SON SINGH as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD RAJESH JATTAN as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD AND CHERYL SINGH as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD CARROL PRASAD as TRUSTEE...
[2024] NZHC 2685
•17 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2024-404-000752
[2024] NZHC 2685
UNDER Part 19 of the High Court Rules 2016 IN THE MATTER OF
the Calvary Indian Assembly of God
BETWEEN
SON SINGH as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD
First Applicant
RAJESH JATTAN as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD
Second ApplicantAND
CHERYL SINGH as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD
First RespondentCARROL PRASAD as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD
Second RespondentURMILA NARAYAN as BOARD MEMBER OF THE CALVARY INDIAN ASSEMBLY OF GOD
Third Respondent
Hearing: 21 August 2024 Appearances:
P J Napier and J Leenoh for Applicants
N Woods and T T Fayomi for Respondents
Judgment:
17 September 2024
JUDGMENT OF TAHANA J
[Strike out of affidavit]
SINGH as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD v SINGH as TRUSTEE OF THE CALVARY INDIAN ASSEMBLY OF GOD [2024] NZHC 2685 [17 September 2024]
Introduction
[1] The applicants apply to strike out the affidavit of Mr Andrew Gilchrist dated 24 July 2024 (the Gilchrist Affidavit). The respondents oppose.
[2] On 8 July 2024, Becroft J granted leave for an affidavit to be filed by Mr Gilchrist on the “strict basis that it responds only to aspersions or allegations made against him in his role” as independent chair of the Calvary Indian Assembly of God (the Calvary).1
[3] The applicants argued that the affidavit goes further than the scope of the leave granted and therefore should be struck out or limited to those parts of the affidavit that strictly respond to the scope of the leave granted.
[4] I therefore need to determine whether the content of the Gilchrist Affidavit goes beyond the scope of the leave granted and, if so, whether it should be struck out.
What was the scope of the leave granted to file the Gilchrist Affidavit?
[5] The background and scope of leave is set out in the minute of Becroft J as follows:2
[34] A second matter as to the affidavits has arisen. Ms Fayomi for the respondents also wishes leave to file an entirely new affidavit on behalf of Mr Gilchrist, a well-known Auckland barrister who has been acting as the independent chair of the Trust Board for the time being. There has been no formal application to do so. This appears to come as a complete surprise to Mr Napier for the applicants.
[35] This should all have been anticipated some time ago by Ms Fayomi, or at least the respondents. The choice was made not to file an affidavit. Now, well out of time, the application is made.
[36] I am very sympathetic to Mr Napier’s concerns that a new affidavit, to which he must, in fairness, have the chance to respond, could open up “a can of worms”.
[37] Strictly speaking, Mr Napier is right. However, I will grant leave for an affidavit to be filed by Mr Gilchrist on the strict basis that it responds only to aspersions or allegations made against him in his role.
1 Singh v Singh HC Auckland CIV-2024-404-752, 8 July 2024 (Minute of Becroft J) at [37]–[40].
2 Singh v Singh, above n 1.
[38] I repeat: any affidavit of Mr Gilchrist that is filed must be strictly limited. It must only respond to negative allegations against him. It cannot be the chance to open the door to give voluminous new detail regarding how the Trust Board operated and the like. It must be strictly confined. It is to be filed by the 25 July 2024. Any response that is thought necessary can be filed by the 14 August 2024, which is two weeks later.
[39] I know in doing this there may be a chance of a Pandora’s box being opened. As I say, the affidavit must be very limited to address what might be called integrity matters that you, Ms Fayomi, say are at stake here. But it is not, I repeat again, a chance to document how the Board has met on every occasion that Mr Gilchrist has been the interim chair.
[40] I also add that I am allowing this as a matter of fairness, so that at least all the parties can say they have had everything put before the Court. It seems that Mr Gilchrist’s views may not be relevant to the prime task before the Court which is interpreting the two documents — first, the declaration of trust and, second, the rules of the proposed but still incorporated society.
[6] Leave was therefore granted to respond to any aspersions or allegations that had been made against Mr Gilchrist in his role as independent chair. It is therefore necessary to identify those aspersions or allegations so as to assess whether the Gilchrist Affidavit responds to those aspersions or allegations or goes further.
What aspersions or allegations were made against Mr Gilchrist?
Appointment of Mr Gilchrist
[7] At [23] to [25] of Mr Son Singh’s affidavit dated 3 April 2024 (Singh April Affidavit), Mr Singh raised issues as to the appointment of Mr Gilchrist:
23On 8 December 2023, Mr Gilchrist provided an email setting out his appointment (amongst other things). Attached and marked "SS-13" is a copy of the email.
24Based on the explanations from Mr Gilchrist, it appears that notice of the board meeting was intentionally not to Mr Jattan or me and that we were purposely excluded from the board meeting.
25We dispute the validity of the board resolution, because we were never given notice of the board meeting. We consider this to be improper. Further it does not appear that the resolution was made with a majority, given the second respondent's abstention from voting.
[8] At [41] of Mr Singh’s affidavit dated 10 June 2024 (Singh June Affidavit), he questioned the appropriateness of Mr Gilchrist chairing meetings and stated “his
appointment is questionable” and “I strongly oppose that Calvary’s funds should be used to pay his fee.”
[9] At [6] to [8] of Mr Jattan’s affidavit dated 2 April 2024 (Jattan April Affidavit), Mr Jattan refers to a purported board meeting on 20 March 2023 and explains that he opposed a subsequent motion, circulated by email, to appoint Mr Gilchrist. Mr Jattan then refers at [9] to a written request signed by 27 Church members seeking an election of new trustees, expressing a vote of no confidence in the respondents, and seeking revocation of Mr Gilchrist’s appointment.
