TAUMARUNUI MUSEUM TRUST V RUAPEHU DISTRICT COUNCIL HC HAM CIV 2005-419-1374

TAUMARUNUI MUSEUM TRUST V RUAPEHU DISTRICT COUNCIL HC HAM CIV 2005-419-1374 31 July 2006IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2005-419-1374UNDER the Trustee Act 1956 IN THE MATTER OF The Taumarunui Museum Trust BETWEEN THE TAUMARUNUI MUSEUM TRUST Applicant AND RUAPEHU DISTRICT COUNCIL Respondent Hearing: 14 June 2006 Appearances: D J Taylor for applicant L Foley for respondent Judgment: 31 July 2006JUDGMENT OF ALLAN JSolicitors: Lamb Bain Laubscher, Te Kuiti sdaniels@lbllaw.co.nz Le Pine & Co, Taupo lfoley@lepine.co.nz Counsel D J Taylor, PO Box 19366, Hamilton[1] The Taumarunui Museum Trust (the Trust) was created on 1 June 1989 by a deed of trust made between the Taumarunui & District Promotion and Development Association Incorporated (the Society), and the persons named in the Schedule of Trustees who became the initial trustees of the Trust. In broad terms, the Trust was established to develop and operate a museum and associated facilities for the purpose of making available to the public, aspects of the history and heritage of the Taumarunui District. [2] The trust deed conferred upon the Society the power of appointment of trustees, and required that one-third of the trustees should retire in rotation each year. All retiring trustees are eligible for re-appointment. [3] The Society was removed from the Register of Incorporated Societies with effect from 4 November 1996. Thereafter, no machinery existed for the appointment and re-appointment of trustees to the Trust. Some of the trustees holding office at, or immediately prior to the dissolution of the Society, have continued to act as trustees. Others have been appointed since, in the circumstances described below. [4] As will appear, difficulties have arisen in connection with the administration of the Trust. As a result, the trustees sought the assistance of the respondent (the Council). Regrettably, the trustees on the one hand (or at least a majority of them) and the Council and persons associated with it on the other, have fallen out to some extent. Both the Trust and the Council have taken legal advice. The parties are agreed that it is necessary to address the lacuna arising by reason of the absence of any prescribed machinery whereby trustees may be validly appointed. [5] The parties are also agreed that the appropriate vehicle for restoring an appropriate appointment procedure is the making of an application under Part III of the Charitable Trusts Act 1957. Such application can be made only by validly appointed trustees. In the present application, made pursuant to s 51 of the Trustee Act 1956, the applicants seek an order appointing them to be trustees of the Trust for the primary immediate purpose of making application, pursuant to Part III of theCharitable Trusts Act, for the settlement of a scheme which will provide a mechanism for the appointment of trustees in the future. [6] The Council accepts that an application under s 51 of the Trustee Act is appropriate, but it opposes the application upon the basis that the applicants are not proper persons to be appointed. The Council has filed a cross-application in which it asks the Court to appoint a different group of proposed trustees. The issue for the Court is whether those who have applied in the name of the Trust, or the Council's candidates, should be appointed.The Trust Deed[7] Clause 7 of the trust deed deals with the appointment and responsibilities of trustees. It provides:7. Appointment and Responsibilities of Trustees (a) Number of Trustees The number of trustees shall be maintained at no fewer than six.(b) Appointment of Trustees The first trustees shall be those named as trustees in the Schedule of Trustees annexed hereto and thereafter the statutory power of appointment of new trustees shall be vested in the Society.(c) The trustees for the time being shall have power to appoint a casual trustee to replace any position as trustee vacated by the death, illness or resignation of any trustee. Before appointing any casual trustee, the trustees shall consult with the person, society or body in whom is vested the power of appointment for the vacated trustee position.(d) Term of Trustees(ii) Subject to the provisions of part (iii) of this subclause the trustees shall be appointed for a term not exceeding three years. (iii) The Society shall have power to remove any trustee or trustees from his, her or their office or offices and to appoint any other person or persons to be trustee or trustees in his or her stead. (iv) Trustees shall retire in rotation with one-third of the trustees (or the nearest whole number above one-third) retiring each year. Upon the initial appointment of trustees (sic) shall at their first meeting determine by lot those trustees who shall retire at the end of the first year, those trustees who shall retire at the end ofthe second year, and those trustees who shall retire at the third year. (v) All retiring trustees shall be eligible for re-appointment.