ROHIT v DAYA [2023] NZCA 649

ROHIT v DAYA [2023] NZCA 649 [15 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA639/2022[2023] NZCA 649BETWEEN ASHOKBHAI ROHITAppellantAND MOHAN DAYARespondentHearing: 27 March 2023Court: Cooper P, Lang and Downs JJCounsel: M K Mahuika and T N Hauraki for AppellantA S Butler KC and P A Fuscic for RespondentJudgment: 15 December 2023 at 3.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B Mr Daya is entitled to costs calculated for a standard appeal in band Atogether with usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)Table of ContentsPara NoIntroduction [1]Relevant facts [5]The proceeding in the High Court [14]Issue one: the position of Swamiji of YDSNZ [17]Issue two: appointment of Sadhu Premswaroopdas as Swamiji [19]Issue three: the SGM [21]The arguments on appeal [26]Analysis [31]Issue one: Swami Hariprasadji's successor [32]Issue two: the validity of the SGM [59](a) Quorum [60](b) Evidential issues with votes [68](c) Members not fully informed [76](d) Election [86]Result [91]Introduction[1] This proceeding arises out of a dispute between members of theYogi Divine Society (NZ) Inc (YDSNZ). The appellant, Ashokbhai Rohit, soughtdeclarations in the High Court as to the person who should be regarded as the leaderor Swamiji of YDSNZ. The respondent, Mohan Daya, also sought declarations byway of counterclaim. Mr Rohit's application for declarations was unsuccessful.1Mr Daya succeeded.2 Mr Rohit now appeals.[2] YDSNZ was established to be the New Zealand arm ofthe Yogi Divine Society and forms part of the Yogi Divine Society global network. Itis convenient for present purposes to quote the following background from thejudgment of Venning J:3[11] The Worldwide Yogi Divine Society is based in Sokhada, India in thenorth-western state of Gujarat. The Swaminarayan movement goes back toits founder Lord Swaminarayan (born 1881) whom believers hold as amanifestation of God in the nineteenth century in Gujarat, India. He promisedto manifest himself in subsequent generations through individual saints, who,to believers, embody the spirit of Lord Swaminarayan. According to the YogiDivine Society, H D H Hariprasad Swamiji (born 1934) is the fifth guru-saint1 Rohit v Daya [2022] NZHC 2715 [High Court judgment] at [88].2 At [89].3 Footnotes omitted.in the line of Lord Swaminarayan. The Yogi Divine Society was started in1971 by H D H Hariprasad Swamiji, who had received initiation as a monk in1965 from his guru, Yogiji Maharaj, the guru of the BAPS Swaminarayanmovement. The Yogi Divine Society is distinct from the other threeSwaminarayan organisations, BAPS, GADI and ISSO. Centres of the YogiDivine Society are located in England, New Zealand, Canada, Berlin,Columbus, Ohio and New Jersey. Centres in India are in Mumbai (Bombay)with the main centre in Vadodara, Gujarat.[3] On 12 June 1978, a trust was registered under the Bombay Public Trust Act1950 (Maharashtra, India), with the name Shri Hari Ashram (the Indian Trust). Theoriginal declaration of trust appointed Swamishree Hariprasadji GurushreeGnayanjivadasji (Swami Hariprasadji) as the President of the Board of Trustees of theIndian Trust.4 The declaration provided that the Board of Trustees (which originallyconsisted of five persons, including Swami Hariprasadji) was to act in accordance withthe "wishes, desires and guidance" of the Advisory Board. Swami Hariprasadji wasempowered to determine the composition of the first Advisory Board, and it wasprovided that the Advisory Board was to be "presided over" by him or his successor(s).The President of the Advisory Board was: empowered to vary the composition of the Advisory Board by dropping outany member of the Board and/or appointing additional or new members ofthe Advisory Board as he may in his absolute discretion deem it necessary andfit.[4] YDSNZ was incorporated as a charitable trust under the Charitable TrustsAct 1957 on 12 December 2001. Under the terms of the YDSNZ Constitution, its aimsand objectives included: the establishment of an educational institution, a nursinghome and health centres; objectives concerning the practice of yoga; the establishmentof centres of physical culture; promoting community and educational developments;the building of a community hall in Auckland and other places in New Zealand; andthe coordination, organisation and implementation of basic support and advisory-typecommunity services.4 For clarity, throughout this judgment we have referred to the late Swamiji as"Swami Hariprasadji".Relevant facts[5] Swami Hariprasadji resigned as the President of the Indian Trust on5 October 2018. In his letter to the Secretary of the Indian Trust, he said:5 Presently, I am 85 years of age. I am not in a position to [adhere to] theresponsibilities as President in full, as my health remains ill and physicalweakness is increasing day by day. I request you to accept this letter ofresignation and relieve me from post of the President.[6] On the 18 October 2018, the Trust Board of the Indian Trust passed a resolutionaccepting Swami Hariprasadji's resignation and appointed Sadhu PremswaroopdasGuru Gyanjivandasji (Sadhu Premswaroopdas) as President of the Indian Trust.Mr Daya does not accept the appointment Sadhu Premswaroopdas as President of theIndian Trust and gave affidavit evidence at the High Court challenging its validity.[7] On 7 October 2019, the Secretary of the Indian Trust,Jayanthumar Mahadevprasad Dave, wrote to Mr Daya as President of YDSNZadvising of the appointment of Sadhu Premswaroopdas as President and Trustee of theIndian Trust. He asked Mr Daya to "initiate the necessary procedure to includeSadhu Premswaroopdas" as Swamiji in place of Swami Hariprasadji in theConstitution, Rules and Regulations of YDSNZ. Mr Daya says that he did not receivethe letter. The High Court found that nothing was done to recogniseSadhu Premswaroopdas as Swamiji of YDSNZ.6[8] On 11 November 2019, the Assistant Charity Commissioner ofVadodara Region in Gujarat made an order deleting Swami Hariprasadji as a Trusteeon the record of the Indian Trust. He noted:7 However, to enter the designation of President with the name of[Sadhu Premswaroopdas], who is registered as a trustee on the record of thistrust is an internal matter of the trust and so report to enter the designation ofPresident with his name is ordered to be filed.