St Barnabas Roseneath Trust Board HC Wellington CIV-2011-485-1254

[2011] NZHC 1353

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1254

IN THE MATTER OF     an application under Part III of The

Charitable Trusts Act 1957

BETWEEN  THE ST BARNABAS ROSENEATH TRUST BOARD

Applicant

Hearing:         2 August 2011

Counsel:         M F Mabbett for Applicant

Judgment:      3 August 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 9:30am on the 3rd August 2011.

[1]      The St Barnabas Roseneath Trust Board is incorporated under the Charitable Trusts Act  1957.    The  original  Trust  owned  St  Barnabas  church  building  and surrounding land and buildings in Roseneath.  The church building and land were sold  to  the  Anglican  Dioceses  of  Wellington  and  other  land  was  sold  to  the Wellington Education Board.

[2]      There  remains  now  a  small  hall  located  immediately  behind  the  church known as the Parish Lounge, and a house known as the Vicarage.  The remaining Trust assets are valuable.  The trustees apply under ss 33 and 35 of the Charitable Trusts Act 1957 to make changes to the relevant Trust Deed.  The charges may be

summarised as follows:

THE ST BARNABAS ROSENEATH TRUST BOARD HC WN CIV-2011-485-1254 3 August 2011

(a)      Purpose of the Trust:  The current Deed refers to possession of Trust property  as  “a  church  room  for  the  purpose  of  holding  Divine Service” (in clause 1).   Since the Trust no longer owns the church building that reference is deleted leaving (in a new clause 5.1) the second stated original purpose of “supporting the Parochial District of St Barnabas, Roseneath”;

(b)Trustee powers, general: Addition of trustee powers to apply rental to any relevant purpose; deal with the property in connection with the Trust’s purpose; delegate authority to administer property; and undertake any other act to further the Trust’s purpose (clause 6.1). The trustees must consult and be guided by the vestry (clause 6.2) and the  powers  can  only  be  exercised  by  way  of  general  resolution pursuant to clause 9 (clause 9.1);

(c)      Trustee powers, special:  The current Trust Deed includes a power of sale with the consent of the vestry (clause 4).  There is no power to amend the Deed.   Proposed changes include a power to dispose of Trust property and vary provisions of the Trust Deed other than those relating to purpose (clause 7.1).  The exercise of the special powers will require the consent of the Vestry and the approval of the Parish (75% majority at a general meeting);

(d)Trustee appointments:  The proposed Trust Deed specifies additional requirements for trustee appointments (clauses 8.3-8.9).  The current Trust  Deed  (clause  6)  requires  that  trustees  reside  not  more  than

20 miles from the Parochial District of St Barnabas.  The purpose of this original requirement was to ensure connection with the Parish. This requirement is to be removed in light of  modern changes in modes of travel and communication;

(e)      Trustee  meetings:    The  proposed  Trust  Deed  includes  provisions relating to trustee meetings where there were none previously;

(f)       Definition  of  Vestry:     this  is  to  be  defined  for  the  first  time  in clause 8.1 together with acts done by the Vestry in clause 8.2;

(g)      Additional minor administrative matters.

[3]      As required by s 35 the Attorney-General has provided a report.  The report indicates that the Attorney-General is satisfied that the changes are administrative only.   Section 33 requires the court to be satisfied that the administration of the property, or the carrying out of the Trust can be facilitated by the variations sought. Facilitated according to the decision of Paterson J in Re Melanesian Mission Trust Board1 means “made easier, promoted, or helped forward”.

[4]      In light of the evidence filed and the report of the Attorney-General, I am satisfied that the test in s 33 is met.  I am also satisfied that there has been proper public notice of the proposed changes.

[5]      There is will be orders accordingly.

Williams J

1 Unreported, Paterson J, HC Auckland, 24 September 1998, M 1140/98.