(e) Responsibilities of Trustees The trustees shall proceed (i) To plan, organise and implement a museum project or projects in line with the long term development policy to be formulated by the trustees. (ii) To undertake such fundraising activities as the trustees think fit for the carrying out of its projects, (iii) To organise and conduct at such times as the trustees think fit such displays, exhibitions, excursions and activities relevant to the objects of the trust, (iv) To liaise with other persons and organisations as will tend to promote the objects of the trust, (v) To prepare and produce an annual report and statement of accounts in time for production to the annual meeting of the society in each year, (vi) To appoint not more than eight persons to be advisory non- voting trustees which appointments shall lapse after the period of one year provided however that any advisory trustee may be eligible for re-appointment.[8] There were 11 original trustees. They were the persons named in the schedule referred to in clause 7(b). The power of appointment of trustees was thereafter in the hands of the Society. Of particular importance for present purposes are the provisions of clause 7(d)(iii) and (iv), which provide for the retirement by rotation of one-third of the trustees in each year, and repose in the Society the power to re-appoint retiring trustees. Clause 7(d)(ii) confers a more general power on the Society to remove any trustee, and to appoint any other person in his or her stead. [9] Clause 11 of the deed empowered the trustees to apply for incorporation under Part II of the Charitable Trusts Act 1957. That occurred on 21 August 1989. The applicant is the incorporated Trust Board. It can act only through its trustees. It is common ground that no trustees, validly appointed in terms of clause 7 of the trust deed, now hold office.[10] Mrs Gilbert, chair of the Trust, swore affidavits in support of the application, and was cross-examined. Her evidence was that, prior to dissolution, the Society simply accepted the recommendation of the trustees in respect of trustees who were retiring by rotation, and who offered themselves for re-appointment, and that likewise, new appointments recommended by existing trustees were approved by the Society. [11] Over time the procedure became more streamlined, and eventually the need for formal approval from the Society appears to have been simply overlooked. The Trust held annual general meetings which were advertised in advance. Notice was given to the Society until it was dissolved. One-third of the trustees retired prior to each annual general meeting. Some stood for re-election. In addition, the trustees accepted nominations from the floor at the meeting itself. More than nine years have passed since the Society was dissolved. Given the stipulation for three year terms, it is some years since the last valid appointment was made. [12] There must accordingly be a question as to whether the present applicants, who are simply the trustees for the time being elected pursuant to the informal procedures outlined above, have any entitlement to bring proceedings in the name of the Trust. However, Ms Foley did not take the point. The Council's interest is in resolving, with the assistance of the Court, the current impasse.Factual background[13] For some years, it appears that the trustees were unaware of the absence of legal authority for the procedures they adopted in respect of the appointment and re- appointment of trustees. Late in 2002, when the Council's assistance was first sought by the trustees, the Council was likewise under a misapprehension. All concerned seemed to have thought that an entity known as Taumarunui Enterprises Incorporated (TEI), had succeeded to the rights, powers and obligations of the older society. The correct position seems to have emerged only after the parties took legal advice late in 2004, and in the early part of 2005.[14] The issue which prompted the trustees to turn to the Council was a matter quite separate from the problem which has generated this application. It is necessary to describe only briefly the issue which brought about the Council's involvement. [15] One of the original trustees was Mr Ron Cooke. The Trust's major asset is a two-storey commercial building in central Taumarunui. In 1991 it was sold by the ANZ Bank to the Trust in order to foster and promote local history and as a repository for the Trust's archives, artefacts, collections and so forth. Mr Cooke leased two rooms in this building, widely known in Taumarunui as the "Memory Bank", and for a significant time paid rent. Rental payments ceased in about August 1996, but Mr Cooke retained exclusive possession of the two rooms, from which he operated a small business, and in which he stores a significant volume of archival material and artefacts of some value. It is not known whether the property belongs entirely to Mr Cooke, or at least in part to those who have provided the material concerned to him, or to the Trust. [16] Mr Cooke now owes something over $10,000 in unpaid rent. He resigned as a trustee of the Trust on 25 November 2004. The remaining trustees were faced with something of a dilemma by reason of Mr Cooke's refusal to pay rent, or to afford the trustees access to the rooms occupied by him. He is