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Charitable trusts, Charities, General, Variation

Expedient

Re Eliza White Board of Management considers the practical aspects of laying a scheme before the Court when a charitable trust’s purposes become “no longer possible, practicable or expedient.”

While fact specific the case provides useful guidance as to the matters to traverse in such applications.

Also see In the Matter of the Sefton Public Library where prior to laying a scheme before the Attorney General concerned parties sought the Court’s assistance to regularise the affairs of a charitable trust.  The background is as follows:

 

[6] By Deed dated 4 October 1923, the Trust was established for the operation of the library at Sefton. It set out the rules for the library and provided it was to be operated by a separate library committee. Land at Sefton was purchased for £50 to operate the library. The property is Part Rural Section 2355 more particularly described in Identifier CB388/1. A library building was constructed on the property to house the contents of the library.


[7] The library operated over many years. Changes in the trustees were not recorded on the certificate of title to the land and the last memorials date back to 1926. The distinction between the trustees and those serving on the committee was lost. Since around the 1970s the Trust and the committee have been treated as one. Some changes of the committee members have been minuted. The last meeting of the committee recorded the trustees were Denise Ann Lochhead, June Beryl Thompson and Anne Jones. Anne Jones has since indicated she does not wish to be a trustee. Lois Barbara Lochhead, who has formerly been a committee member, has offered to take on the role.


[8] Due to a lack of patronage the library was closed in November 1996 and has not re-opened. There is no demand for a library in Sefton and no funds to pay rates and insurance or maintain the land and building. As the library no longer operates the purpose of the Trust is not being fulfilled. For that reason, the plaintiffs considered it appropriate to take action for the sale of the library and the distribution of the proceeds for community purposes.

The court was satisfied that the requirements of s 51 of the Trustee Act was met. Noting at [15] and following that:

 … for the appointment of the plaintiffs as trustees are met. Under cl 17 of the Deed establishing the trust the trustees are to be appointed by the committee but that is problematic in this case due to uncertainty both as to the identity of the last trustees and those holding office as committee members. In terms of s 51, it is difficult or impracticable to appoint new trustees without the assistance of the Court.


[16] It is also expedient that the Court exercise its power to appoint the plaintiffs as trustees. The plaintiffs are the only persons who have shown initiative in taking steps to put the Trust’s affairs into order. There is a need for steps to be taken because the Trust is not fulfilling its charitable purpose, there is no longer any demand for a public library in Sefton and the proceeds of sale of the Trust assets should be applied to some other appropriate purpose in accordance with principles under the Charitable Trusts Act.

References:

  • Re Eliza White Board of Management [2019] NZHC 181
  • In the Matter of the Sefton Public Library [2020] NZHC 1735

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