[9] Significantly, in early 2020 Swami Hariprasadji visited New Zealand where hemet with Mr Daya, Mr Rohit and other members of YDSNZ. He remained in5 We note that this letter was translated into English from Gujarati.6 High Court judgment, above n 1, at [16].7 We note that this order was translated into English from Gujarati.New Zealand for some months as a consequence of the COVID-19 lockdown. On5 June 2020, he met with Mr Daya and a number of other "devotees" including theSecretary of YDSNZ, Ramesh Maisuria. According to Mr Maisuria,Swami Hariprasadji said that, due to his deteriorating health, he wished the tworegional Saints (the Pradeshik Saints) to assume responsibility for the administrationof YDSNZ.8 Mr Maisuria said that he took notes of the Swamiji's instructions whichwere subsequently approved by the Swamiji and "notarized". He attached thetranslation to an affidavit that he filed in the High Court. That evidence was disputedby the appellant. However, if true, Swami Hariprasadji's action would have been atodds with the nomination of Sadhu Premswaroopdas as his successor.[10] Swami Hariprasadji passed away on 26 July 2021.[11] On 11 October 2021, Mr Daya, Mr Maisuria and other members of the originalExecutive Committee attempted to vary the YDSNZ Constitution pursuant to a deed ofvariation of trust (the Deed of Variation). The Deed of Variation purported to:(a) alter four of the charitable aims and objectives of YDSNZ;(b) alter r 4.1, the interpretation rule as follows:(i) the definition of "Swamiji" was changed to identify thePradeshik Saints as Swami Hariprasadji's appointedreplacement; and(ii) the "Pradeshik Saints" were defined as two named "RegionalSpiritual Leaders":(c) alter r 5.4, the rule specifying the role of Swamiji, to remove the powerof the Swamiji to appoint a successor and provide that, on retirement,8 Those identified as the Pradeshik Saints were Ashokkumar Bhulabhai Patel andSadhu Shasvatswaroopdas Guruhariprasaddas. The notes taken by Mr Maisuria refer toAshokbhai Patel and Shashwat Swami, but we have adopted the names as they appear in theaffidavit evidence of Mr Patel.all powers held by the Swamiji are exercised by the appointedPradeshik Saints; and(d) alter r 6.1.2, the executive and management rule, to remove Mr Rohitas a member of the Executive Committee.Venning J recorded a concession made by counsel for Mr Daya in the High Court thatthe changes purported to be made by the Deed were not validly made.9[12] In response, on 2 December 2021, Sadhu Premswaroopdas signed adeed of replacement and appointment (the Deed of Replacement and Appointment)purporting to remove and replace Mr Daya as President, as well as the other membersof the Executive Committee, and appoint Mr Rohit as President and the otherreplacement officers of the Executive Committee. Mr Daya, as well as a number ofothers who were former office holders, did not recognise that Sadhu Premswaroopdashad the status of Swamiji of YDSNZ and did not accept the validity of the Deed.[13] On 12 March 2022, the former officers purported to hold a Special GeneralMeeting (SGM). This meeting confirmed Mr Daya as the President of YDSNZ,recorded it did not accept Sadhu Premswaroopdas as the Spiritual Leader of theIndian Trust nor the changes he had attempted to make. Further, it resolved to changea number of rules in the Constitution.The proceeding in the High Court[14] Mr Rohit sought declarations in the High Court that:(a) Sadhu Premswaroopdas, successor to Swami Hariprasadji, is thecurrent President of the Indian Trust and the Swamiji of YDSNZ.(b) The Deed of Replacement and Appointment dated 2 December 2021was valid and effective in removing the former officers of YDSNZ and9 High Court judgment, above n 1, at [19], n 6.appointing Mr Rohit as President and the other replacement officers ofthe Executive Committee.[15] Mr Daya counterclaimed, seeking declarations that:(a) The resolutions adopted at the SGM (including confirmation of hisposition as President) were validly adopted.(b) The amendments to the Constitution are legally effective.(c) The other resolutions adopted at the SGM were validly adopted.[16] Despite the complex factual matrix, the Judge considered there were threeprincipal issues. They were:10(a) What is the nature of the relationship between the Indian Trust andYDSNZ, specifically, is the President of the Indian Trust also thesuccessor Swamiji of YDSNZ?(b) Did Swami Hariprasadji appoint Sadhu Premswaroopdas his successoras Swamiji?(c) If the answer to the first two questions was no, was the SGM held byYDSNZ on 12 March 2022 properly constituted and were resolutionsit passed valid?Issue one: the position of Swamiji of YDSNZ[17] The Judge first addressed the position of the Swamiji of YDSNZ. He acceptedfor the purposes of his analysis that Swami Hariprasadji resigned his position asPresident of the Indian Trust and that Sadhu Premswaroopdas was appointed Presidentof the Indian Trust.11 The question was whether Sadhu Premswaroopdas, by virtue ofholding his position, succeeded Swami Hariprasadji as Swamiji for the purposes of10 At [24].11 At [34].the YDSNZ Constitution.12 He considered there were a number of factors whichsuggested the appointment of Sadhu Premswaroopdas as President of the Indian Trustdid not lead to him being Swami Hariprasadji's successor as Swamiji of YDSNZ.13These may be summarised as:(a) There is a difference between the roles Swami Hariprasadji held asPresident of the Indian Trust and as Swamiji of YDSNZ. Under theIndian Trust, the President had a "hands-on" role as President of theBoard of Trustees. By contrast, the role of Swamiji of YDSNZ was toprovide direction and guidance, but not necessarily to engage in theday-to-day management of YDSNZ. The Judge noted that the Swamijiwas not President of YDSNZ; that role was fulfilled by Mr Daya.14(b) Rule 5.4 of the Constitution of YDSNZ provided for the Swamiji toretire and appoint a successor. That plainly related to his successor asSwamiji of YDSNZ, it was not related in any way to the presidency ofthe Indian Trust.15 While Swami Hariprasadji was empowered toappoint a person or person(s) to exercise his powers as Swamiji ofYDSNZ, if he did not do so, the Executive Committee was to have allthe former powers of the Swamiji of YDSNZ.16 It was significant thatthe rule expressly provided that no other Swamiji of India was toexercise the powers, but they would vest in theExecutive Committees.17[18] For these reasons, the Judge rejected the premise that the President of theIndian Trust, by virtue of his role, also holds the role of Swamiji for the purposes ofYDSNZ.18 In fact, the Indian Trust Deed confined the activities of the Indian Trust toIndia.12 At [34].13 At [37].14 At [38].15 At [39].16 At [40].17 At [40].18 At [47].Issue two: appointment of Sadhu Premswaroopdas as Swamiji[19] Turning to the issue of whether Swami Hariprasadji appointedSadhu Premswaroopdas