highly regarded and has a history of long service to the Trust, and to historical and archival research in the Taumarunui area. He is commonly regarded as the de facto curator of the museum. The trustees preferred not to force the issue, and simply worked round him for a period of some years. [17] Ultimately however, the trustees concluded that something had to be done. In the first instance they approached TEI, which they believed to be the successor in law to the old Society. The Chairman of TEI indicated that the provision of proper annual financial reports would be sufficient compliance with any obligations owed by the trustees to TEI. That was of little assistance in the dispute with Mr Cooke, and accordingly, in December 2002, the trustees sought to involve the Chief Executive Officer of the Council, Mr Ryan.[18] Little of significance occurred in the first half of 2003, but in about July/August 2003, the Mayor, Mrs Morris, took a personal interest in the problem, and from there on endeavoured to assist the trustees to deal with Mr Cooke. Like the trustees, the Council met with limited success in that regard. [19] In August 2004 matters came to a head. On 18 August 2004 there was a committee meeting of TEI. The precise role of this body is not in evidence although Mrs Morris described it as a body involved in promotion and economic development in Taumarunui. I infer that it exists and operates, at least to some degree, under the auspices of the Council. Mrs Morris was present at the meeting, at which the affairs of the Trust were discussed. The relevant portion of the minutes of the meeting reads as follows:Museum TrustSue Morris reported to the meeting that the Museum Trust was in disarray as the trustees were unable to resolve personality problems within themselves. In the trust deed the TEI are the parent body and it is necessary that they take control. After discussion the following resolution was passed: 'That the Committee of Trustees cease all business operations of the Taumarunui Museum Trust with immediate effect and that the locks on the building be changed until all differences and issues between the trustees are resolved.' It was decided by the meeting that Craig was empowered to undertake to change the locks immediately and proceed with negotiations and any liaison necessary to effect the way forward with the above resolution.[20] The reasonable inference from the minute is that, the Mayor having reported upon the difficulties encountered by the trustees in dealing with Mr Cooke, the committee of TEI felt it necessary to step in and take control. In so doing, the committee seems to have been under the impression that TEI was the parent body of the Trust. Presumably that consideration underpinned its decision to take what can only be described as drastic action. [21] The resolution was duly implemented. Mr Russell, the chairman of the committee, took steps to change the locks and remove administrative and businessrecords from the Memory Bank building. At that point the trustees were effectively excluded from the building. [22] Shortly thereafter the Council sought advice from its solicitors as to the relationship between the Council, TEI and the Trust. On 30 August 2004, the solicitors concerned, Ferguson Bhullar & Scott provided a written opinion in which the Council was advised that there was no legal relationship between the Society and TEI; that the latter was not the legal successor of the Society, and that it had had no power to appoint or remove trustees. Properly, the solicitors advised that there should been an application to this Court for the appointment of new trustees, with a view to procuring a variation of the trust deed. [23] There followed a somewhat unhappy interregnum. The Council appointed a supervisor who was claimed by the trustees to be far too lax in his supervision of persons having access to the Memory Bank building. Subsequently the trustees took their own legal advice, consequent on which they themselves changed the locks on the Memory Bank building, resumed possession and secured what they could of the Trust property. [24] It appears however that certain records, including administrative records and documents, and accounting and financial information, are retained by the Council down to the present time. The trustees requested copies of those documents under the Official Information Act, but were met with a bureaucratic response, which demanded substantial sums for photocopying. [25] As I indicated to Ms Foley at the hearing, the legal advice which the Council obtained in August 2004 informed the Council in the clearest terms that neither it, nor TEI had any authority over the trustees; that being so, the retention of the documents concerned down to the present time is indefensible and does not reflect at all well on the Council. It is no answer to say that a doubt exists as to the validity of the appointment of the present trustees.The law[26] Section 51(1) of the Trustee Act 1956 provides:51 Power of Court to appoint new trustees(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.