 12” pages. The draft of the 1998 constitution that was put to the meeting on 19 October 1998 is 11 pages long. There is also an electronic notation at the bottom of the letter: “C/MyDocuments/mcc/constitution rewrite 98.doc”.
[35] Mr Shenton said that “the idea” was for church members to consider the draft constitution and come back to Mr Ruskin with any comments, but no comments were received.
[36] Mr Shenton said, in reference to the members’ meeting on 19 October 1998, that members’ meetings were always advertised at least two weeks in advance and that the purpose of the 19 October 1998 meeting was to discuss changing the constitution as well as to consider other business. He said that the need to give two weeks’ notice had been noted by Mr Grant in his report to the 1997 Annual General Meeting; the requirement of two weeks’ notice was well known to the members of the Constitutional Review Committee; and the committee made sure that it complied with the requirement.
[37] Mr Shenton’s evidence was unchallenged. I accept his evidence.
[38] I am satisfied that all members of the Church got at least 14 days notice of the meeting on 19 October 1998 and of the proposal to vote on the new constitution at the meeting.
Did the members resolve to adopt the new constitution?
[39] The next question is whether a majority of members voted to adopt the 1998 constitution.
[40] The meeting on 19 October 1998 was attended by 18 members. Six of the members present were six of the eight plaintiffs, Mr and Mrs Sime, Mr and Mrs Day and Mr and Mrs Russell.
[41] Mr and Mrs Shenton were also present. Mrs Shenton’s unchallenged evidence is that she took the minutes for this meeting, recording them initially in handwriting and then typing them. The typed version of the minutes is as follows:
Discussion of the constitution. Mike [Ruskin] stated that it reflects the “new testament church” and that none of the changes proposed affect our incorporation/charitable status. Mike moved “that we adopt the October version of the constitution”.
Richard [Shenton] outlined the differences between the existing constitution and that of the proposed. Mike again moved that the above motion be passed. Mike/Carol.
[42] The transcribed minutes do not record whether or not the motion was passed. The plaintiffs contended on this basis that it cannot be said that the 1998 constitution was adopted. That argument is disingenuous. The plaintiffs, as noted in the introduction to this judgment, had initially argued that reliance could not be placed on the transcription of the handwritten minutes. The handwritten minutes, taken by Mrs Shenton, expressly record that the motion was “passed unanimously”. Mrs Shenton explained in her evidence, also unchallenged, that when she wrote “minutes” (a clear reference to the typed transcript), her practice was to identify the mover and seconder, but not to record that the motion was carried if it was carried. She only recorded if the motion was not carried. In the context of a meeting of church members, with a small number of members, that is an understandable approach.
[43] There was evidence for the plaintiffs from Mr Ruskin, directed only to the question whether the 1998 constitution was adopted. He said, in a brief affidavit:
Although changes to the Church Constitution were considered and discussed in 1998 I do not recall the document being voted on, nor is there any mention of a vote in the Minutes provided.
[44] All of the evidence, on both sides, was provided in affidavits and there was no cross-examination. It is unclear what document Mr Ruskin was referring to in his reference to “the Minutes provided”. However, it is clear that the minutes I have referred to, handwritten by Mrs Shenton and then transcribed by her, are the accurate minutes for the meeting in question. The content of these minutes makes clear that Mr Ruskin’s recollection was faulty and that, if he was directed to the minutes prepared by Mrs Shenton, he misread them. The applicable minutes expressly record that the motion on the constitution was put by Mr Ruskin himself, that it was seconded by Mrs Shenton, and that it was carried unanimously. In addition, the minutes of the Annual General Meeting of the Church, on 5 May 1999, include a summary of a report from Mr Ruskin in which he recorded that a new constitution had been adopted. This can only be a reference to the adoption of the 1998 constitution.
[45] I am satisfied, for the reasons recorded to this point, that the proposed new constitution was adopted by the members of the Church at a properly convened meeting of members and with the meeting itself conducted as required by the 1995 constitution.
[46] For completeness, I also record that minutes of subsequent meetings contain references to the 1998 constitution as the operative constitution. These are minutes of meetings of members and minutes of what, under the 1998 constitution, is referred to as “the leadership”.
[47] Of some significance is a reference to the 1998 constitution by Mr Sime recorded in the minutes of the Annual General Meeting of the Church on 4 May
2006. The handwritten minutes are as follows:
MEMBERSHIP Sandy wished that all who attend our meetings on a regular basis should be recognised as being “members” as per ARTICLE 7: CHURCH MEMBERSHIP of our CONSTITUTION. All office bearers must be recognised members.
