Singh v Singh
[2025] NZHC 364
•3 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-000752
[2025] NZHC 364
UNDER Part 19 of the High Court Rules 2016 IN THE MATTER
of the Calvary Indian Assembly of God
BETWEEN
SON SINGH
First Applicant
RAJESH JATTAN
Second Applicant
AND
CHERYL SINGH
First Respondent
CARROL PRASAD
Second Respondent
URMILA NARAYAN
Third Respondent
Hearing: 26 September 2024 Counsel:
P J Napier and J Y Leenoh for Applicants N W Woods and for Respondents
Judgment:
3 March 2025
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 3 March 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Solicitors:
K3 Legal, Auckland Rice Craig, Auckland
SINGH v SINGH [2025] NZHC 364 [3 March 2025]
[1] This application concerns the Calvary Indian Assembly of God (Calvary, sometimes referred to as the Assembly or the Church). Calvary has been established as a charitable trust (the Trust). The Trust has a board of trustees (the Trust Board), who hold assets on trust for Calvary under a trust deed. The assets include a church at Nikau Road, Ōtāhuhu for services for the members of Calvary. Under separate rules providing for Calvary to be an incorporated society, it also has a board, which is responsible for its management and organisation (the Church Board).
[2] In the period under consideration, all members of the Trust Board were also members of the Church Board and, with one exception, all members of the Church Board were also members of the Trust Board. Despite the slight mismatch in memberships, in practice, the two Boards were treated as one and the same. I note that the same applied to equivalent bodies considered by the Court of Appeal in Time v Fagalilo, another decision involving an Assembly of God church.1
[3] However, because the two Boards are subject to different rules, I consider it important to maintain the distinction between the two sets of memberships. In this judgment, I use the terms “Trustees” to refer to members of the Trust Board and “Board members” to refer to members of the Church Board.
The application
[4] Son Singh and Rajesh Jattan (the Applicants), who were elected as Trustees and Board members in July 2022, apply under ss 112, 114 and 133 of the Trusts Act 2019 for orders directing that:
(a)all current Trustees and Board members retire; and
(b)a special meeting of members of Calvary is called to elect five new Trustees/Board members.
[5] The application proposes eligibility criteria for persons who could be nominated for election as Trustees/Board members and for Calvary members entitled
1 Time v Fagalilo [2011] NZCA 402 at [24].
to vote in the elections. The proposed criteria are based on completion of membership forms, attendance at Church services and the payment of tithes.
[6] The Applicants say the orders are needed because there is an irreconcilable division between the current Trustees/Board members. The division has resulted in an impasse that requires Court intervention to remove the current Trustees/Board members and provide for the election of new Trustees/Board members.
[7]The application is opposed by the other Trustees/Board members,
Cheryl Singh, Carrol Prasad, and Urmila Narayan (the Respondents).2
[8] The Respondents say the Applicants have wrongly excluded them, and other members of Calvary, from using the church at Nikau Road and from the decision- making processes of the Trust/Church Board. The Respondents also say that the orders sought by the Applicants fail to address the root causes of the issues affecting Calvary and, if granted, would likely see a recurrence of the behaviours that have caused the current problems and a continuation of the impasse. Through their counsel, they have proposed alternative orders under which the Respondents, but not the Applicants, would continue as interim Trustee/Board members, pending new elections in 12 months’ time.
Urgency/consolidation of proceedings
[9] After the current application had been set down for hearing, the Respondents filed for judicial review of various actions and decisions of the Applicants and proposed that the two sets of proceeding be consolidated. Because the Applicants attach some urgency to their application, they opposed consolidation because of the delay that would entail with the hearing of their application.
[10] In July 2024, Becroft J declined to order consolidation, principally because he considered that the decision of the current application would effectively resolve the
2 Ms Narayan was elected only as a Church Board member and not as a Trust Board member. However, as discussed in this judgment, there appears to be no practical distinction between membership of the Trust Board and the Church Board.
concerns in the judicial review proceedings and that consolidation would involve inordinate delay for a church that is paralysed and requires final resolution.3
[11] In the event, for the reasons given below, the current application has not resolved any of the issues between the Applicants and Respondents. Those issues, and the parties’ responsibility in relation to the issues, are likely to be the subject of more detailed scrutiny in the judicial review proceeding. I have refrained, therefore, from making explicit findings of responsibility and lawfulness, except where necessary for the purpose of stating my understanding of how events transpired.
