The W R Williams Memorial for The Missions to Seamen Trust Board Incorporated

[2018] NZHC 867

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2018-485-134 [2018] NZHC 867

UNDER

the Charitable Trusts Act 1957

IN THE MATTER OF

A scheme submitted to the Attorney-General by the W R Williams Memorial for the Missions to Seamen Trust Board Incorporated

BETWEEN

THE W R WILLIAMS MEMORIAL FOR THE MISSIONS TO SEAMEN TRUST BOARD INCORPORATED

Applicant

Hearing:	30 April 2018
Counsel:	S P Gunatunga for Applicant
Judgment:	30 April 2018

JUDGMENT OF CHURCHMAN J

Introduction

[1]      By a Declaration of Trust bearing the date 29 June 1914, Mary Ann Williams established The W R Williams Memorial for the Missions to Seamen Trust Board Incorporated.  The purpose of the Trust was to engage in ministering to the material comfort and moral and spiritual wellbeing of seamen in the Port of Wellington and to conduct religious services in the Trust’s premises for the benefit of seamen upon Christian Protestant Evangelical lines or methods.

[2]      On 24 August 1977, the Supreme Court approved a scheme of variation relating to the property of the Trust.

THE W R WILLIAMS MEMORIAL FOR THE MISSIONS TO SEAMEN TRUST BOARD INCORPORATED [2018] NZHC 867 [30 April 2018]

The application

[3]      By notice of originating application dated 21 February 2018, the applicant applied for approval of a scheme under the Charitable Trusts Act 1957 (“the Act”). This sought amendment to the charitable purpose of the Trust pursuant to s 32 of the Act, and modification of the powers of the trustees and mode of administration of the Trust pursuant to s 33 of the Act.

[4]      The grounds upon which the amendments sought were that:

(a)It is impossible or impracticable or inexpedient to carry out an aspect of the original purpose of the trust.

(b)      The amended purpose remains charitable.

(c)The amended purpose accords as nearly as possible with the terms of the original trust.

(d)The administration of a trust could be facilitated by varying the powers of the trustees of the trust.

[5]      In essence, the application seeks a variation to the wording in the trust deed limiting the conduct of religious services for seafarers “along Christian Protestant and Evangelical lines”.

[6]      The stated basis for this is that “modern seafarers now have a diverse range of beliefs” and “the overall number of seafarers has decreased, due in part to smaller size of ships and seafarers spending less time in port”.

[7]      An affidavit of M J van Voornveld filed in support confirmed that the proposed variation would not affect the range of seafarers who can use the Mission to Seafarers’ premises as the Mission to Seafarers has never turned away non-Christians.

[8]      In relation to the proposed amendments to provide a clause indemnifying the trustees for any conduct and duties carried out in connection with the Trust provided

they have not acted dishonestly or otherwise have intentionally committed a breach of the Trust and the clause giving the trustees the power to vary the administrative and managerial terms of the Trust, the grounds relied on were that these changes would facilitate the administration of the Trust by bringing it more in line with modern charitable trusts and allowing the trustees to respond to changing circumstances without having to return to court.

[9]      The trustees also applied under s 33 of the Act to replace all references to

“Missions to Seamen” with “Mission to Seafarers”.

[10]     Virginia Hardy, Deputy Solicitor-General, provided a report to the Court under

ss 35 and 56 of the Act.

Analysis

[11]     The jurisdiction of the Court to vary the terms of a trust is based on s 32 of the Charitable Trusts Act 1957.   Where the Court finds that it is impossible or impracticable or inexpedient to carry out the terms of the trust as directed by the settlor, the court owes a duty to the settlor of the trust property to dispose of an application such as this as nearly as possible in accordance with the intentions of the settlor in establishing the trust.1

[12]     The principles relating to amending administrative provisions of a trust are found in s 33 of the Act which provides that if it appears that the administration of any property or income held upon trust for any charitable purpose could be facilitated by extending or varying the powers of the trustees, the Court may extend or vary those powers.

[13]     The Court has held that the threshold for the use of the Court’s powers under s 33 is that:2

It is necessary for this Court to be satisfied that the administration of the property or the carrying out of the Trust “could be facilitated” by the variation

1      Re Whatman, High Court Wellington 6 July 1965, Thompkins J.  See also Re Twigger [1989]

3 NZLR 329; and Re Tennant [1996] 2 NZLR 633.

2      Re Melanesian Mission Trust Board, High Court Auckland M1140/98, 24 September 1998, Paterson J.

sought.   The ordinary dictionary meaning of “facilitate” is “made easier, promoted or held forward”.

[14]     Based on the affidavit evidence provided, I am satisfied that it is “impossible, impracticable or inexpedient” to carry out that part of the purposes of the Trust limiting the religious services it can provide to seafarers to those “along Christian Protestant Evangelical lines”.

[15]     I am satisfied that, as varied so as to delete the requirement to conduct specific religious services, the purposes of the Trust remain charitable, and are sufficiently close to the charitable purposes in the original trust deed so as to justify amendment. The Mission to Seafarers is still required to minister to the spiritual wellbeing of seafarers in the Port of Wellington, albeit now irrespective of their faiths and denominations.

[16]     In terms of the proposed alteration to the mode of administration, I am satisfied that what is proposed falls within the type of amendments that have been proved by courts in relation to similar applications in the past.3

Conclusion

[17]     Being satisfied that the amendments sought pursuant to ss 32 and 33 are in accordance with the provisions of that Act, I approve the amendments and the form of the draft order approving the Scheme under the Act filed with the court and dated

21 February 2018.

Costs

[18]     As per the draft order dated 21 February 2018, all reasonable costs and expenses and incidentals to the preparation, perusal and advertising of the Scheme and submission of it to the Attorney-General and to this Court, including the costs of solicitors acting and counsel retained, are to be paid out of the Trust fund, which is to also contribute $750 to the costs incurred by the Attorney-General.

3      Re Neil Barr Farm Forestry Foundation [2014] NZHC 2324; Re Brooks [2015] NZHC 950; and

Auckland Observatory and Planetarium Trust Board [2017] NZHC 1224.

Churchman J

Solicitors:

Morrison Kent, Wellington