THE GENERAL TRUST BOARD OF THE DIOCESE OF AUCKLAND V THE KAWAKAWA BAY COMMUNITY CHURCH CHARITABLE TRUST HC AK CIV 2009-404-002172

THE GENERAL TRUST BOARD OF THE DIOCESE OF AUCKLAND V THE KAWAKAWA BAY COMMUNITY CHURCH CHARITABLE TRUST HC AK CIV 2009-404-002172 19 October 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-002172UNDER Section 143 of the Land Transfer Act 1952 BETWEEN THE GENERAL TRUST BOARD OF THE DIOCESE OF AUCKLAND Applicant AND THE KAWAKAWA BAY COMMUNITY CHURCH CHARITABLE TRUST Respondent Hearing: 29 June 2009 and 9 July 2009 Counsel: B W Morley/A Murray for applicant M R Crotty/M F Noon for respondent Judgment: 19 October 2009 at 5:30pmJUDGMENT OF ASSOCIATE JUDGE ABBOTTThis judgment was delivered by me on 19 October 2009 at 5:30pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy RegistrarSolicitors: Hesketh Henry, Private Bag 92093, Auckland 1142 for applicant Russell McVeagh, PO Box 8, Auckland 1140 for respondent[1] The General Trust Board of the Diocese of Auckland (the GTB) is the registered proprietor of a church and hall at 7 Kawakawa-Orere Road, Kawakawa Bay. It has applied for removal of a caveat lodged by The Kawakawa Bay Community Church Charitable Trust (the Community Trust). The GTB has sold the property, subject to the caveat being removed. [2] The Community Trust says that the Kawakawa Bay community has a beneficial interest in the land arising out of contributions made by members of the community in 1957 to the cost of the purchase of the land and the construction of the building. It contends that the caveat should remain until its claim to a beneficial interest in the property has been determined (it has already issued a proceeding seeking a declaratory judgment as to its interest). [3] I find that the caveat does not comply with s 137(2) of the Land Transfer Act 1952. I also find that the Community Trust does not have an arguable case for a caveatable interest (it has not established an arguable case for the institutional constructive trust which it claims).Background[4] The GTB holds property on trust for the religious and charitable purposes of the Anglican Church. The Anglican community of Kawakawa Bay and its immediate surrounds are part of the Clevedon Parish within the Diocese of Auckland. [5] The land was purchased by the GTB in 1955 for the purpose of building a church and hall in Kawakawa Bay. A building comprising both church and hall was constructed on the land between 1956 and 1957. It became known as St Anne's. The property was dedicated as an Anglican Church in 1957 and was used for Anglican services from that time until 2005. It was also used intermittently by other groups, and other denominational groups (particularly by members of the Presbyterian Church).[6] After regular Anglican services ceased in 2005 the GTB had lengthy negotiations with the Presbyterian Church about possible purchase or lease of the property. After those negotiations ended unsuccessfully in 2008, the GTB put the property on the market for sale. [7] A group of local residents decided to challenge the GTB's right to sell it. They formed the respondent trust in October 2008, and in December 2008 lodged the caveat that is the subject of this proceeding. The caveat claims an interest in the property by virtue of an implied trust whereby the caveator is the beneficiary and the Registered Proprietor the General Trust Board of the Diocese of Auckland is the Trustee.[8] In March 2009 the GTB entered into an agreement for sale and purchase of the property to a third party, conditional on the caveat being removed. It filed this application for removal of the caveat on 16 April 2009. [9] The Community Trust issued a proceeding in this Court on 23 June 2009 seeking a declaration that the GTB holds the property on trust for the Kawakawa Bay community or, alternatively, that the GTB transfer the property to the Community Trust on trust in perpetuity for the benefit if the Kawakawa Bay community.Applicable legal principles[10] The legal basis for lodging a caveat is to be found in s 137 of the Land Transfer Act 1952. The relevant parts of that section read:Caveat against dealings with land under Act(1) Any person may lodge with the Registrar a caveat in the prescribed form against dealings in any land or estate or interest under this Act if the person— (a) claims to be entitled to, or to be beneficially interested in, the land or estate or interest by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise; or (b) is transferring the land or estate or interest to any other person to be held in trust. (2) A caveat under this section must contain the following information: (a) the name of the caveator; and (b) the nature of the land or estate or interest claimed by the caveator, which must be stated with sufficient certainty; and (c) how the land or estate or interest claimed is derived from the registered proprietor; and (e) the land subject to the claim, which must be stated with sufficient certainty.