Constituent documents
[12] Two constituent documents provide governance and management arrangements for the Trust Board and the Church Board:
(a)An Incorporating Declaration of Trust and Rules of the Calvary Indian Assembly of God Trust Board, dated 5 May 1999 (the Trust Deed); and
(b)The Rules of the Incorporated Society called the Calvary Indian Assembly of God (the Rules).
[13] Both the Trust Deed and the Rules contain provisions relating to the functioning of a “Board”:
(a)The Trust Deed (cls 3(a)–3(b)) provides that the Board is to act as trustee for “an Assembly of God established at Auckland” (i.e. Calvary) and is to hold and manage property to aid and further the work of the Church.
(b)The Rules (rr 3(a)–3(b)) provide that the affairs of the Society (again, presumably Calvary) shall be managed by the Board which shall have full responsibility for the management and organisation of the Society.
3 Singh v Singh HC Auckland CIV-2024-404-752, 8 July 2024 (Minute of Becroft J), at [26]–[27].
[14] When declining consolidation, Becroft J observed that the Rules are appallingly drafted and that the Rules prepared for an incorporated society cannot bind the members of the Trust Board constituted under the Trust Deed.4 Even so, I have concluded that, despite the drafting challenges, the Trust Deed and the Rules are reasonably compatible with each other and can be made to work with a modicum of good sense and cooperation, particularly given that, with the exception of Ms Narayan, the Trustees and Board members are the same people.
[15] I also note that, as Becroft J observed, because the Trust Board has not been formally incorporated and the society contemplated by the Rules has not been formally registered, Calvary is essentially an affiliation of people operating under unregistered rules.5 In these circumstances, non-compliance with the Trust Deed/Rules may or may not have legal consequences. However, I consider that whether or not there has been a demonstrated willingness to adhere to, or conversely to flout, the Trust Deed and the Rules should bear on whether the Court should intervene as sought by the Applicants.
Relevant background
[16] There is a considerable history to this proceeding, all of which relates to the development of a schism within the membership of Calvary that has led to the current impasse. Because that history bears directly on whether the Court should make the orders sought, the following account is fuller than I had originally envisaged.
[17] The account draws on a judgment of Campbell J given shortly before the hearing of the current application following applications by Ms Singh and the Applicants for orders that their costs in this proceeding should be met from the assets of the Trust.6 It also draws on affidavits and exhibits filed by the Applicants, the Respondents and Mr Andrew Gilchrist, an independent barrister who endeavoured to
4 Singh v Singh, above n 3, at [17].
5 At [22].
6 Singh v Singh [2024] NZHC 2559 [First Beddoe Order Judgment], in which Campbell J ordered that Ms Singh’s costs and expenses and costs of defending the current application, if reasonably incurred, should be met from the assets of the Trust up to a maximum of $25,000. In a subsequent decision, Singh v Singh [2024] NZHC 2736 [Second Beddoe Order Judgment], Campbell J ordered that the costs and expenses of the Applicants in the current proceeding from 28 August 2024, if reasonably incurred, should be met from the assets of the Trust, up to a maximum of
$25,000.
assist Calvary to chart a way out of the impasse, as well as a chronology of facts prepared by Mr Woods, counsel for the Respondents.7 The account does not cover all the events discussed in the affidavits and listed in the chronology. It is limited to the main events and is intended to show how the schism played out in recent times.
[18] Although notices were given by the Respondents and the Applicants requiring each other to be available for cross-examination and arrangements made for witnesses to be cross-examined,8 no witnesses were called at the hearing. Accordingly, there has been no cross-examination of those who filed affidavits. However, it is not disputed that there is an impasse between the Applicants and the Respondents, and that the Trust and Church Board are dysfunctional. It is also apparent from what is said and not said in the affidavits that there is no real contest over the essential matters that led to the impasse.
Schism in the leadership
[19] The leadership of Calvary is in two factions. The Applicants comprise one faction, the Respondents the other.
[20] Both the Applicants and the Respondents accept that the members of each faction were validly appointed as Trustees and Board members. However, each faction has tried to vote the other off the Boards, apparently without success. The schism has manifested in disfunction in the Boards and in one faction, the Applicants, locking the other faction and its supporters out of the Church at Nikau Road.
[21] The schism first appeared in 2020 or 2021. An earlier proceeding brought by Mr Singh was commenced in 2021 but was settled by agreement following mediation in 2022.
Apparent settlement of the schism
[22]Among other things, the settlement agreed in 2022 provided for:
7 I note that certain paragraphs of Mr Gilchrist’s affidavit were struck out by Tahana J following a challenge by the Applicants to the whole affidavit — see Singh v Singh [2024] NZHC 2685. The struck out paragraphs were redacted in the copy of the affidavit before me.