as his successor, the Judge found there was no evidence hehad done so.19 In this respect, he noted that Swami Hariprasadji had explained he wasstanding down as President of the Indian Trust in October 2018 because of his age andhealth. Nevertheless, he was able to travel to New Zealand in early 2020 to meet with,engage with and provide guidance to the members of YDSNZ. That was entirelyconsistent with him still holding the position of Swamiji of YDSNZ.20 Further, therewas no mention or record of Swami Hariprasadji at any stage suggesting that he hadappointed Sadhu Premswaroopdas to hold the role of Swamiji of YDSNZ.21[20] The Judge also rejected an argument in advance by counsel for Mr Rohit thatthe Deed of Replacement and Appointment was valid and effective in removingMr Daya as President of YDSNZ and appointing Mr Rohit. The argument could notsucceed because Sadhu Premswaroopdas was not the Swamiji of YDSNZ and had noauthority to purport to remove Mr Daya and the other members of the Executive.22Issue three: the SGM[21] The Judge then turned to Mr Daya's application for declarations as to thevalidity of the 12 March 2022 meeting and resolutions.23 The Judge addressed thearguments raised by Mr Rohit under the headings of "Quorum",24 the "Notice ofmeeting",25 and the "Change in the rules" at the meeting.26[22] As to quorum, he held that r 12.6 of the Constitution was poorly worded andfundamentally defective, to the extent that effect could not be given to it.27 This meantthat there was no quorum requirement.28 Since the total votes cast represented19 At [48]–[49].20 At [49].21 At [50].22 At [56].23 At [57].24 At [73]–[79].25 At [80].26 At [81]–[87].27 At [76].28 At [76].95 per cent of the membership, the required majority to alter the rules of the YDSNZwas clearly met.29[23] As to the alleged invalidity of the notice of meeting, the Judge recorded theacceptance of counsel that if the actions of Sadhu Premswaroopdas seeking to set asidethe appointment of the President and Secretary were ineffective (as the Judge found)then the notice of meeting was on its face valid, as it had been issued by Mr Maisuria,the Secretary of YDSNZ.30[24] As to the issue concerning the change in the rules, he considered that theamendments made had simply elaborated the existing charitable objects of YDSNZ.31He also applied the principle that generally the Court would not intervene when thevote of the majority could rectify any irregularity in the proceedings.32[25] In the result, the Judge granted the declarations sought by Mr Daya, andrejected Mr Rohit's application.The arguments on appeal[26] In advancing the appeal Mr Mahuika, counsel for Mr Rohit, challenged theJudge's approach to the issue of succession to the position of Swamiji of YDSNZ. Hesubmitted this was largely a question of fact: whether and how Swami Hariprasadjexercised the power to appoint his successor.[27] Mr Mahuika claimed that the Judge had not properly assessed what occurredin relation to the steps taken to replace Swami Hariprasadji as president of theIndian Trust. He emphasised correspondence and resolutions in evidence concerningthe meeting of the Indian Trust on 18 October 2018. He submitted the clear legalposition was that Sadhu Premswaroopdas was the President of the Indian Trust andhaving assumed that role had replaced Swami Hariprasadji as Swamiji of YDSNZ.There is difference in practice between the roles of President of the Indian Trust and29 At [77]–[78].30 At [80].31 At [84].32 At [86] citing Swan v Massey University Students' Association [1972] NZLR 985 (SC) at 987–988; and Turner v Pickering [1976] 1 NZLR 129 (SC) at 141.Swamiji of YDSNZ. We deal with the details of Mr Mahuika's argument in thediscussion below.[28] The other issues pursued on appeal concerned alleged deficiencies with theSGM. The appellant claimed that the changes made were not valid because they hadeffectively sought to change and confirm members of the Executive Committeewithout holding a proper election, and did not comply with the requirements of theConstitution in terms of notice or quorum. Also, the evidence of the votes cast wasunclear, unverified and unsafe. In the circumstances, the shortcomings weresignificant and raised doubt as to the safety of the outcome.[29] For Mr Daya, Mr Butler KC's principal submission was that the Constitutionof YDSNZ, properly construed, makes it clear that YDSNZ is a separate entity to theIndian Trust. The definition of "Swamiji" in r 4.1, read together with r 5.4, meant thata "successor" could only be someone appointed by Swamiji before or after hisretirement. No other Swamiji of the Indian Trust could exercise powers reserved bythe YDSNZ Constitution and there could be no automatic transfer of power from theSwamiji to some other person as a consequence of a change of office in India. In anyevent, Mr Daya did not accept that Sadhu Premswaroopdas had been validly appointedas the President of the Indian Trust[30] Further, nothing in the Constitution prevented the members of YDSNZ fromchanging it. Mr Butler argued that the resolutions adopted by YDSNZ at the SGMwere valid and the arguments to the contrary were properly rejected by the High Court.Analysis[31] We first address the issue of the identity of Swami Hariprasadji's successor andthen address the grounds of appeal relating to the validity of the SGM.Issue one: Swami Hariprasadji's successor[32] First, we assess whether the President of the Indian Trust is also, by virtue ofthat role, Swamiji of YDSNZ.[33] Mr Mahuika criticised Venning J's reliance on a supposed difference in theroles of the President of the Indian Trust and Swamiji of YDSNZ. The Judge hadcontrasted the "hands-on" role of the President of the Indian Trust and the role ofproviding "direction and guidance" which the Swamiji had under the YDSNZConstitution.33 Mr Mahuika said that reasoning was wrong and overlooked theSwamiji's extensive powers of appointment under the Constitution, which wentbeyond mere direction and guidance.[34] We do not consider much turns on the extent of any difference in the roles ofPresident of the Indian Trust and Swamiji of YDSNZ. That issue cannot overcomethe conclusion to be derived from the rules discussed below.