[27] It is not in dispute that this is an appropriate case in which the statutory jurisdiction of the Court to make appointments should be invoked, it being accepted on all sides that it has become "impracticable" to appoint trustees without the assistance of the Court. There being a plain statutory jurisdiction to do so, it is unnecessary for the Court to invoke its inherent jurisdiction to supervise the administration of trusts in general, and charities in particular. The discretion of the Court to appoint new trustees is not exercised in an unfettered and arbitrary manner. The principal rules upon which the Court will ordinarily act are: a) The Court will have regard to the wishes of persons by whom the Trust has been created if expressed in the instrument creating the trust, or clearly to be collected from it: re Tempest (1866) LR 1 Ch App 485. b) The Court will not appoint a person to be trustee with a view to the interest of some of the persons interested under the Trust in opposition either to the wishes of the testator or to the interests of others of the beneficiaries: Marshall v Sladdan (1849) 7 Hare 428. c) The Court will have regard to the question whether the appointment of a particular person will promote or impede the execution of the trust:re Tempestd) A person will not be appointed if to do so will place him or her in a position where his or her duty and interest might conflict: re Parsons[1940] Ch 973. [28] In this case the Trust instrument directed that there be not fewer than six trustees. The present application is for an order appointing five new trustees. While a stipulation as to the number of trustees contained in the Trust instrument would be a matter to be taken into account by the Court in the exercise of its jurisdiction, the Court is not bound by such a provision: re Tempest at p 491. [29] In the present case, given that the intention of the applicant is that the five trustees be appointed only for a limited time and primarily in order to make application pursuant to Part III of the Charitable Trusts Act 1957 for the establishment of suitable machinery for future trustee appointments, I am satisfied that the number of trustees for whom appointment is sought is not of itself a bar to the present application. Ms Foley does not argue that it is.Discussion[30] Mr Taylor submitted that the persons currently acting as continuing trustees ought to be appointed by the Court unless there is good reason not to do so. The Council's position, advanced through Ms Foley, is that there are good reasons not to appoint them. [31] I turn therefore to a consideration of the matters relied upon by the Council as constituting obstacles to the appointment of those on whose behalf the application has been made by the Trust. [32] The Council's first complaint is that the continuing trustees have failed to make themselves familiar with the provisions of the deed of trust and to appreciate the obligations which rested upon them thereunder. As I understand her, Ms Foley advances two quite separate arguments under this broad head. First, she submits that the continuing trustees ought to have knowledge of the formal requirements of thedeed with respect to the appointment and re-appointment of trustees, and to have carefully followed the terms of the deed. [33] There is no doubt that the law of trusts imposes upon trustees an obligation to become familiar with the provisions of the Trust instrument under which their powers and duties arise: Hallows v Lloyd (1888) 39 ChD 686, 691. Earlier I have described the way in which, over time, the trustee appointment process came to be undertaken independently of the Society. The continuing trustees do not argue that the appointment process in the latter years was valid, but Mr Taylor submits that it is not difficult to understand how the continuing trustees developed procedures which, although democratic, were not authorised by the deed of trust. [34] Without in any way excusing what has undoubtedly amounted to a breach of trust, I have a certain amount of sympathy for the continuing trustees whose work has been entirely voluntary, and undoubtedly carried on in good faith. Moreover, the position of the settlor of the Trust – the Society – must be considered. There is no evidence as to the circumstances in which the Trust had its genesis. Nor is there in evidence anything which assists the Court in gaining an understanding of how and why the Society felt it necessary to bring the Trust into being, save what can be gleaned from the Trust instrument itself. It might be thought quite remarkable that a Society which had gone to so much trouble to establish the Trust, should within a short time thereafter, permit itself to be dissolved, without regard to its continuing role in the appointment and re-appointment of trustees. Accordingly, while the intentions of the settlor, to be derived from the deed of trust itself, must be taken into account, they are perhaps entitled to less weight here where the settlor has, presumably voluntarily, abandoned its role in the continuing administration of the Trust. [35] Ms Foley is right however, to say that the continuing trustees ought to have become aware much earlier than they did, of the lacuna left by the dissolution of the Society, and