8 Singh v Singh HC Auckland CIV-2024-404-752, 20 September 2024 (Minute of van Bohemen J).
(a)the appointment of Mr Singh and six others to be interim members of the Board (the Interim Board);
(b)the appointment of Mr Gilchrist as chair of the Interim Board; and
(c)the convening of a special general meeting (SGM) to elect “a full Church board” in accordance with r 3 of the Rules and to elect “a full Board of Trustees” pursuant to the Trust Deed.
[23] In the event, six nominations were received for election to the Church Board and five nominations were received for election as Trustees. The nominations for the Church Board comprised the Applicants, the Respondents and Shimon Raj. The nominations for Trustees comprised the same persons except that Ms Narayan did not seek election as a Trustee.
[24] The number of nominations for Trustee and for the Board was consistent with the Trust Deed and the Rules, despite the differences between the two instruments as to the minimum number of Trustees and Board members.9
[25] In these circumstances, Mr Gilchrist proposed in a letter to the interim Board dated 4 July 2022 that, subject to checking that the nominees met the criteria for election, the nominees should be declared elected, following which there would not be a need for an interim Chair.
[26] On 14 July 2022, at a meeting chaired by Mr Gilchrist and attended by most members of the Interim Board and all six persons nominated for the new Board, roles were assigned to all members and arrangements were agreed for the transfer of signatories of bank accounts. Mr Singh’s roles included Chair of the new Board and Principle [sic] Signatory. Mr Jattan’s roles comprised Secretary and Other Signatory. Ms Prasad’s roles comprised Treasurer and Other Signatory.
9 Clause 4 of the Trust Deed provides that the elected members of the Trust Board shall consist of not less than three members of the Assembly. Rule 3(c) of the Rules provides that the Church Board shall have a minimum of five members, including the Pastor, and not exceeding nine members.
[27] No distinction was made between roles as Church Board members and roles as Trust Board members.
[28] The first meeting of the new Board was held on 28 July 2022. Mr Gilchrist formally resigned as interim Chair on 31 July 2022 in accordance with his letter of 4 July 2022.
Differences and tensions arise
[29] Despite this apparently promising start, tensions soon arose. Mr Gilchrist says that between July 2022 and March 2023, both Mr Singh and Ms Singh approached him by telephone to complain about the behaviour of the other and to seek his intervention on behalf of Calvary. Mr Gilchrist explained to both that his previous role had ended but that if the Board wished to engage him as Chair and passed a resolution to that effect, he would be willing to undertake that role again.
[30] In August 2022, Mr Singh changed the authorisations required for the Calvary bank accounts so that he could set up and authorise payments by himself. Despite this arrangement apparently being contrary to the Rules,10 there was no agreement to revert to the previous arrangement.
[31] In October 2022, the Applicants attempted to exclude Ms Singh from Calvary on the grounds that she was not a member of the Assemblies of God of New Zealand (AOGNZ), apparently the national umbrella body for Assemblies of God. The Applicants continued to press for Ms Singh’s exclusion from Calvary, despite advice that individuals could not be members of AOGNZ and despite Calvary ceasing its affiliation with AOGNZ.
[32] The Respondents say that, in October 2022, the Applicants appointed a new Pastor, Pastor Chinappa, for Calvary to replace the previous Pastor who had died without obtaining the approval of the Church Board. Mr Singh denies that any formal appointment was made. However, it is apparent that Pastor Chinappa has been acting as Pastor since that time. The Rules require that the direction of the Assembly be
10 Rule 8 of the Rules provides that Calvary’s bank account shall operate by the joint signatories of any two authorised signatories who shall be the Treasurer and one other Board member.
sought before the appointment of a Pastor.11 There is no evidence that such direction was obtained.
[33] Despite the Rules requiring that the Church Board hold regular meetings, generally monthly,12 there were no meetings of the Church Board between November 2022 and March 2023, apparently because the Applicants refused to call any meeting.
Motion to reappoint Mr Gilchrist as Board chair
[34] On 20 March 2023, by an email addressed to all other Board members, Ms Singh moved a motion, which was seconded by Ms Narayan, that Mr Gilchrist be re-engaged to chair Board meetings, with no casting vote, and to provide legal guidance. The motion was supported, by email, by Mr Raj. It was opposed, by email, by Mr Jattan on behalf of himself and Mr Singh. Ms Prasad abstained on the motion.13
[35] Also on 20 March 2023, Mr Raj and the Respondents signed a resolution recording the re-appointment of Mr Gilchrist as Chair of the Board pursuant to r 8 of the Rules.