[35] Rule 4.1 of the Constitution defined "Swamiji" as meaning"Swami [Hariprasadji], the Spiritual Head of Shrihari Ashram, Sokhada,Taluka Baroda, India or his successor or any subsequent successor". On its face thatdefinition states that the Swamiji is Swami Hariprasadji; the subsequent wordsreferring to him as the Spiritual Head of Shrihari Ashram and so on appear mostnaturally to relate to Swami Hariprasadji himself, not to the role of Swamiji. Thewords "or his successor or any subsequent successor" again appear to link back toSwami Hariprasadji. If the intention had been to provide that the Swamiji wasSwami Hariprasadji in the first instance and thereafter anyone who succeeded him asthe person who was the Spiritual Head of the Indian Trust, a different form of wordingwould have been more appropriate to convey that meaning. We think the High Court'sinterpretation of the definition is correct and congruent with other provisions of theConstitution.[36] The role of Swamiji was set out in r 5. Rule 5.1 was in the following terms:5 1 Swami [Hariprasadji], the Spiritual Head of Shrihari Ashram,Sokhada, Taluka Baroda, India shall have sole authority to nominateand appoint for such time such persons as he thinks fit as President,Vice President, General Secretary, Treasurer, and committeemembers which shall be called the Executive Committee of theSociety. In the absence of such nomination an[d] appointment bySwamiji the Executive Committee shall be elected as set out inparagraph 7.33 At [38].[37] Although these words again describe Swami Hariprasadji as the Spiritual Headof the Indian Trust, the powers outlined are personal powers of Swami Hariprasadji,and are not conditional on him being in his role in respect of the Indian Trust. Rather,they relate to his position as Swamiji of YDSNZ, and are powers exercisable in thatrole, to appoint office holders in YDSNZ.[38] Under r 5.2, decisions of the Executive Committee of a major nature arerequired to be submitted to Swamiji for his approval and assent "in order to beeffective". No action in accordance with such decisions could be taken without theprior approval of the Swamiji. Under r 5.3, the Swamiji, if he thinks fit, has the powerto veto any resolution or decision of the Executive Committee or any other committee.We see these rules as neutral for the purposes of the present issue.[39] But r 5.4 was in the following terms:5 4 If Swamiji retires for any reason whatsoever all his powers reservedby these Rules and Regulations and the Constitution will be exercisedby such person or persons or committee as he may appoint before orafter his retirement and in such a way he may direct. In the absenceof such nomination or appointment the said powers will not beexercised by any other Swamiji of Shrihari Ashram, Sokhada,Taluka Baroda, India or persons, but will vest in theExecutive Committee, however due consideration shall be given tothe provisions of rule 12 5 herein at all times.[40] This rule is notable for a number of reasons. First, it makes no reference toSwami Hariprasadji's position as Spiritual Head of the Indian Trust, in fact noreference at all to the Indian Trust. The retirement is clearly as Swamiji for thepurposes of the Constitution of YDSNZ. Second, the rule provides for nominationsand appointments by the Swamiji, either before or after his retirement. While therecould be practical difficulties with appointments made after retirement, the significantpoint for present purposes is that the drafting underlines that the power was attachedto Swami Hariprasadji personally. Again, we consider it is clear that the "retirement"contemplated here is retirement of Swami Hariprasadji as Swamiji of YDSNZ: anongoing ability to exercise the r 5.4 powers is inconsistent with the idea that thesuccessor to the position of Spiritual Head of the Indian Trust is also Swamiji ofYDSNZ. If that is what was intended, it seems inexplicable that there should beprovision for this post-retirement exercise of powers, which he would notionally beexercising to the exclusion of his successor as Spiritual Head of the Indian Trust.[41] In addition, decisively, r 5.4 provides that if the Swamiji does not exercise thepowers of nomination and appointment, the powers are not to be exercised "by anyother Swamiji of Shrihari Ashram, Sokhada, Taluka Baroda, India or persons, but willvest in the Executive Committee". In other words, if Swami Hariprasadji did not makethe required nominations or appointments, the power to do so is exercisable by theExecutive Committee. The powers are specifically not to be exercised by the Swamijiof the Indian Trust. This part of the rule cannot make sense unless a distinction isdrawn between the roles of Swamiji of YDSNZ and the equivalent position in theIndian Trust.[42] Rule 6 dealt with the Executive Committee and Management. Rule 6.1.1provided that Mr Daya was to be the "first President nominated and appointed bySwamiji" and that he would "hold the said office until he is replaced by Swamiji".[43] Rule 6.1.2 appointed other persons to be the Vice President, General Secretary,Assistant Secretary and Treasurer of YDSNZ. They included Mr Rohit as the "firstAssistant Secretary". Fourteen other named persons were appointed as committeemembers by r 6.1.3. Rule 6.1.4 provided that the management of YDSNZ would vestin the Executive Committee and r 6.1.6 provided that the President would preside atall meetings of YDSNZ or the Executive Committee. Rule 6.1.7 provided that avacancy in membership of the Executive Committee or in any office would be filledby nominations of the Swamiji; in the absence of such nomination or appointment theExecutive Committee would "fill up the vacancy". There is nothing in r 6 whichdetracts from the conclusion we have reached about the meaning of the earlier rules.[44] Rule 7 dealt with elections of office-bearers and the Executive Committee inthe absence of nomination and appointment by the Swamiji. Rule 7.1 provided:7 1 In the absence of such nomination and appointment of theExecutive Committee by Swamiji due to the unavailability ofSwamiji for whatsoever reason or in the absence of any other personnominated or appointed pursuant to paragraph 5 4 and on the decisionof a three-quarter majority of the current Executive Committee thereshall be an election at the Annual General Meeting of the Society toelect the said officers of the Executive Committee which otherwisewould have been by Swamiji's nomination and appointment[45] This rule is a necessary provision to ensure r 5.4 is able to be applied. It ispredicated on the non-exercise by the Swamiji of the powers given by r 5.4 to appointother persons to exercise his powers of nomination and appointment of office-holdersand members of the Executive Committee under the Constitution, consequent on hisretirement. Rule 7.1 establishes how the Executive Committee is to exercise thepowers it assumes in these circumstances. The wording of the rule is not without itsdifficulties, but this is not significant for the present issues. It appears to contemplatethat a majority of three-quarters of the Executive Committee could exercise theSwamiji's powers to fill any vacancy in any office and that if such a majority cannotbe achieved the position would be filled by election at the Annual General Meeting.