[10]In Mr Jattan’s affidavit dated 10 June 2024 (Jattan June Affidavit), he states:
15. … I do not believe Mr Gilchrist was legitimately appointed and therefore do not believe that the Church is responsible for his fees.
Conduct of Mr Gilchrist
[11] At [64] to [65] of the Singh April Affidavit, Mr Singh sets out allegations against Mr Gilchrist:
64We also consider Mr Gilchrist's appointment has not assisted the parties in reaching resolution, but has aggravated matters. We do not believe Mr Gilchrist has acted fairly or independently. For example:
(a)Following a board meeting, Mr Gilchrist implicitly suggested a vote of no confidence could be taken against Mr Jattan and me, so long as the procedure was correctly followed. This has not assisted the parties in reaching a resolution. … ;
(b)wrote a letter proposing that both Mr Jattan and me resign as trustees and board members. … ; and
(c)despite provisions in the Governing Documents providing that the Pastor of the Church is to be the chairman of board meetings, Mr Gilchrist refused to allow the Pastor to attend a board meeting.
(d)Mr Gilchrist's implied suggestion that both Mr Jattan and I were correctly and properly removed as trustees and board members as recorded in the proposed draft meeting minutes when the Governing Documents provide that trustees and board members can only be removed by voluntary resignation and two-third majority vote by the trustees and board members. … ;
(e)Mr Gilchrist's response to our position relating to the Church's affairs. … particularly relating to the special meeting that was held on 16 July 2023 and alleging bullying behaviour from Mr Jattan and me;
(f)Mr Gilchrist's response to our lawyer's letter dated 15 January 2023 but sent 15 February 2023 … alleging that the special meeting had been conducted in a misleading manner.
65We consider Mr Gilchrist has been favouring the position of the first, second and third respondents, without having regard to the best interests and requests of the beneficiaries and members of the Church. This at a time when the first, second and third respondents have not been attending the Church and have been attending other churches.
[12]In the Singh June Affidavit, he further questions Mr Gilchrist’s conduct:
53… I object to Andrew Gilchrist's involvement in any church matters due to concerns regarding his impartiality, favouritism, and the questionable nature of his appointment.
…
57… I believe that Mr Gilchrist’s bias is apparent in all matters concerning Calvary.
58… I believe that Mr Gilchrist has been unfair.
[13] The allegations against Mr Gilchrist therefore comprise allegations that he was not properly appointed, that he is biased in all matters regarding Calvary, that he has favoured Ms Cheryl Singh and that he has acted unfairly. The allegations also include the specific examples as set out at [64](a) to (f) of the Singh April Affidavit.
The Gilchrist Affidavit
[14] The Gilchrist Affidavit is 17 pages (77 paragraphs) and annexes approximately 100 pages of annexures.
[15] Mr Napier for the applicants argued that although a small number of paragraphs respond directly to the specific allegations of Mr Singh and Mr Jattan and are therefore relevant ([69] to 74] of the Gilchrist Affidavit), the bulk of the affidavit does not and should be struck out.
[16] Given the extent of the allegations against Mr Gilchrist as set out at [7] to [13] above, I do not accept that the Gilchrist Affidavit goes beyond responding to those
allegations other than in a small number of paragraphs. The Gilchrist Affidavit addresses the background to his appointment, which is relevant to responding to allegations that he was not validly appointed. Mr Gilchrist’s experience is also relevant to his credibility which goes to the allegation that he has not acted impartially.
[17] The Gilchrist Affidavit then responds to allegations as to his conduct by providing examples of how he conducted meetings. That evidence is relevant to responding to the allegation that his bias is apparent in all matters concerning Calvary. By making this broad allegation, Mr Singh has called into question all of Mr Gilchrist’s conduct. Mr Gilchrist is entitled to respond by providing evidence of his conduct in chairing meetings so that the Court can assess the credibility of Mr Singh and Mr Jattan’s allegations.
[18] Becroft J acknowledged that allowing the further evidence was “a matter of fairness”.3 It would be unfair if Mr Gilchrist is muzzled in responding to general allegations against him, especially when those allegations question his impartiality and allege bias. In order to properly respond to those allegations, it is appropriate that Mr Gilchrist be able to explain both the relevant context and his conduct. Mr Singh’s allegations against Mr Gilchrist are not limited to the specific examples he provides, but include a general allegation of bias in all matters concerning Calvary.
[19] I accept that some parts of the Gilchrist Affidavit go beyond responding to the allegations and seek to advance Mr Gilchrist’s own views as to his costs and the appropriate way forward. In this regard paragraphs [64] to [67] express Mr Gilchrist’s views as to the nature of the dispute between the board members and his view on the appropriate way forward. Mr Gilchrist also expresses his views on his costs at [75] to [77]. Evidence of Mr Gilchrist’s views as to costs and the way forward are not relevant in responding to the allegations. I consider that those paragraphs go beyond the scope of the leave granted by Becroft J.
3 Singh v Singh, above n 1, at [40].
Result
[20] I decline to strike out the whole of the Gilchrist Affidavit and order that paragraphs [64] to [67] and [75] to [77] be struck out.
[21]Costs are reserved.
Tahana J
Solicitors:
K3 Legal Ltd, Auckland Rice Craig, Papakura Copy to: A Gilchrist
0
0