[36] There is conflicting evidence as to when the motion was approved and the terms of the approval. However, I do not accept Mr Singh’s claim that he was not given notice of the motion or the opportunity to vote on it.14
[37] On 22 March 2023, Mr Gilchrist accepted appointment as independent chair of the Board. While Mr Singh says that Mr Gilchrist was notified of the appointment
11 Rule 3(l) of the Rules provides that, in the event of the Pastor resigning his position, the Secretary shall call a special meeting of the Society (i.e. the Assembly) to seek its direction on the actions the Board should take.
12 Rule 3(m) of the Rules provides that the Board shall hold regular meetings, generally monthly, and at least 10 times per year. It also provides that meetings shall be convened by the Secretary or, in the case of his/her absence, inability or refusal, with the approval of the majority of the members at such convenient places and times as the meeting convenor shall appoint.
13 While the Rules do not provide for meetings by email, it would seem that the email exchanges complied with the spirit of r 5 of the Rules and cl 8 of the Trust Deed.
14 It is clear from emails exhibited to Mr Singh’s affidavit that Mr Singh was included on emails seeking Board members’ approval of the motion before its adoption and that Mr Jattan recorded the opposition of himself and Mr Singh.
before email correspondence concerning the appointment was exchanged among Board members, that claim is not consistent with emails produced by Ms Singh.15
Preparation of request for an SGM
[38] On 26 March 2023, the Applicants and 25 other individuals signed a form providing for the recording of names, dates of birth, signatures and dates of signature. Above the form is written, in handwriting, a message to the Secretary of the Calvary Indian Church, Ōtāhuhu, a request to convene an urgent SGM to elect new Board members and to move a vote of no confidence in the Respondents and Mr Raj. No action was taken at the time based on the request.
Mr Gilchrist resumes role as interim Chair; Board members behave badly
[39] On 28 March 2023, Mr Gilchrist’s appointment was put to another vote and approval sought for payment of his fees. The vote was carried by three votes in favour, two against and one abstention. Despite the vote being carried in accordance with the Rules,16 the Applicants refused to allow payment of Mr Gilchrist’s fees. Even so, Mr Gilchrist continued to chair meetings of the Board.
[40] Following a Board meeting on 22 May 2023, Mr Gilchrist emailed all Board members and recorded that he had been appalled by the way members had treated and reacted to other members, and noted the lack of respect, snide and rude comments, and bullying behaviour at the meeting. Mr Gilchrist asked Board members to remember their fiduciary duties as members of the Board to act in good faith and in the best interests of the church. Mr Gilchrist also said it was common ground that the Board
15 In her affidavit, Ms Singh exhibits a copy of an email dated 20 March 2023 and addressed to all other Board members, including Mr Singh, in which Ms Singh records that the motion had been carried by three majority votes and asked Board members to provide their signatures. In his affidavit, Mr Singh exhibits a copy of an email dated 23 March 2023 which records some, but not all, of the same information in the email exhibited to Ms Singh’s affidavit. It would appear that the email exhibited to Mr Singh’s affidavit is a later reconstruction of the earlier email.
16 Rule 3 of the Rules does not specify a particular majority except in certain situations when the vote of two-thirds of the members is required. By inference, a simple majority is sufficient for other votes. Clause 8 of the Trust Deed provides that each member of the Board shall have one vote but does not prescribe any special majority. By convention, a majority means a majority of members who vote for or against a motion and does not take account of abstentions. I note that the Trust Deed predates the Trusts Act 2019 and the requirement, in s 38, that trustees must act unanimously.
was dysfunctional and that they needed to put a fresh constitution to the congregation (the preparation of which was underway) and have fresh elections.
[41] Following this email and a subsequent email in which Mr Gilchrist took issue with Mr Singh’s refusal to implement a Board decision on church rosters, Mr Singh challenged Mr Gilchrist’s neutrality and his right to be involved in operational matters of the church. Mr Gilchrist refuted both challenges.
Consideration of new draft Constitution
[42] On 10 July 2023, the Board had a lengthy meeting at which it considered a draft of a new constitution, in the form of a new trust deed, which had been prepared by Calvary’s solicitors on the instructions of the Applicants. The meeting agreed that it would resume on 31 July 2023 but that further progress would be made with the constitution in the meantime. On 12 July 2023, Mr Gilchrist sent an email to Calvary’s solicitors setting out changes to the draft trust deed to which the Board had agreed and identifying alternative drafting for some provisions which the Board considered to require decisions by the congregation.