[46] Whatever its precise meaning, the importance of r 7.1 is that it provides howvacancies are to be filled when the Swamiji's powers have not been exercised underr 5.4. As with the other provisions we have discussed, r 7.1 is consistent with internalcontrol of the affairs of YDSNZ, not decision making in India.[47] For these reasons we consider the High Court was clearly correct to concludethat the President of the Indian Trust is not, by reason of holding that position, also theSwamiji of YDSNZ.34[48] Turning to the identity of Swami Hariprasadji's successor, we note extensiveaffidavit evidence was filed in the High Court, in which the parties offered conflictingaccounts of events that transpired in India following Swami Hariprasadji's resignationas President of the Indian Trust and in New Zealand during Swami Hariprasadji's visitto New Zealand in 2020.[49] Venning J discussed the evidence about whether Sadhu Premswaroopdas hadbeen validly appointed as the President of the Indian Trust.35 As he acknowledged, itis not generally possible to resolve conflicting affidavit evidence in a declaratory34 High Court judgment, above n 1, at [47].35 At [52]–[55].proceeding such as this.36 In the end the Judge considered it was unnecessary to decidewhether Sadhu Premswaroopdas was properly appointed as President of the IndianTrust because, whether or not that was the case, his appointment as President of theIndian Trust would not mean that, by virtue of holding that position, he would beSwamiji of YDSNZ.37[50] Mr Mahuika submitted there was no basis for the Court in New Zealand to lookbehind the formal record of what had occurred in India. The other argument advancedby Mr Mahuika was that although Swami Hariprasadji did not himself give notice toYDSNZ that Sadhu Premswaroopdas was to be his successor for the purposes of r 5.4of the Constitution, that was his clear intention in appointing him as President ofthe Indian Trust.[51] For the reasons we have already addressed, we consider the wording of therelevant rules in YDSNZ's Constitution establishes that YDSNZ was intended tofunction as a separate entity to the Indian Trust. It had its own requirements for themaking of appointments including the appointment of persons to exercise his powers.There is no basis for construing the Constitution as contemplating that the Swamiji'ssuccessor as President of the Indian Trust would, by virtue of such appointment, bethe Swamiji of YDSNZ. The specific proscription in r 5.4 of "any other Swamiji ofShrihari Ashram" (which must necessarily refer to a successor of Swami Hariprasadjion the Indian Trust) makes it inherently unlikely that the Constitution envisaged thesuccessor as President of the Indian Trust would be the de facto nominee. We considera specific nomination would be required to comply with the rule and establish thatSadhu Premswaroopdas was appointed as Swamiji of YDSNZ.[52] Mr Mahuika endeavoured to rely on the letter dated 7 October 2019 sent byMr Dave (the Secretary of the Indian Trust) to Mr Daya, which Mr Daya said he didnot receive. Mr Mahuika referred to the following paragraphs of the letter:This is to inform you that our Spiritual Master His Divine Holiness[Swami Hariprasadji] has resigned from the post of the President as well asthe Trustee of Shri Hari Ashram due to ageing and deteriorating healthconditions w.e.f. 05.10.2018. As per suggestion and wish expressed by36 At [26].37 At [55].[Swami Hariprasadji]; [Sadhu Premswaroopdas] is unanimously appointed asthe President of Shri Hari Ashram. Therefore, all the powers vested withSwamiji / [Swami] are entrusted to [Sadhu Premswaroopdas]. The necessaryofficial procedure is initiated in this regard.[Sadhu Premswaroopdas] is the successor of [Swami Hariprasadji], SpiritualHead of Shri Hari Ashram, Haridham, Sokhada, Ta.& Dist. Vadodara.Therefore, you are requested to initiate the necessary procedure to include[Sadhu Premswaroopdas] as Swamiji in place of [Swami Hariprasadji] in theConstitution, Rules & Regulations of Yogi Divine Society (NZ) under theCharitable Trust Act, 1957.[53] We agree with Mr Mahuika that whether or not Mr Daya received the letter isnot significant. For present purposes the issue is whether the letter establishes thatSwami Hariprasadji appointed Sadhu Premswaroopdas to be his successor as Swamijiof YDSNZ. We do not consider this letter can be viewed as the exercise bySwami Hariprasadji of his power of appointment under r 5.4. It plainly does not referto the appointment of Sadhu Premswaroopdas to be Swamiji of YDSNZ, but ratherrefers to his appointment as President of the Indian Trust. The letter seems to proceedon the assumption that Sadhu Premswaroopdas' succession as President of theIndian Trust automatically made him Swamiji of YDSNZ. That assumption wasincorrect, for the reasons we have explained above.[54] Mr Daya gave evidence that during Swami Hariprasadji's extended visit toNew Zealand in 2020 he spoke on 5 June to a meeting of "devotees" and "declaredand directed us that he wanted to hand over the responsibility of [YDSNZ] to the[Pradeshik Saints] which he appointed in 2013". This evidence was confirmed byothers who made affidavits in the High Court.38 Mr Mahuika was critical of thisevidence on various bases, including that the announcement had not beenforeshadowed, or once made not publicised, recorded nor reduced to written form.Neither was it clear that the Pradeshik Saints were to be the Swamiji's successors. Healso claimed that the two took no steps following the 5 June 2020 meeting to assumethe role of Swamiji and that the steps taken in relation to the Deed of Variationcontradicted the alleged appointment.38 For example, the affidavits of Ashokkumar Bhulabhai Patel, Sadhu SarvanamandasGuruhariprasaddasji and Ramesh Maisuria. Mr Patel being one of the Pradeshik Saints.[55] The issues raised by Mr Mahuika are not sufficient to persuade us to put asidethe evidence of those who were present at the 5 June meeting. According to the notesthat Mr Maisuria took, Swami Hariprasadji, referring to the Pradeshik Saints, said thathe wanted to "submit entire administration of this place to these two saints So, fromtoday we are assigning entire responsibilities of New Zealand Mandal(board) to thesetwo saints. As per the authority assigned to me by the constitution, I herebyhandover(responsibility) to these two saints and they shall take over this responsibilityfrom today." We think this evidence, if accepted, is a sufficiently clear nominationfor the purposes of r 5.4 of the Constitution of YDSNZ.