[11] The application is brought under s 143 of the Land Transfer Act 1952:143 Procedure for removal of caveat(1) Any such applicant or registered proprietor, or any other person having any registered estate or interest in the estate or interest protected by the caveat, may, if he thinks fit, apply to the High Court for an order that the caveat be removed. (2) The Court, upon proof that notice of the application has been served on the caveator or the person on whose behalf the caveat has been lodged, may make such order in the premises, either ex parte or otherwise, as to the Court seems meet.[12] The principles which the Court applies when determining applications for removal (or sustaining) of a caveat are well established and are not in dispute. The important principles of application in the present case are: a) A caveat is a creature of statute and may be lodged only by a person upon whom a right to lodge it has been conferred by the statute. It is not enough to show that the lodging and continued existence of thecaveat would in some way be advantageous to the caveator:Guardian Trust and Executors Company of New Zealand Limited v Hall [1938] NZLR 1020, 1025 b) The Court will order removal of a caveat if the caveator did not have a valid ground for lodging it or if the interest which initially justified it no longer exists: Sims v Lowe [1988] 1 NZLR 656, 659-660; c) The caveator must establish a reasonably arguable case or an interest coming within s 137 of the Land Transfer Act 1952: Castle Hill Run Limited v NZI Finance [1985] 2 NZLR 104. d) The summary procedure for removal of a caveat "is wholly unsuitable for the determination of disputed questions of fact". An order for removal will not be made unless it patently clear that the caveat cannot be maintained: Sims v Lowe op cit. e) The Court has a wide discretion under s 143, to be exercised in all the circumstances of the case. Delay is a relevant factor, particularly where a registered proprietor can show specific prejudice: Varney v Anderson [1988] 1 NZLR 478. f) The Court retains a discretion to make an order removing a caveat, even where the caveator can properly claim a caveatable interest, although that discretion will be exercised cautiously. An order for removal will only be made where the Court is completely satisfied that legitimate interests of the caveator will not thereby be prejudiced:Pacific Homes Limited v Consolidated Joineries Limited [1996] 2 NZLR 652, 656.The application and issues arising[13] The GTB seeks removal of the caveat on the following grounds: a) The caveat does not disclose the nature of the implied trust claimed by the Community Trust on how that interest has arisen as required by s 137 of the Land Transfer Act 1952; b) The evidence does not establish an arguable basis for the institutional constructive trust within the Community Trust now asserts; c) Even if the contributions and expectations of the community of the time could arguably give rise to an implied trust of some form: i) it did not create a beneficial interest in the land; and ii) the Community Trust has no standing to lodge the caveat or to oppose this application; d) It is just and equitable for the caveat to be removed in any event. [14] The Community Trust says in opposition that it needs only to show a reasonably arguable case for a caveatable interest, and that it has done so. It says that the caveat should be retained pending determination of its declaratory judgment proceeding. [15] The issues which the Court must decide are: a) Whether the caveat meets the requirement of s 137; b) Has the Community Trust established an arguable case for a beneficial interest in the land; and c) Would it be just and equitable to remove the caveat in any event.Does the caveat meet the requirements of s 137 of the Land Transfer Act 1952[16] The starting point is the caveat itself. A caveat must inform the owner of the land "with sufficient certainty" (s 137(2)(b)) of the interest that the caveator is claiming, and how that interest is derived from the owner (s 137(2)(c)). If it does not the Court will generally order its removal. [17] Counsel for the GTB submitted that the caveat failed to comply with s 137 in several respects. First he said it failed to disclose the nature of the implied trust (whether it was said to be a resulting or a constructive trust). Secondly, it failed to identify the circumstances which were alleged to have given rise to it (when and how it arose, who the beneficiaries were, and how it gave rise to a proprietary interest in the land). Counsel accepted that the sufficiency of the caveat would depend on the circumstances of the case but submitted that the caveat was plainly inadequate in that it failed to inform the GTB or the Court how the Community Trust (established in October 2008) claimed to be the beneficiary of a trust said to be derived from contributions made to the property more than 50 years beforehand. [18] Counsel for the Community Trust submitted that the caveat met the requirements of s 137. He said that the Community Trust wished to protect whatever interest persons in the Kawakawa Bay community had as a result of the contributions made to its purchase and to the construction of the church building. He argued that the GTB was well aware that