Bad behaviour continues; call of SGM resumed
[43] Despite the progress made at the meeting on 10 July 2023, on 11 July 2023, Ms Singh and Mr Singh exchanged fractious emails concerning Mr Singh’s refusal to change the rosters and the non-payment of Mr Gilchrist’s fee. The exchanges were copied to other Board members, following which Mr Jattan asked not to be included on Ms Singh’s “nonsense email” and made other abusive comments to Ms Singh. After a message from Mr Gilchrist urging calm and compromise on the issue of rosters, Mr Jattan challenged Mr Gilchrist’s neutrality and said he was bending over backwards to accommodate Ms Singh. Mr Singh then announced, by email to Mr Gilchrist and the other Board members, that he was going to instruct Mr Jattan to call a meeting of the congregation, that he already had a mandate for an SGM and that talking to Mr Gilchrist was pointless because he was not neutral.
[44] Subsequently, Mr Singh emailed Board members and Mr Gilchrist stating that “we are going to announce the date of the SGM” to the congregation on 16 July 2023,
with the agenda to comprise adoption of a new constitution, election of five “Board of Trustees” and vote of no confidence. Mr Gilchrist replied that this was not in accordance with the current constitution, that the Board either needed to authorise the SGM or adhere to the current constitution.
SGM apparently held and motion of no confidence in the Respondents adopted
[45] In fact, a meeting was held directly after the church service on 16 July 2023. Mr Gilchrist advised the meeting that it had not been validly called but says he was shouted down by Pastor Chinappa. A vote of no confidence in the Respondents and Mr Raj was passed, as was a motion that Mr Gilchrist was not to be involved in the church. To the extent that the vote of no confidence was intended to remove Trustees or Board members, it is doubtful it was effective in terms of the Trust Deed and the Rules.17 It is also doubtful that the notice requirements of the Rules had been complied with.18
[46] On 22 July 2023, Mr Raj submitted a letter of resignation from the Church Board and as Trustee.
New Board members apparently elected
[47] On 23 July 2023, Mr Jattan issued a notice of election for four members of “the interim board/trustees” that was to take place on 30 July 2023, invited nominations to
17 Clause 4 of the Trust Deed provides that the original members of the Trust Board can be removed by a resolution of a general meeting of the Assembly but does not expressly provide for the removal of subsequent Trust Board members. Even if removal is possible by resolution of the Assembly, the resolution adopted on 16 July 2023 expressed no confidence in the Respondents but did not require their removal. In addition, there is a question as to whether the number of attendees constituted a quorum of one-third of the membership of Calvary, as required by r 5(d) of the Rules.
Rule 3(f) of the Rules gives the Church Board, not an SGM, the power to remove Church Board members. Rule 3(g) provides that any removal of a Board member must have the support of two- thirds of the Board. It also provides that persons intended to be removed must be given an opportunity to defend themselves before the vote.
18 Rule 5(c) of the Rules requires a period of seven days between the notice of a meeting and the meeting, except in the case of emergency required in the view of the Board. There was not even a day’s notice between the announcement of the meeting at church and the meeting itself. There was no decision by the Board for such a shortened period of notice. Given that four months had elapsed between the request for a meeting signed on 26 March 2023 and the meeting on 28 July 2023, it is doubtful that request could satisfy the notice requirement.
be submitted by 5 pm on 28 July 2023 and set out eligibility criteria for election. Nominations were received from five persons.
[48] On 30 July 2023, a meeting was held at which four of the nominees were declared elected. None of those persons is a party to this proceeding.
[49] Mr Singh says the Applicants understand that they were not able to remove the Respondents as Trustees and Board members. He also says that they understand that the election of the new members was valid. Given the terms of the Rules, there would appear to be some doubt about that.19
Board unable to meet
[50] On 31 July 2023, Mr Gilchrist endeavoured to re-convene the Board as had been agreed at the 12 July 2023 meeting. However, the meeting could not proceed because the Church was locked, with a padlock on the front door.
[51] The following day, Mr Gilchrist sent an email to the Applicants, the Respondents and Mr Raj recording what had happened and advising that, in his view, the election of the new Board members was invalid and subject to legal challenge.
[52]Also, on 1 August 2023:
(a)the Board, not including the Applicants, froze the Calvary bank account with the BNZ; and
(b)Mr Gilchrist advised two of the persons elected on 30 July 2023 that, in his view, their election was not valid and asked them to convey the same information to the other two persons who had been elected.
19 While, following Mr Raj’s resignation, the total number of Board members (old and new) does not exceed the maximum of nine members provided for in r 3(c) of the Rules, there is a question as to whether the SGM that elected the new members was validly called for the reasons in n 18.