[56] It is also telling that there is no evidence that Swami Hariprasadji, during hislengthy stay in New Zealand during 2020, made any reference to having nominatedSadhu Premswaroopdas to be his successor as Swamiji of YDSNZ. This is significantgiven Mr Rohit's claim that the appointment had occurred in October 2018. Mr Rohitgave evidence of having spent a good deal of time with Swami Hariprasadji during hisNew Zealand visit. He referred to the absence of any discussion with him about theappointment of the Pradeshik Saints; but he gave no evidence of any discussion withSwami Hariprasadji about the role of Sadhu Premswaroopdas. If anything, heconfirmed that he had not had such a discussion in saying that "[i]f theFormer President had wanted to make any constitutional changes, he would havediscussed it with all of the Executive Committee present".[57] In the result we are not persuaded that Sadhu Premswaroopdas was appointedby Swami Hariprasadji to be his successor as Swamiji of YDSNZ. Given our earlierconclusion that appointment of Sadhu Premswaroopdas as President ofthe Indian Trust would not make him the Swamiji of YDSNZ, we considerthe High Court was correct to decline the first declaration sought by Mr Rohit. It isunnecessary for us to consider and determine the additional arguments addressed byMr Butler challenging the appointment of Sadhu Premswaroopdas as President of theIndian Trust.[58] The signing of the Deed of Replacement and Appointment bySadhu Premswaroopdas on 2 December 2021 was a purported exercise of the powersof nomination and appointment of the Swamiji under r 5.4 of the Constitution ofYDSNZ. It follows from the conclusions we have already reached that the declarationsought by Mr Rohit, that the Deed was valid and effective, was rightly rejected by theHigh Court.Issue two: the validity of the SGM[59] Four issues were raised in the appellant's submissions concerning the SGM.He contended the resolutions passed at it were invalid and of no effect because:(a) the SGM did not have the required quorum of members present;(b) the evidence of the voting was "unclear, unverified and thereforeinherently unsafe";(c) the members were not informed of the nature and impact of the changesto the constitutional changes to be voted on, which meant the notice ofthe meeting was inadequate; and(d) the SGM sought to change and confirm members ofthe Executive Committee without holding a proper election inaccordance with the requirements of the Constitution.(a) Quorum[60] Rule 12.6 of the Constitution provides:12 6 The quorum of Annual General Meeting or a Special General Meetingof the Society will be three quarters (3/4) of the total number of themembers in the register, present in person, whichever is less[61] Venning J noted that the rule was fundamentally defective and could not begiven effect to, because it lacked a comparator for the purposes of ascertainingwhichever was the "less".39 He contrasted this with the equivalent rule for theYogi Divine Society of Mumbai, which required a quorum of "51 or 1/10th of the totalnumber of the members in the register, present in person, whichever is less".40 He39 High Court judgment, above n 1, at [76].40 At [75].rejected Mr Rohit's submission that "whichever is less" in the YDSNZ Constitutionwas a reference to rounding.41 As a result he held there was no quorum requirement.[62] YDSNZ has 390 members, of whom 364 cast votes either in person or byproxy. All votes were in favour of the changes proposed. The Judge recorded that250 members voted by proxy, and 114 members voted in person.42 He referred to r 9.1which provides that the Constitution may be altered:43 by resolution passed at a duly constituted General Meeting of the Societyby a majority of not less than three fourths of the members present in personor by proxy and entitled to vote [63] Because there was no effective quorum in the Constitution, he considered thatany quorum requirement could be achieved by voting by a majority of the members.44Rule 9.1 meant that members could vote by proxy and votes so cast could be takeninto account.45 In fact the total votes cast represented more than 95 per cent of themembers.46[64] Ms Hauraki, who presented this part of the argument on appeal, submitted thata reasonable interpretation of r 12.6 was that it required 293 members to be physicallypresent at a meeting for business to be validly conducted. Here, only 114 memberswere present either physically or by Zoom, about 29 per cent of the total membership.Consequently, there was no effective quorum.[65] We do not accept that argument. We think the Judge was right to put asider 12.6. Ms Hauraki's argument in effect seeks to apply the rule by rewriting it. Indoing so, she adds a requirement that three-quarters of the total membership must bephysically present. We think this overlooks the role of any quorum requirement, whichis to ensure that sufficient numbers of members vote in a process that is likely to result41 At [76].42 At [73].43 At [77].44 At [78] citing Mark von Dadelszen Law of Societies in New Zealand: Unincorporated,Incorporated, and Charitable (3rd ed, LexisNexis, Wellington, 2013) at [8.3.8] citing McColl vHorne & Young (1888) 6 NZLR 590 (SC); and The Mayor, Constables, and Co of Merchants ofThe Staple of England v The Governor and Co of the Bank of England (1887) 21 QBD 160(CA).45 High Court judgment, above n 1, at [79].46 At [78].in an effective representation of the views of the members. The result of Ms Hauraki'sargument is that all the proxy votes (250 in number) are effectively put to one side.[66] We consider that would be a very odd outcome given the fact that YDSNZ is anationwide body, and on this occasion, meetings were held in five different cities. Itis most unlikely the rules were intended to require three-quarters of the membershipto be physically present and be unable to vote by proxy. Further, as set out above,r 9.1 contemplates that alterations to the rules may be made "by a majority of not lessthan three fourths of the members present in person or by proxy and entitled to vote".If the threshold for alteration of the rules is three-fourths of the members who arepresent in person or by proxy, it is most unlikely that the quorum rule was intended toimpose a more stringent requirement.[67] We reject this ground of appeal.