The reference is unmistakeably to the 1998 constitution, not to the 1995 constitution.
[48] Other Church members made unmistakeable references in documents to the
1998 constitution. For example, in June 2011 there was a letter from a member, Don Redfearn, to the new pastor, the second defendant Mr Johnson, and to Mr Sime, who was the Elder of the Church. Mr Redfearn raised for discussion the possibility of changing what he referred to as “our present constitution”. His references to the present constitution are clear references to the 1998 constitution.
Was it necessary to register the new constitution under the Charitable Trusts Act?
[49] Mr Redfearn was not in doubt that the 1998 constitution was the constitution in force. However, his suggestion that changes might be considered did lead to confusion. Minutes of a meeting of the leadership, referred to as a “board meeting” on 15 November 2011, include the following:
CONSTITUTION: - The authentic legal document has come to light. It does not contain the clauses and wording that were causing the contentions. Don Redfearn will be informed.
[50] This observation may have arisen because the 1998 constitution was not registered. This may also be the origin of the second of the main contentions for the plaintiffs; a contention that the 1998 constitution did not come into force, even if there was a valid vote in its favour, because of a failure to comply with s 21 of the Incorporated Societies Act 1908. As earlier recorded, that contention was initially advanced for the plaintiffs, but Mr Mark, in the preliminary discussions, acknowledged that the relevant legislation is the Charitable Trusts Act 1957.
[51] I am satisfied that the Incorporated Societies Act has no bearing on the validity of the 1998 constitution.
[52] There are registration requirements under s 23 of the Charitable Trusts Act
1957, but this provision is directed only to particular types of change to the rules.
Section 23 has no application. Registration of the 1998 constitution was not required to make it binding on the members. Registration would only have been required under s 23 if changes in the 1998 constitution affected the trusts on which property was held or was to be held.1
[53] The reference in the minutes for the meeting on 15 November 2011 to the “authentic legal document” is probably a reference to the 1995 constitution. However, this does not bear on the question I have already dealt with as to whether the 1998 constitution came into force as a consequence of a properly convened and conducted meeting of members in October 1998. The legal effect of that meeting could not be changed by an observation at a meeting of the leadership of the Church. In any event, the next record, in the substantial number of documents that was produced, referred again, clearly enough, to the 1998 constitution. This was for the purpose of discussing the length of term of deacons.
[54] The operative constitution, applicable to the July meetings in 2015, is the
1998 constitution.
The July meetings
The lead-up to the July meetings
[55] The July meetings arose out of differences between some of the plaintiffs and some other members of the Church relating to matters of doctrine in a lecture given by a visiting speaker, Dr Stephen Jones, at the Church premises, in July 2014. In February 2015 Mr Sime and Mr Barfoote requested that Dr Jones be permitted to deliver another lecture at the Church premises. The request was declined.
[56] These differences led to the meeting on 26 March 2015, originally relied on by the defendants, and the meeting on 16 June 2015, originally relied on by the plaintiffs.2 Although in this proceeding the plaintiffs no longer contended that Mr Johnson had validly been removed as pastor, some of the plaintiffs after the 16 June
meeting had nevertheless taken action against Mr Johnson. A trespass notice was
1 Bath v Singh [2012] NZAR 50 (HC) at [62]-[63].
2 See above at [10](b) and (c).
served on him on 27 June 2015. It was issued by a body described in the notice as the “Maungatapere Community Church Executive Standing Committee”. There was no such body provided for in the 1995 constitution or the 1998 constitution. The notice was signed by Mr and Mrs Day and Mr and Mrs Sime. In June 2015 neither Mrs Day nor Mrs Sime held positions in the Church recognised as executive or leadership positions under either of the constitutions. Mr Sime was an elder. Mr Day had been an elder. The 1995 constitution expressly provided that the pastor, the secretary and the treasurer were members of the executive, with provision for two other board members. As the signatories to the trespass notice knew, neither the pastor nor the secretary nor the treasurer had signed the notice.