Formal complaint made to Charities Services
[53] By letter dated 19 September 2023, Mr Woods, as solicitor for Ms Singh, made a formal complaint to Charities Services alleging bullying, intimidation and other malfeasance at Calvary. The letter focused on the behaviour of the Applicants and events of the previous months.
Board members prevented from attending Church
[54] On 24 September 2023, Ms Singh was physically prevented from entering the Church and was told by Pastor Chinappa and Mr Singh that she would not be allowed back into the Church until all legal issues had been resolved.
[55] On 25 September 2023, Ms Narayan received an email from Mr Singh attaching a trespass notice requiring Ms Narayan not to enter the Church.
SGM called
[56] On 26 October 2023, the Respondents issued a notice calling for an SGM to be held on 5 November 2023 at the Ōtāhuhu library. The notice advised that the matters to be voted on were two motions of no confidence “as Board and Trustee” in the Applicants, replacement of “Board and Trustee members” and payment of Mr Gilchrist’s fees. Nominations for election were to be submitted by 1 November 2023. Subsequently, the SGM date was shifted to 19 November 2023 and the time for nominations extended to 12 November 2023.
[57] The minutes of the meeting record that 19 people, including Mr Gilchrist and Mr Raj, attended. However, Mr Singh has produced an email from Mr Raj saying he was not aware of the meeting. A resolution expressing no confidence in the Applicants and approving payment of Mr Gilchrist’s fees was passed. Because of a lack of nominations, there was no election of new Trust Board or Church Board members. To the extent the vote of no confidence of itself was intended to remove the Applicants from the Trust Board or the Church Board, it is doubtful it was effective.20
20 See n 18. In addition, there is a question as to whether the number of attendees constituted a quorum of one-third of the membership of Calvary, as required by r 5(d) of the Rules.
Board meeting vote to remove Mr Singh and Mr Jattan
[58] On 4 December 2023, a meeting of the Board, comprising Mr Gilchrist, the Applicants and the Respondents was held. The four new members apparently elected on 30 July 2023 and Pastor Chinappa also tried to attend but were denied entry by majority vote of the Respondents and the Applicants.
[59] The minutes of the meeting record that the Board confirmed the SGM resolution of 19 November 2023 that the Board had no confidence in Mr Singh and Mr Jattan and voted that they be removed as Board members and Trustees. The minutes record that the vote was passed by three votes (the Respondents) to two (the Applicants).
[60] Given that, as required by r 3(g) of the Rules, a vote for removal must be supported by two-thirds of the Board, the vote for removal was not effective, whether the Board comprises five members (following Mr Raj’s resignation) or nine members (including the four members elected on 30 July 2023).
End result
[61] The consequence of all of the above is that there remains an impasse between the Applicants and the Respondents and that, although each faction has tried to remove the other from the Board, neither side has been effective in securing that result. In the meantime, the Board is dysfunctional and the membership of Calvary as a whole remains divided. Also, as recently advised by Mr Wood, Ms Singh and her supporters remain excluded from the Church.
Submissions for the Applicants
[62] Mr Napier for the Applicants says that the evidence shows less than perfect behaviour from both sides but says it also shows incontrovertibly that there is an impasse between the Trustees/Board members such that Court intervention is necessary. Mr Napier also submits that it is desirable to replace all of the current members to allow a fresh start. To that end, he says fresh elections should be held in
accordance with the Trust Deed to allow the members of Calvary to choose who takes those positions.
[63] Mr Napier acknowledges that a key issue to be addressed relates to membership of Calvary and eligibility to vote in elections for new Trustees/Board members. He refers to the membership criteria in r 4(a) but says that, traditionally, membership of Calvary was an informal process by which individuals attending a number of Calvary events would be invited to complete a membership form.21
[64] Mr Napier notes the differences in membership counts of the Applicants (47) and Respondents (34). He notes that 61 completed membership forms are in evidence and that this accords with the approximate membership recorded in the financial statements submitted to the Charities Commission as at 31 March 2023. He also acknowledges, however, that the Applicants have refused the Respondents entry to the Church.
[65] Taking these considerations into account, Mr Napier proposes that the Court should make orders determining eligibility to vote in the elections for the new Trustees/Board members. In particular, Mr Napier submits that the eligibility criteria for nominating candidates for election and for voting should be based on the following:
(a)Church attendees who have completed a membership form;
(b)Church attendees who have attended at least 80 per cent of Church services in the last 24 months or in the 12 months before October 2022; and
(c)Church attendees who have paid tithes to the Church in the last 12 months.
