Tawhiri Trust Board - [2025] NZHC 390

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2024-442-000028

[2025] NZHC 390

IN THE MATTER of the Charitable Trusts Act 1957

AND

IN THE MATTER

of an application by THE TAWHIRI TRUST BOARD, a duly incorporated charitable trust board having its registered office at C/O Glasgow Harley, Solicitors, 43 Halifax

Street, Nelson, for an order consenting to the sale of trust property

Hearing: 18 February 2025 (via AVL/VMR)

Counsel:

J B O’Meagher for Applicant

S M Kinsler and C E Sinclair for Attorney-General

Judgment:

5 March 2025

JUDGMENT OF LA HOOD J

Introduction

[1] This is an application by the Tawhiri Trust Board for an order consenting to the sale of trust property under s 21(1)(b) of the Charitable Trusts Act 1957 (the Act).

[2] I have been greatly assisted by the report of the Attorney-General dated 10 April 2024 confirming that the Attorney-General is satisfied that the proposed sale of the trust property is proper and can be approved.

THE TAWHIRI TRUST BOARD [2025] NZHC 390 [5 March 2025]

Background

[3] The Tawhiri is a classic yacht built in 1933. She was raced in Nelson and garnered a degree of attention for winning two races from Wellington to Lyttleton. By 2006, however, she was effectively abandoned at anchor in Oamaru Harbour.

[4] A Nelson businessman, Mr Sturgess, purchased the Tawhiri in 2006 and returned her to Nelson. In 2008, the Tawhiri Trust (the Trust) was settled to fund the restoration of the Tawhiri, with the intent that the yacht be operated for the benefit of “the Sailing Youth of Nelson/Tasman”.

[5] The Trust initially leased the Tawhiri from Mr Sturgess’ company until it became apparent that the Trust would require legal title to the yacht in order to apply for funding. The Tawhiri was accordingly gifted to the Trust in 2012.

[6] The Trust struggled to secure funding for the restoration of the Tawhiri, which at the time was estimated to cost over $200,000.1 The yacht was in storage on council- owned land at Port Nelson where, despite being under cover, it was deteriorating rapidly. The trustees have explained that if the Tawhiri is to remain the property of the Trust, “its only future is to fall into total ruin”.2

[7] The Trust was approached by Mr Markham, whose family at one point owned the Tawhiri. In late 2022, with the consent of the Trust, Mr Markham funded and arranged for the Tawhiri to be removed and shipped from the Nelson Marina to covered storage in Auckland. This was completed in order to prevent further deterioration and as the Marina could no longer provide for her cost-free storage.3

[8] In 2023, Mr Markham set up the Historic Wooden Boat Charitable Trust (the HWB Trust), incorporated it as a charitable trust board with the Companies Office and registered it for charitable status with Charities Services.4

1 It is now estimated to cost over $300,000.
2 Memorandum of Counsel for the Applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 390
Decision Date: 5 March 2025

CaseChat Overview and Summary

The Tawhiri Trust Board applied to the High Court for consent to sell the Tawhiri, a classic yacht gifted to the Trust in 2012, to the Historic Wooden Boat Charitable Trust Board, which has purposes closely aligned with the original trust. The Trust had been struggling to secure funding for the restoration of the yacht, which was deteriorating in storage. The Court’s consent was required because it was essential for the Trust that the yacht be used for its purposes. The Attorney-General was satisfied that the proposed sale was appropriate as the Trust was not viable due to insufficient capital and cost pressures.

The legal issue was whether the Court should approve the sale of the yacht, given that it was essential for the Trust that the yacht be used for its charitable purposes. The Court considered whether the sale would honour the spirit and intention of the Trust, noting that a variation of the Trust’s purposes would not assist the Board to continue, given the specific objects of the Trust and the Board’s financial position. The Court also considered that the HWB Trust would maintain the yacht for the benefit of New Zealanders and in particular New Zealand youth, thereby fulfilling the original trust’s purpose.

The Court found that the proposed sale of the Tawhiri to the HWB Trust was appropriate because the Trust in its current form was not viable due to ongoing insufficient capital with no ability for the trustees to safely store the Tawhiri due to cost pressures. The Court also found that the HWB Trust's purposes aligned closely with the original trust and that the sale was the best way of ensuring the objects of the Trust could be carried out in future. The Court approved the sale and ordered the Tawhiri Trust Board to meet the Attorney-General’s costs for preparing her report in the sum of $750.00.

The Court ordered the sale of the Tawhiri to the Historic Wooden Boat Charitable Trust Board to be approved.

Orders