[57] In spite of those deficiencies the trespass notice was relied on by Mr and Mrs Sime to request action by police. On 6 July 2015 Mr Johnson was visited by police and warned to stay off the Church’s property. On 9 July, on a complaint by Mr and Mrs Sime, police came to the Church to arrest Mr Johnson while he was at the weekly prayer meeting with other Church members. The police left without arresting Mr Johnson after Mr Johnson’s lawyer spoke to a police officer by telephone. Following a meeting of the plaintiffs, other than Mr and Mrs Barfoote, and described in minutes as a meeting of the “executive” of the Church, those plaintiffs had further discussions of steps that could be taken pursuant to the trespass notice. The police went to the Church two days later, on 16 July, and again on 23
July, when Mr Johnson was at the Church during the weekly prayer meeting, although on both occasions the police again left without making an arrest.
[58] Mr Johnson, and others opposed to the steps being taken by the plaintiffs, then resolved to have meetings of the Church membership and the Church leadership. The purpose of these meetings was to decide whether Mr and Mrs Sime, Mr and Mrs Day and Mr and Mrs Barfoote should be removed as members and whether Mr Sime should be removed as an elder. This resulted in the July meetings.
[59] Four matters need to be considered to decide whether or not the plaintiffs, other than Mr and Mrs Russell, were validly removed as members and whether Mr Sime was validly removed as an elder at the July meetings. These are dealt with under the following subheadings.
Notice of the July meetings
[60] Mr Mark advised that the plaintiffs accepted that proper notice of the meetings had been given. That was a responsible concession. I am satisfied that proper notice was given, and perhaps more than what was strictly required.
Power to remove members and elders
[61] The 1998 constitution, in article 7(E), makes express provision for removal of members “by Church discipline”. Mr Mark also accepted that there was power under the 1995 constitution to remove members, although that constitution does not have an express power to that effect.
[62] The 1998 constitution makes express provision for the removal of an elder. Article 4(G), under a heading “Involuntary Dismissal”, relevantly provides:
The resignation of an elder may be requested, providing the other elder/s agree, after holding a Church meeting to discuss the matter.
[63] I am satisfied that, although article 4(G) refers to a request for a resignation, the substance of the provision, read in context, is a power to dismiss which is ultimately exercisable by the elder or elders other than the elder whose dismissal is sought and provided this follows a Church meeting at which the proposal to dismiss the elder has been discussed.
[64] I also note that the 1995 constitution, on which the plaintiffs relied, made express and direct provision for “dismissal of elders … by the majority agreement of the Executive”. There was no argument for Mr Sime of an absence of power to dismiss him as an elder. His contentions are discussed below, after outlining what occurred at the July meetings.
The conduct and results of the July meetings
[65] The meetings on 27 July 2015 commenced with a meeting of members followed by a meeting of the leadership.
[66] The minutes of the meeting of members records that 42 members were present and that a number of non-members were in attendance. The names of members and non-members are recorded under separate headings. The meeting was chaired by Mr Johnson.
[67] There was an extended discussion of proposals for removal of the members and of Mr Sime as an elder. The combined meetings lasted a little over two and a half hours. The discussion was recorded and a complete transcript was produced in this proceeding. The transcript runs to 96 pages.
[68] The minutes record the motions for removal of Mr Sime as an elder and of the six plaintiffs as members, followed by a record of the vote on each proposal. Voting was on pre-printed voting forms. There were three scrutineers, two of whom were members and the third was the president of the Whangarei Regional Ministers Association. The minutes record votes in favour of the motions by substantial majorities of those who voted. The votes for removal of each member were either 21 or 22 in favour and either three or five against. The vote for removal of Mr Sime as an elder was 28 in favour and two against.
[69] Following the voting by members, that meeting adjourned for the leadership meeting.
[70] Those present at the leadership meeting were Mr Johnson, as pastor and an elder, Alan McGladdery, as secretary, and Helen Shannon and Rhonda Meads as the two deacons. Mr Sime, in the normal course, would have been entitled as an elder to attend the leadership meeting. The minutes record that he was about to attend this leadership meeting, but then refused to take part because Mrs Sime was not invited to attend because she was not a member of the leadership. I am satisfied that in those circumstances there was no irregularity in the leadership meeting arising from Mr Sime’s absence.
[71] A motion was put to the leadership that Mr Sime be dismissed as an elder, and having regard to the vote by the members. The leadership as a whole voted unanimously to remove Mr Sime as an elder. Mr Johnson also voted independently
to remove Mr Sime as an elder, that decision being taken in Mr Johnson’s capacity as
an elder.