(b) Evidential issues with votes[68] This ground asserts that the voting data recorded in relation to the SGM is"extremely vague". Ms Hauraki suggested that there was insufficient evidence as tothe numbers of persons who were present or who voted by proxy. There was noevidence of who gave proxies, nor that those who provided proxies were in factmembers. Those present at the meeting were not identified and nor were those whovoted in person. As a consequence, it had not been shown that those who votedactually had voting rights. The minutes of the SGM did not provide further elucidationof these issues, simply noting the resolutions that were passed.[69] To these contentions, Mr Butler gave the simple rejoinder that the statement ofclaim had not raised any issue about the validity of the votes cast, and discovery hadnot extended to the ballot papers for the actual votes cast. On the other hand, therewas evidence of the number who voted in person, and those who voted by proxy.Referring to Calvert & Co v Dunedin City Council, Mr Butler submitted the minutesof the meeting are prima facie evidence of what occurred, and in this case the minutesestablished what the voting was.47 There was no reason to go behind them.47 Calvert & Co v Dunedin City Council [1993] 2 NZLR 460 (HC) at 466 cited with approval in[70] The evidence here consists not only a summary of the numbers of votes cast,differentiating between the five different locations where meetings were held,48 butalso gives totals of the votes cast according to whether they were cast in person or byproxy. In addition, the evidence of Mr Maisuria confirmed the position in thefollowing paragraph:I confirm that 250 proxies were submitted and 114 members were present atthe SGM on 12 March 2022, including members connecting to the SGM byZoom, the attendees being at Auckland, Tauranga, Gisborne, Wellington, andChristchurch. A total of 364 members' votes was given. All of those whovoted in support of passing the resolutions referred to in Annexures "A" and"B". This was a 100% vote in favour of all the resolutions by members whovoted, whether present or by proxy, out of approximately 400 members of theSociety. Himanshu Patel was present at the Auckland SGM and voted insupport of the resolutions. Ashokbhai Rohit never responded to thenotification of the SGM.[71] Mr Daya gave evidence to similar effect. There was no evidence to thecontrary. Mr Rohit was evidently not present and did not vote. The argumentpresented is essentially that the evidence was insufficiently detailed, but in the absenceof a contest raised by the evidence we are satisfied that the record is sufficient toestablish the votes cast.[72] We do not see this case as at all similar to Tamaki v Māori Women's WelfareLeague Inc,49 a case to which we were referred by Ms Hauraki. In that case theplaintiff, Hannah Tamaki (wife of Brian Tamaki and a pastor in the Destiny Church)sought to be elected as National President of the Māori Women's Welfare League, butthe League's Executive Committee resolved that her nomination should "not beactioned" in the forthcoming election.50 It determined that three existing and 10 newbranches of the League associated with Mrs Tamaki should not be permitted to vote.51[73] Kós J allowed an application for judicial review, finding thatthe Executive Committee acted unlawfully in withdrawing Mrs Tamaki's name fromBath v Singh [2012] NZAR 50 (HC) at [60].48 The evidence also records votes cast by proxy where members were in New Zealand, but not inthe five listed locations.49 Tamaki v Māori Women's Welfare League Inc [2011] NZAR 605 (HC).50 At [3].51 At [3].the ballot papers.52 He also determined that the League acted unlawfully by notsending ballot papers to three existing branches associated with the Destiny Church.53But he took a different view in respect of the decision not to send ballot papers to the10 new branches that had all been established on the same day.54 That was becausethe evidence regarding the formation of the new branches gave the Judge"considerable disquiet regarding their legitimacy".55 In fact the Judge identified 14different reasons, based on the evidence, for concluding that the new branches had notbeen properly established in accordance with the League's constitution.56[74] This case has nothing of that flavour. The evidence is all one way. There is nobasis on the evidence for us to reach a conclusion that the voting was not legitimateand did not have the outcome reported by Mr Maisuria and Mr Daya.[75] We reject this ground of appeal.(c) Members not fully informed[76] Under this heading, Ms Hauraki argued that there was no evidence thatmembers understood the "constitutional significance" of the proposed resolutions.They were effectively being asked to remove the ongoing role of the Swamiji andexplicitly reject Sadhu Premswaroopdas as having any role in YDSNZ. The role wasreplaced by the Pradeshik Saints. Ms Hauraki complained that the High Court hadcharacterised that change as an administrative one, whereas the change was significanthaving regard to the role of the Swamiji within the faith and the broader context withinwhich YDSNZ operates as part of the worldwide Yogi Divine Society network.[77] Ms Hauraki submitted members should have been told thatSadhu Premswaroopdas had been "legally recognised" as the President ofthe Indian Trust and also that he had been appointed to that role bySwami Hariprasadji prior to his passing. Other issues raised were thatExecutive Committee members had failed to mention the Deed of Replacement and52 At [59].53 At [77].54 At [77].55 At [67].56 At [67].Appointment; and incorrectly represented that Mr Rohit had resigned from his positiondue to illness and had been validly removed by the Executive Committee. That wasuntrue. No mention was made that the Constitution provided that the charitableobjects of the Society could not be altered.[78] Ms Hauraki submitted that the material provided prior to the SGM and sent outwith the notice calling the meeting was deficient in important respects and did notmeet the necessary standard set in r 9.1 of the Constitution: that the notice be capablein both substance and form of enabling a member to reach an informed decision onmatters to be presented at the meeting. Here, she argued in particular that:(a) It was not clear that the role of Swamiji's successor was being deleted.(b) No explanation was given that the impact of these changes would be tosever YDSNZ from the Indian Trust or that the powers under theConstitution that had been given to the Swamiji were now intended tobe given to the Pradeshik Saints.