that they ought not to have developed appointment procedures which departed from the requirements from clause 7 of the deed of trust. Had they focused on those requirements, then it may be that the dissolution of the Society would nothave occurred. But there is no evidence on the point and it is not profitable to pursue it. [36] The other aspect of Ms Foley's criticism stems from the way in which the continuing trustees have exercised their powers and responsibilities pursuant to the trust deed. In order to understand Ms Foley's argument, it is necessary to set out clause 2 of the deed, which reads as follows:2. Vesting of Property upon TrustsThe trustees shall as from the date hereof stand possessed of the Trust fund for such charitable purpose or purposes as they may from time to time determine in their absolute discretion and without limiting the extent of such discretion and merely by way of illustration the charitable purposes shall include the following: (a) To maintain, develop and operate a museum and facilities for the purpose of exhibiting and portraying to the public of New Zealand all aspects of the history and heritage of the Taumarunui district and the endeavour thereof, and matters relating thereto (b) To lay out grounds and to erect, purchase, convert or maintain buildings, halls or other structures suitable for exhibiting, storing and maintaining exhibits and for such other activities as may be related to exhibition and portrayal of the history and heritage of the Taumarunui district. (c) To obtain and hold in trust for the people of New Zealand all artefacts and exhibits, items and records of historical information and significance as in the opinion of the trustees are desirable to obtain for the purposes of the trust. (d) To arrange tours of exhibits, to sponsor and arrange addresses, demonstrations, exhibitions, excursions and tours and by these and other means to promote awareness of the history and heritage of the Taumarunui district. (e) To establish a river-heritage museum or centre specifically to foster an appreciation of the Wanganui River and its tributaries as they relate to the history and heritage of the Taumarunui district. (f) To promote facilities for the proper care and storage of the archives of the Taumarunui district. (g) Generally to establish a collection of historical information about the Taumarunui district and to promote the Taumarunui district through the medium of its history and heritage.[37] Ms Foley emphasised the width of the charitable purposes set out in clause 2, and in doing so referred in particular to clauses 2(a), (b) and (d), which focus uponthe public display of exhibits for the general purpose of promoting public awareness of the history and heritage of the Taumarunui district. [38] Mrs Gilbert produced in evidence a flyer distributed by the Trust in 1991, prior to acquisition of the Memory Bank building. It is an apparently multi-purpose document aimed both at publicising the aims and objectives of the Trust, and at raising funds in order to achieve the acquisition of the Memory Bank from the ANZ Bank. The flyer describes the broad objectives of the trust, and sets out a draft timetable, which includes the projected opening of an archives and records centre in April 1993, and a display area in the foyer of the building in October 1996. The flyer includes the following passage:However, while the preserved records will provide the raw resource for other activities, the Trust feels the 'museum' part of their project will provide the visual attraction. For example, the museum will feature a display area for the public to view photos, small artefacts and other memorabilia on particular themes The display area would also be made available to clubs, schools and other organisations who plan to hold jubilees, reunions or other special occasions.[39] Armed with that material, Ms Foley attacked Mrs Gilbert's evidence which broadly was to the effect that the continuing trustees did not see the Trust as primarily focused upon public displays, but rather upon archival research and genealogical investigation, with a view to collecting and safeguarding important records. In that way, Mrs Gilbert said, the social context of the history of the region could be better understood and preserved for future generations. [40] By way of illustration, it is convenient to reproduce a passage in Mrs Gilbert's reply affidavit which explains what the trustees see as the primary function of the Memory Bank.An archival museum, not a museum of antiquities3. One of the problems that the Museum Trust has experienced is that people expect the Museum to display antiquities. Sue Morris is one of those who think that the Museum should be open to the public to display antiquities. That was never the purpose of the Memory Bank. The very name was chosen because the Museum was originally set up and has continued as an archival or repository museum in Taumarunui.4. There are some six or seven museums of antiquities within half an hour's drive of Taumarunui. There is one at Ohura, one at Waimina, Ercegs Museum, Corbetts Museum, one at Ongarue, one at Raurimu and in Taumarunui itself there is the Tracks Museum which is a museum of railway memorabilia, and a specialised museum. 