21 It is unclear from the heading “Membership” whether r 4 of the Rules relates to membership of the Board or Calvary. However, given that the last criterion of r 4(a) is that the person has the attributes and other values and virtues for serving on the Board and that r 4(b) provides from resignation from the Board, I am satisfied that r 4 relates to membership of the Church Board and not membership of Calvary, even if some of the criteria (belief in Jesus Christ and in a Doctrinal Statement attached to the Rules) would also seem relevant to church membership.
[66] These criteria are a development of those proposed in the application. In addition, Mr Napier says the Applicants are willing to have the election process supervised by an independent person appointed by the Court.
Submissions for the Respondents
[67] In his submissions, Mr Woods rehearses the history of the impasse and says the Applicants have failed to acknowledge their responsibility for this state of affairs. He says the Applicants have repeatedly acted contrary to the interests of the Trust, breached their duties as Trustees, hindered the proper functioning of the Trust and acted in their own interests.
[68] Mr Woods accepts that the on-going disputes mean the Trust Board is inoperable and cannot be managed effectively. However, he says the orders proposed by the Applicants, including as amended at the hearing, are short-sighted and do not address the root causes of the problem. Mr Woods says that, if the Court were to make the orders as sought, the same disputes may rise again.
[69]Mr Woods says a better course would be for the Court to make orders:
(a)appointing an interim Trust Board/Church Board comprising the Respondents and an independent trustee, who should be an experienced lawyer, appointed by the Court;
(b)directing the trustees to call an SGM no later than 12 months after appointment in order to appoint a new Trust Board/Church Board;
(c)requiring the membership of Calvary to be determined prior to the SGM based on tithing records from August 2022 and for members who joined subsequently to provide their details to the interim Trust Board/Church Board for vetting;
(d)requiring the interim Trust Board/Church Board to appoint a new pastor as a first order of business;
(e)enjoining the Applicants from being trustees; and
(f)appointing an independent lawyer to monitor the SGM process to ensure it is conducted fairly, transparently and in accordance with the Rules.
[70] No application seeking such relief was filed in this proceeding. Some of the above proposed orders are inherent in or consistent with the relief, sought in the judicial review proceeding.22
Discussion
[71] I accept that the Trustees/Board members are at an impasse. I also accept that, absent outside intervention or a major change of attitude, particularly on the part of the Applicants, that impasse is not likely to resolved. I also accept that the impasse is to the detriment of Calvary and its operation as a charitable trust and as a church.
[72] However, I have concluded that I should not make the orders sought by the Applicants. There are a number of reasons for that conclusion.
[73] The first is that the current Board members are both Trustees and Board members. While the application is framed as an application under the Trusts Act to remove trustees, it is clear that the intention is to remove the existing Trustees and Board members. However, in Time v Fagalilo, the Court of Appeal held that the Court’s power to appoint new trustees under s 51 of the Trustee Act 1956 did not extend to requiring election of a church board governed by separate rules.23
[74] Section 114 of the Trusts Act, on which the Applicants rely, is the successor section to s 51 of the Trustee Act. Accordingly, I consider I am bound not to order elections for the Church Board in the context of an application under the Trusts Act.
22 The relief sought in the judicial review proceeding includes declarations as to who are the validly appointed Trustees/Board members, and that Ms Singh remains a validly elected Trustee/Board member. It also includes declarations as to the lawfulness of actions taken by the Applicants, including the appointment of a Pastor.
23 Time v Fagalilo, above n 1, at [41].
[75] In addition, given that the real issues between the parties in this case relate to the management and organisation of Calvary as a church, I do not consider it would be sufficient to order the election of new trustees and to leave it to the members of Calvary to decide whether to elect current Board members as trustees — as the Court of Appeal ordered in Time v Fagalilo.24
[76] Secondly, I am not satisfied there are sufficient grounds for Court intervention on the basis proposed by the Applicants.
[77] The Court’s powers to remove and appoint trustees are both inherent and statutory. The statutory powers as provided for in ss 112 and 114 of the Trusts Act may be exercised where it is necessary or desirable to remove or appoint a trustee and it is difficult or impracticable to do so without the assistance of the Court. When considering whether to exercise its inherent jurisdiction to remove trustees, the Court should consider the interests of the beneficiaries.25
[78] The power to remove trustees is usually exercised where there is an inability on the part of a current trustee to act26 or where it has been found that a current trustee should not be permitted to remain in the role, whether because of a conflict of interest27 or some malfeasance on the part of the trustee.28 The Court’s powers have also been exercised where the trustees are at an impasse, although this is more common where the trustees were spouses or partners.29 The Court is likely to remove trustees in those circumstances where such action would ameliorate the impasse. Often, removal of warring trustees is accompanied by the appointment of one of more independent trustees.30
24 At [41].
25 Collard v Mendoza [2024] NZHC 1393 at [18]–[19], citing Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 (CA) at [22].