this was the basis of the interest being claimed. He referred to several cases where the Courts had accepted similarly worded caveats:Re Peychers' Caveat [1954] NZLR 285; Buddle v Russell [1984] 1 NZLR 537; Allen v Hogan Developments Limited (2001) 4 NZ ConvC 193,420; and Zhong v Wang(2006) 5 NZ ConvC 194,308. He referred to the purpose of the caveat procedure (to provide protection for proper claims to proprietary interests pending resolution of those claims), and the recognition in Zhong v Wang (at para [58]) that that purpose would be undermined if too strict an approach were taken to the detail required. [19] The accepted approach to compliance with s 137 is to be found in the decision of the Court of Appeal Zhong v Wang where the Court of Appeal stated (at [46]:In our view, the question is one of degree. Did the caveats describe adequately the land and the interest (and its derivation) claimed?[20] The Court of Appeal traced this approach back to the decision of this Court inBuddle v Russell where the Court accepted that a claim to an estate or interest in the land "by virtue of a constructive trust between [the caveator's wife] and [the caveator]" stated with sufficient certainty the nature of the caveator's interest. The Court found that that was of the same character as the caveatable interest upheld inRe Peychers' Caveat, namely "as cestui que trust of which my wife is trustee". [21] The Court of Appeal referred to a stricter approach taken by this Court inNew Zealand Mortgage Guarantee Co Limited v Pye [1979] 2 NZLR 188, and to a recent review of relevant authorities undertaken by Ellen France J in Norrie v The Registrar-General of Land (2005) 6 NZCPR 94, before confirming the "sufficient understanding" test emanating from Buddle v Russell (at [53] – [58]):[53] We read Norrie preferring the Buddle v Russell line of cases. We agree. What is important is that the registered proprietor and the Court understand the nature of the interest claimed and basis of that claim. [54] As a general rule (for s 137(2)(b) purposes), it is sufficient to identify the form of trust alleged. While it would have been preferable for Mr Zhong's caveats to refer, expressly to a resulting or constructive trust, there can be no doubt that an interest of the type to which s 137(2)(b) refers was claimed. In our view, the caveats complied with s 137(2)(b). [55] Applying the same test, did the caveats comply with s 137(2)(c)? In our view, they did. There was a clear link between the named trustee (Mr Wang) and the registered proprietors, of which he was one. The caveats made it clear that the interest was derived from Mr Wang's involvement with Mr Zhong. The nature of the involvement would have been self- evident to Mr Wang. [56] No suggestion was made to us that the caveat ought to be removed because Ms Jin was a co-owner of the property. [57] It is unnecessary to require a caveator to explain the precise basis from which the interest qua beneficiary arises. Section 137(2)(c) applies to all types of interest that give rise to a caveatable interest. The derivation of those claimed interests may need greater explanation in some cases than others. In this case a linkage between the claimed interest and Mr Wang suffices. [58] The purpose of the caveat procedure is to enable those with proper claims to proprietary interests to protect themselves against loss by forbidding dealing with the land pending resolution of substantive claims. The underlying purpose of the caveat regime could be undermined if toostrict an approach were taken to the detail required to describe the interest claimed and its derivation from the registered proprietor.[22] It is clear that the caveat in the present case did not inform the GTB of the nature of the implied trust being claimed (whether a resulting trust, or an institution or remedial constructive trust). The GTB's first response to the caveat was a letter from its solicitors dated 3 February 2009 in which it responded to what it perceived to be the possible nature of the alleged trust:GTB has received a notice from the Land Registrar advising it of your Trust's lodgement of caveat No. 8039016.1 against the title to the property. We note that the caveat claims your Trust to be the beneficiary of an implied trust in respect of the property under which GTB is the trustee. GTB is quite adamant that no express or implied trust, of which it might be the trustee, has ever been created in respect of the property in favour of your Trust. GTB has held the property in trust for the religious purposes of the Anglican Church since GTB acquired the property in 1955. Those trust purposes have applied to the property throughout GTB's ownership of it. Because those trust purposes are charitable in law, any variation to them could be effected only by means of a scheme for variation approved under either the Charitable Trusts Act 1957 or the Anglican Church Trusts Act 1981. There has been no such variation. GTB notes that your Trust was incorporated only on 8 October 2008 under a trust deed dated 21 August 2007. By then, GTB had already held the property for the religious purposes of the Anglican Church for over 50 years. In GTB's opinion, there is no prospect of your Trust's being able to substantiate its claim to be the beneficiary of an implied trust in respect of the property. GTB accordingly considers that your Trust has registered the caveat improperly and without reasonable cause.