5. History is not just about the collection and display of antiquities, though that is what many people think of as the function of a museum. It is also about how people lived, thought and acted. There is a social component to history which is usually missing from museums which display antiquities. The Memory Bank was conceived as an archival and oral history museum, so that important records could be collected and preserved for future generations from which the social context of our history could be understood. From the written records left behind, and from the recorded recollections of those who lived through it. Such museums are rare in New Zealand. The best example is the Alexander Turnbull Library. This somewhat unconventional approach to history has meant, and continues to mean, that people do not fully appreciate just what activities the Trust is undertaking, and they think that the lack of public days means that there is nothing being undertaken.[41] Mrs Gilbert also describes in some detail, the rather more public face of the Trust's activities, including open days, regular monthly meetings, activities in conjunction with other organisations, the preparation of oral history tapes, the collation of archival records, the photography of fragile documents, and the handling of genealogical inquiries. [42] Those associated with the Council plainly regard the continuing trustees as amateurs who have pursued personal agendas, or interests, in a way which has led to a departure from the primary objectives of the Trust. [43] Mrs Morris produced a report obtained from an archivist at the Whanganui Regional Museum in March 2004. The report was procured by the Council for the purpose of reviewing the work of the trustees. The thrust of the report was that a great deal more needed to be done by the trustees if the original objectives of the settlor were to be achieved. The writer of the report advocated steps which would require the injection of very considerable resources; for example it was suggested that the Trust ought to appoint a committee of Memory Bank stakeholders and officials, and establish fiscal guidelines, including strategies for raising funds and maintaining income for the development of the Bank. The report writer alsosuggested that there were deficiencies in the cataloguing procedures adopted by the trustees which tended, so it was said, to render the collection relatively inaccessible. [44] Ms Foley complained that much of what Mrs Gilbert said in evidence amounted to no more than bare assertion – it was not supported by the production of appropriate records: for example Ms Foley submitted that the Court ought to have been provided with sample advertisements for past annual general meetings, rather than simply asserting that they had been held. [45] The applicant's response to that is to say that much of the documentary material formerly held by the Trust, is now in the hands of the Council. It is not profitable to investigate further the claims and counterclaims between the Trust and the Council as to the whereabouts of documents which might have been produced to the Court, but were not. I have no reason to disbelieve Mrs Gilbert's evidence on issues such as the history of the conduct of annual general meetings. [46] Ms Foley submitted that the trustees are in breach of the trust deed, in that they have failed to carry into effect all of the purposes of the Trust as set out in clause 2. In my view, her submission tends to overlook the opening words of clause 2 which provide that the trustees:Shall as from the date hereof stand possessed of the Trust fund for such charitable purpose or purposes as they may from time to time determine in their absolute discretion and without limiting the extent of such discretion and merely by way of illustration the charitable purposes shall include the following ... (emphasis applied)[47] The trustees have tended to emphasise the archival and genealogical aspects of the work for which the Trust was established, broadly for the reasons explained in the passage from Mrs Gilbert's evidence set out above. It cannot sensibly be contended that in so doing they are in breach of the trust, whatever different views may be responsibly be held as to the manner in which the Trust's activities might best be carried on. [48] The position of the Council is encapsulated at one point in the written synopsis prepared by Ms Foley. The relevant passage reads:25. There is a serious dispute that the trustees have done substantial and continuing work. There is no evidence of: 1. When the work was conducted and by which trustees; 2. Whether any public fundraising has occurred; 3. The trustees attempting to collect rent from Mr Cooke or otherwise resolve his issue; 4. Any long-term development or other planning; or 5. Compliance with the Whanganui Museum report. 26. There is evidence that Trust is ineffectual in terms of management and governance and importantly appears to operate only as an archive in conflict with the Trust Deed and the Trust's own early publications. 