26 See Aksinya Enterprise Ltd v Bhagirath [2022] NZHC 3526 at [15], [22], [34].
27 See Cain v Martin [2024] NZHC 715 at [24].
28 Ngati Kuri Trust Board v Neho (2006) 1 NZTR 16-014 at [194]–[195], citing Letterstedt v Broers
(1884) 9 App Cas 371.
29 See Oldfield v Oldfield [2019] 492; Nadan v Sharma [2022] NZHC 2553 at [28].
30 At [29]–[31].
[79] The Applicant’s sole ground for removal is that the Trustees/Board members are at an impasse and, as put to the Court by Mr Napier, it is unnecessary for the Court to inquire into why that it so. Indeed, the affidavits of the Applicants avoid, as far as possible, any discussion of their role in bringing about the impasse.
[80] Yet, without making any findings of liability in relation to specific actions, it is blindingly obvious from the Applicants’ own correspondence that their actions, taken without regard for the provisions of the Trust Deed and the Rules and with a disdainful attitude towards the other Trustees/Board members, are the reason for the impasse. The Applicants have not only made it impossible for the Trust Board and Church Board to function, but they have also actively prevented the other Trustees/Board members from attending Church for over two years. Based on a recent memorandum filed by Mr Woods, it appears that they continue to do so.
[81] How that behaviour can be reconciled with a professed belief in Jesus Christ is difficult to fathom. In any event, I do not accept that it is necessary or desirable to remove Trustees/Board members where the actions of the Applicants have been the major cause of the impasse that the removal is sought to cure. That is particularly so where, as appears to be the case here, it is within the power of the Applicants to resolve the impasse if they were minded to.
[82] Thirdly, I am far from persuaded that orders as sought by the Applicants would cure the impasse. The orders the Applicants seek are silent on whether the persons removed as Trustees would themselves be eligible for re-election. Without an order prohibiting them from standing, they must be eligible.
[83] Mr Singh is the one person common to the impasse that arose in 2021 and that which reignited in 2022. If he were to stand again, there must be a reasonable possibility that history would repeat, again. Even worse, there is also the possibility that the Court’s orders would be presented as vindication of the actions taken by the Applicants and used to drive the Respondents away from Calvary. Neither result would be an appropriate consequence of Court orders.
[84] The orders proposed by the Respondents might avoid those consequences, but no application has been made for such orders in this proceeding. More importantly, the orders sought by the Respondents would entail findings of fault and impose sanctions on the Applicants. That would be inappropriate in the context of an application where no such findings or sanctions were sought. For that reason, I am satisfied that I should not make the orders sought by the Respondents. Moreover, there is on foot another proceeding that seeks similar orders, and which is more appropriate for considering whether such orders should be made.
[85] Lastly, as both the Applicants and the Respondents recognise, the key questions that must be resolved if new elections are to be held are:
(a)who are the members of Calvary? and
(b)which of those members are eligible to seek election and to take part in the elections?
[86] With the exception of r 4 of the Rules, which appears to relate to membership of the Board rather than membership of Calvary/the Assembly, these questions are not addressed in the Trust Deed or the Rules.
[87] I recognise that it is within the Court’s power to set criteria that address both sets of eligibility criteria. However, in order to do so, the Court would require agreement by the parties, which has not been forthcoming,31 or there would need to be more evidence than was before the Court on the current application about the practices and wishes of the wider membership of Calvary, who are the beneficiaries of the Trust. In these circumstances, I do not consider I have an adequate basis for determining those questions.
31 In the course of the hearing on 26 September 2024, I adjourned the hearing to allow the parties and their counsel to discuss whether they could agree to the revised orders sought by the Applicants, after the eligibility criteria had been adjusted to take account of the Respondents’ exclusion from the church. No agreement was reached.
Result
[88]The application is dismissed.
Costs
[89] As the unsuccessful parties, the Applicants are liable for the Respondents’ costs, subject to the orders in the Second Beddoe Order Judgment.32
[90] I consider costs to be payable on 2B basis. However, if the Respondents wish to seek costs on some other basis or the parties are otherwise unable to agree on costs, memoranda of no more than four pages may be filed as follows:
(a)Any memorandum by the Respondents may be filed by 24 March 2025.
(b)Any memorandum by the Applicants may be filed by 7 April 2025.
G J van Bohemen J
32 Second Beddoe Order Judgment, above n 6, at [12].
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