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Charitable trusts, Charities, inherent jurisdiction, Review of the Law of Trusts, Termination, Variation

Termination – a bridge too far?

An Application by the Roman Catholic Bishop of the Diocese of Hamilton explores the question as to whether the Court has the power pursuant to its inherent jurisdiction to wind up a charitable trust (and by default the interplay between s 64 of the Trustee Act 1956 and s 33 of the Charitable Trusts Act 1957).  The application was made in the context of orders under s 64 of the Trustee Act 1956 that would allow the original capital of the Trust to be distributed, and the Trust to be wound up.  The Trust in question had distributed all but its original capital by way of a one off donation to a Seminary in Suva.  While not specified in the judgment, it is inferred that the application was required due to difficulty in meeting the purposes of the Pacific Fathers Trust (the Trust), which was settled in 1967 and was the subject of the application.

The law relating to the variation and termination of charitable trusts was usefully summarised by Toogood J in Friends of the Auckland Art Gallery Acquisitions Trust v Friends of the Auckland Art Gallery Incorporated as follows:

“[15] Although the Court has jurisdiction to vary a charitable trust, the general rule is that such a trust cannot be terminated. There are, however, three exceptions to the rule:

(a) Where the trust is set up in such a way that the property is applied for charitable purposes for a limited duration and the trustees are given express powers to terminate.
(b) Where a charity that has the power to expend both income and capital no longer has funds.
(c) Where the objects of the charity are dependent on the existence of a particular institution or premises.

[16] Furthermore, a trust may come to an end if the trust deed allows the trustees to wind up the trust without outside intervention; if the trust is a society incorporated as a board; or if the society and trustees were incorporated on just and equitable grounds.”

In Friends of the Auckland Art Gallery Acquisitions Trust v Friends of the Auckland Art Gallery Incorporated Toogood J found that the jurisdiction under s 64 of the Trustee Act allowed the Court to amend a trust deed of a perpetual charitable trust in a manner which is arguably contrary to the perpetual nature of the trust.

In the Application by the Roman Catholic Bishop of the Diocese of Hamilton, while not determining the point, Edwards J was of the view that the better course of action was that the matter be addressed by a scheme pursuant to Part 5 of the Charitable Trusts Act 1957 (the CTA).  As Edwards J noted at [16] and [17]:

[16] Under Part 3 of the CTA, trustees may prepare a scheme for the Attorney General, who can suggest amendments and will prepare a final report. Before any application is considered by the Court, notice of the scheme must be published in the Gazette and in a local newspaper. Opportunities must be made for any person to oppose the scheme. The report is then put before the Court to consider whether to approve it in accordance with Part 5 of the CTA.

[17] Those statutory processes are designed to protect the interests of all those who may be affected by the termination of a perpetual Trust. Given I am not prepared to make an order under s 64 of the Trustee Act amending the Trust deed so as to provide for its termination, it is a process that the Trustees will need to follow in order to bring the Trust to an end in any respect. In the particular circumstances of this case, I consider it appropriate that the distribution of capital also be addressed in any scheme to be prepared in accordance with the CTA, rather than authorised, as an interim step, by an order under s 64 of the Trustee Act.

It is noted that s 33 of the CTA expressly provides that “.. nothing in this section shall restrict the powers that are or may be conferred on the court or the trustees by or under the Trustee Act 1956 or any other Act …” It also remains to be seen whether section 125 of the Trusts Act 2019, which will come into full force and effect on 30 January 2021, which provides that the court has the power to waive the requirement of that a beneficiary consent to the termination of a trust under section 121 of the Trusts Act  or the variation or resettlement of a trust under section 122.

References:

  • Application by the Roman Catholic Bishop of the Diocese of Hamilton [2019] NZHC 1255
  • Friends of the Auckland Art Gallery Acquisitions Trust v Friends of the Auckland Art Gallery Incorporated [2018] NZHC 1768
  • Charitable Trusts Act 1957
  • Trustee Act 1956

 

Discussion

One thought on “Termination – a bridge too far?

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    jean@landlaw.co.nz

    Tony Harvey
    Director/Principal
    Holloway Harvey Law Limited
    PO Box 15640
    Tauranga 3144
    Email: tony@landlaw.co.nz

    Our office is now physically closed due to the COVID-19 situation.

    All our staff are now working from home and we will continue to work through the lockdown period.

    Thank you for your patience as we work through these unusual times together.

    Stay safe and be kind

    Posted by Tony Harvey | April 14, 2020, 11:39 am

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