27. The Council does not wish to downplay the intentions of the de facto Trustees, it merely questions their capabilities to resolve the issues and move forward.[49] She submitted that under the continuing trustees, it was likely that any application under Part III of the Charitable Trusts Act would simply be "bogged down", as she put it. [50] Mr Taylor's response to this wide-ranging attack was to submit that none of it justified the appointment of the Council's candidates in preference to the continuing trustees. He submitted that the energies and resources of the Council would be better employed in supporting the continuing trustees, at least through the process of securing appropriate amendments to the deed of Trust by way of an application made under Part III of the Charitable Trusts Act. Thereafter, and once a satisfactory appointment mechanism has been secured, it will be open to those who have now agreed to offer themselves for appointment as trustees at the behest of the Council, to play a role in the Trust by offering themselves for appointment under the new protocol. [51] I agree with Mr Taylor. For all their faults the trustees are undoubtedly committed to activities which clearly fall within the overall objectives of the Trust. They have been entitled to focus on some aspects of the purposes of the Trust, to the relative exclusion of others, by reason of the wide discretion conferred upon them by clause 2 of the deed of trust. It is correct that they ought to have appreciated that thestrict appointment procedures provided for in clause 7 of the deed of trust were not being observed, but they were not assisted in that regard by the apparently informal approach of the Society to trustee appointments while it existed, nor by the decision to dissolve the Society in 1996. Changes in personnel among the trustees would not have assisted. [52] The complexity of the legal position, at least to lay people, is demonstrated by the assumptions (wrongly) made by TEI and by the Mayor in the first instance, over the right of TEI to assert authority over the Trust. Neither do I think the continuing trustees ought to be criticised simply because they do not possess the resources and expertise of the Council. Given the apparent absence of overt Council support over the years, it is not perhaps to be wondered at, that the trustees felt they had no alternative but to undertake such activities as were realistically achievable. [53] Mr Taylor is right to submit that the continuing trustees ought to be appointed, unless it can be demonstrated that there are good reasons which lead to a different conclusion. In my view there are no such reasons. Moreover, I am not at all certain that the Council is justified in adopting the adversarial stance evident in this case. Section 10 of the Local Government Act 2002 provides that the purpose of local government is:(a) To enable democratic local decision-making and action by, and on behalf of, communities; and (b) To promote the social, economic, environmental, and cultural wellbeing of communities, in the present and for the future.[54] The Council seems to have decided that those who have for some years been conscientiously carrying out the purposes of the Trust, at least to some degree, are not worthy of the Council's support and ought to be removed. [55] It is not immediately obvious why the Council has thought it necessary to oppose this application given the relatively limited objectives which lie behind it. The trustees seek appointment to enable them to make application under Part III of the Charitable Trusts Act 1957. Thereafter they accept that the trustees will be subject to appointment under whatever mechanism is incorporated into the amendeddeed of trust. That being so, unless there is some substantial obstacle to the appointment of the current trustees for that limited purpose, it seems to me that the application ought to be granted. I have not been persuaded that the matters raised by Ms Foley constitute such an obstacle. [56] The candidates for appointment proposed by the Council are clearly able and worthy in their own right, but I do not believe the Court would be justified in removing the present trustees at the behest of the Council, which until recently had played no role in the affairs of the Trust, and became involved only at the request of the trustees.Result[57] For these reasons I am satisfied it is appropriate to make an order under s 51(1) of the Trustee Act 1956, appointing Robert James Wheeler, Marilyn Carol Pickin, Ronald Algernon Rhodes, Stanley Richard Goodwin and Sarah Joan Gilbert to be trustees of the Taumarunui Museum Trust. There will be an order accordingly. [58] The order is made on the clear understanding that the primary immediate task for the trustees so appointed is the preparation of a scheme pursuant to Part III of the Charitable Trusts Act 1957. [59] During the hearing counsel appeared to be in broad agreement that such a scheme ought to be settled and placed before the Attorney General within a matter of months, and that the scheme ought to come before the Court for approval, at the very latest, within 12 months.Costs[60] Costs are reserved. I will consider memoranda if counsel are unable to agree.C J Allan J