[79] Another complaint was that the Deed of Variation was proposed to be ratified,but no explanation was given as to why it was invalid. No mention was made of theDeed of Replacement and Appointment that had been signed bySadhu Premswaroopdas. In the absence of this information, Ms Hauraki argued thatit would be wrong to assume that members who participated in the vote fullyunderstood the impact of the changes they were making.[80] In response, Mr Butler submitted that the argument that members did notunderstand the constitutional significance of the proposed changes was contrary to theevidence. The resolutions had been distributed with the notice of the meeting, and theSGM lasted for some seventy-eight minutes. There was plainly discussion andcontributions from the floor. Members were free to speak and did so. Mr Maisuriaattached what he said was a "true copy" of the minutes of the meeting to his affidavit.He said that the meeting resolved to ratify the minutes of the special meeting held on22 September 2021 and adopted alterations to various rules listed in the minutes. Theminutes also record the ratification of the Deed of Variation, including ratification ofnew wording (attached to the minutes) for r 6.1.2 concerning Mr Rohit's "cessation ofoffice". Paragraph 5 and 6 of the minutes were in the following terms:5. The members of the society only accept Mohan Daya as the presidentof [YDSNZ]. And do not accept [Sadhu Premswaroopdas] as theSpiritual leader or successor or president of ShriHari Ashram,SOKHADA, taluka Baroda or Yds India. And further we do notaccept any appointment of any members for changes[Sadhu Premswaroopdas] is trying to Action for [YDSNZ].6. That the executive committee be empowered to make changes to theconstitution and rules of [YDSNZ] including but not limited to,keeping all powers and control of [YDSNZ] in the New Zealandexecutive committee with the provision of the Pradeshik Saints toprovide guidance and further make any changes to the structure of theSociety, either under the Charitable Trusts Act 1957 or theIncorporated Societies Act 1908.[81] Mr Butler argued that the resolutions did not alter the charitable objects ofYDSNZ, but rather "simply elaborated on the charitable objects of YDSNZ" as foundby the High Court.57 He also noted that the Deed of Replacement and Appointmentwas invalid because Sadhu Premswaroopdas had no power to make it. In thecircumstances, Mr Rohit had been validly removed but, in any event, that issue is notmaterial to the validity of the amendments to the Constitution. Since there was nomention of the Indian Trust in the Constitution prior to the amendments being made,and none thereafter, there was no link which needed to be formerly severed.[82] We agree with Mr Butler's submissions. We do so in light of our determinationthat Sadhu Premswaroopdas' status in respect of the Indian Trust did not automaticallymake him Swamiji of YDSNZ. The proposal for the removal of an ongoing role forSwamiji's successor was plainly and clearly understood as demonstrated by the termsof the resolution made. All who voted were in favour of that. It is not significant thatthat there was no reference to "invalidity" of the Deed of Variation; the issue ofimportance is that those at the meeting ratified it. We see no proper basis upon whichthe decisions made at the meeting can now be overturned.[83] We also agree that the resolution did not purport to alter the charitable objectsof YDSNZ. As Mr Butler pointed out, the Swamiji was not mentioned in the charitable57 High Court judgment, above n 1, at [84].objects; it followed that deleting reference to him or altering the definition of Swamijican have had no impact on the charitable objects of YDSNZ.[84] As to the Deed of Replacement and Appointment, we have already determinedthat it was invalid. The failure to refer to it in the notice of the SGM could not affectthe lawfulness of the business carried out.[85] Accordingly, we are not persuaded that there was any error in the processesfollowed and this ground of the appeal is also rejected.(d) Election[86] The final complaint made by Mr Rohit about the SGM is that it amounted toan election of the Executive Committee, by purporting to remove him from his role onthe Executive Committee and confirm Mr Daya as the President of YDSNZ.[87] The argument was that r 6.1.2 of the Constitution provides that all members ofthe Executive Committee will hold office until they are replaced by other personsnominated by the Swamiji. In the absence of such nomination and appointment, r 7.1required that an election should be held on the basis of a three-quarter majority of thecurrent Executive Committee. Ms Hauraki submitted that if either Mr Rohit orMr Daya's ongoing roles on the Executive Committee were in question, in the absenceof the Swamiji, the proper course would have been to hold an election in accordancewith the procedural requirements set out in r 12 of the Constitution, including callingfor nominations in accordance with r 12.4. Instead, the procedure adopted was anattempt to circumvent the election requirements by effectively altering thoseprovisions of the Constitution. Mr Butler noted that this was not an issue raised in theCourt below. We have nevertheless considered it.[88] We consider that r 6.1.2, on which Mr Rohit relies, only contemplates a processfor removal and replacement of the persons originally appointed to beGeneral Secretary and Treasurer. Mr Rohit was not the holder of either office but wasrather the Assistant Secretary. Therefore, it seems an election was not required underr 7.1. In addition, r 6.1.3 only contemplates a process for the removal and appointmentof the 14 named members of the Executive Committee, of which Mr Rohit is not one.Further, r 6.1.4 only provides for the replacement and appointment ofExecutive Committee members by the Swamiji in specific circumstances — toincrease the number of members of the Executive Committee.[89] We consider that the circumstances here — the removal and replacement of amember in circumstances where that member unsuccessfully attempted to install anexternal leader as Swami Hariprasadji's successor as Swamiji of YDSNZ — were notcontemplated by the Constitution. Therefore, r 7.1, requiring an election at the nextAnnual General Meeting of YDSNZ to elect new officers in the absence of nominationand appointment by the Swamiji, is not engaged.[90] For these reasons, we reject the arguments raised by Mr Rohit concerning theSGM.Result[91] The appeal is dismissed.[92] Mr Daya is entitled to costs calculated for a standard appeal in band A togetherwith usual disbursements. We certify for second counsel.Solicitors:Kāhui Legal, Wellington for AppellantMcVeagh Fleming, Auckland for RespondentPatel Nand Legal, Auckland for Respondent