[72] A motion was then put to the leadership as a whole on the question of removal of the six plaintiffs. The votes of the members were noted. The leadership voted unanimously to remove the six plaintiffs as members
The plaintiffs’ challenge to the votes
[73] The plaintiffs’ primary contention in relation to the decisions at the July meetings was that nine people at the meeting recorded as members, and whose names were entered in a members’ register on or after 3 March 2015, were not members. This contention is made, in particular, in Mr Sime’s affidavit.
[74] There is detailed evidence for the defendants, from Gillian Leather in particular, which disputes Mr Sime’s evidence in respect of the nine members, and also disputes Mr Sime’s evidence that there was a formal process for recognition of membership which has been carefully adhered to since 1995.
[75] I am satisfied that there was no irregularity in the voting. I accept the thrust of the defendants’ evidence to the essential effect that the nine in question were members,3 that the register was in any event not determinative, and that there was an accepted degree of informality in the acceptance of new members into the Church. Ms Leather’s evidence is in some relevant respects supported by evidence of Mr Sime’s own approach to the question of membership recorded in a minute some nine years earlier.4 And it is to be noted, as a matter of some significance in rejecting Mr Sime’s contention that the register was determinative except after 3 March 2015, that Mr and Mrs Day do not appear in the register at all.
[76] I am not persuaded that the nine people in the register challenged by the plaintiffs were not members. But this in any event would make no difference. If it is
assumed that the recorded votes in favour of the proposals included votes by all nine
3 And five others entered in the register after 3 March but not at the meeting.
4 See above at [47].
of the people in the register challenged by the plaintiffs, the votes still would have been substantially in favour of the proposals.
[77] The plaintiffs’ concerns about membership have no application to the leadership meeting. But Mr Sime, in his affidavit, questioned the entitlement of Mr Johnson, Ms Shannon and Ms Meads to attend the leadership meeting. He did not challenge Mr McGladdery’s entitlement to attend.
[78] The challenge to Mr Johnson’s attendance, as earlier recorded, was withdrawn at the beginning of the hearing of this proceeding. I am also satisfied that Ms Shannon and Ms Meads were entitled to be present as deacons, and notwithstanding some queries from Mr Sime in that regard. In particular, the 1998 constitution expressly provides that deacons are part of the leadership. It is also to be noted that the leadership took the cautious step of having a vote by the four members of the leadership who were present, and then the separate vote of Mr Johnson, in respect of the dismissal of Mr Sime as elder.
Result
[79] The plaintiffs’ claims are dismissed.
[80] There is a declaration as sought by the defendants to the following effect: In respect of the bank accounts, itemised at the end of this order, of the first defendant, Maungatapere Community Church Inc, the authorised signatories on those accounts are Gillian Leather and Alan McGladdery who have such authority in place of Kerrian Russell and Glenda Sime. The accounts are: (1) ANZ Bank account 06-
0493-0241362-00; (2) ANZ Bank account 06-0493-0241362-02; (3) ANZ Bank account 06-0493-0241362-03; (4) Taranaki Savings Bank account 15-3959-0638673-
30; (5) Taranaki Savings Bank account 15-3959-0638673-71.
[81] If any difficulty is encountered in giving effect to the preceding declaration, because of particular requirements of one or both of the banks, or otherwise, the defendants have leave to apply for further orders. However, it is to be anticipated that Kerrian Russell and Glenda Sime will cooperate with Gillian Leather and Alan
McGladdery to do whatever may be required by one or both of the banks to give proper effect to the declaration.
[82] There is an order in terms of the defendants’ second counterclaim: The plaintiffs Alexander Lindsey Sime and Glenda Dawn Sime are ordered to return the property itemised at paragraph 43 of the statement of defence and counterclaim dated
26 October 2016 to the first defendant Church by delivering that property to the first defendants’ solicitors Henderson Reeves Connell Rishworth Lawyers Ltd of 96 Bank Street, Whangarei.
[83] In respect of the preceding order, leave is reserved to the defendants to apply for further orders or directions if the order is not complied with or if any of the property has been destroyed or lost.
[84] There is an order that the plaintiffs pay the defendants’ costs of and incidental to this proceeding, should the defendants seek costs. If the defendants seek costs the parties should, in the first instance, endeavour to reach agreement on an appropriate sum. If agreement has not been reached by 29 September 2017 the defendant shall, by 13 October 2017, file a memorandum in support of their application for costs and any memorandum in response for the plaintiffs shall be filed and served by 27
October 2017.
Woodhouse J
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