[23] Counsel for the Community Trust argued that its interest would have been apparent from the known interest of the community in retaining the property and a letter which the Community Trust wrote to the secretary of the Anglican Diocese of Auckland two days before the caveat was lodged. In that letter the Community Trust contended that the major part of the land and building costs were donated or provided by the community, and challenged the rights of the Diocese to sell the property in view of "the legitimate expectations of the original donors and the community". [24] The Community Trust's letter needs to be read in context. The Diocese and Clevedon Parish had been trying to find an appropriate "community" body to acquirethe property since the St Anne's congregation decided in early 2005 that it could not sustain regular Anglican services or keep up maintenance of the building and grounds. Parish representatives had met with members of the local community in March 2007 to discuss the future and possible sale of St Anne's. Those community members were unable to offer an alternative to possible sale. When the negotiations with the Presbyterian Church came to an end in October 2008, Clevedon Parish was told by the Clevedon Presbyterian Church that the Community Trust had been formed "to explore the possibilities of a possible purchase". [25] The Community Trust's letter of 17 December 2008 went a step further by proposing an independent determination of the Diocese's entitlement to sell "on the open market" and advised that it would buy the property for the benefit of the community if the Diocese had the right to sell it. [26] I accept that this demonstrates uncertainty as to the trust being claimed. Bearing in mind the purpose of the caveat procedure, including the statutory safeguards afforded to caveators by ss 143 and 145A of the Act, the Community Trust's claim to an interest under an implied trust would seem to have stated the nature of the interest with "sufficient certainty" provided the derivation of the claimed interest can also be said to be apparent. [27] The critical issue in respect of meeting the requirements of s 137, therefore, is whether the caveat adequately informs the GTB and the Court as to the derivation of the Community Trust's interest. In this respect, an implied trust (whether a constructive trust or a resulting trust) must still exhibit the same features as an express trust, including certainty of objects (including beneficiaries) and subject matter: Dal Pont & Chalmers, Equities and Trust in New Zealand and Australia, 2ndedition 2000 p 966 and Equity & Trusts in New Zealand Butler and Others, 2003, p 12.1.3. [28] The caveat does not disclose how the Community Trust derives its interest from the GTB. Counsel for the Community Trust said in his written submissions that it was seeking "to protect whatever interest the people it represents may have in the land as beneficiary under the implied trust alleged". He relied on dicta of CaseyJ in Buddle v Russell to similar effect and submitted that the GTB was well aware of the Community Trust's interest and how it arose before the caveat was lodged. [29] The passage in Buddle v Russell on which counsel relied is to be found in the following passage from that case (at p 539):Section [137](1) requires the nature of the estate or interest to be stated "with sufficient certainty" and this must depend on the circumstances of the case. I can see why Vautier J reached the conclusion he did in theNew Zealand Mortgage Guarantee case, having regard to the dubious effect of the document relied on. Here the words used describe a situation which is quite clear to anybody reading the document; Mr Buddle wants to protect whatever interest he may have in the land as beneficiary under the constructive trust alleged. It is of the same character as that upheld inPeychers' case, where the husband claimed simply "as cestui que trust of which my wife ... is a trustee". In my view this "states with sufficient certainty" the nature of the interest he claims, to comply with s [137](1).[30] There will be cases where the derivation of the interest claimed by the caveator will be self-evident to the registered proprietor by reason of a pre-existing relationship. In Buddle v Russell the interest arose out of a de facto relationship. InAllen v Hogan Developments Ltd there had been a course of dealings between the parties for the purchase of the land in question. In Zhong v Wang the caveat was lodged to protect a substantial loan made by Mr Zhong to Mr Wang two years before the caveat was lodged. In each case there was a direct and temporal relationship between caveator and registered proprietor. [31] There is no such direct relationship between the Community Trust and the GTB. The GTB can be taken to have known that members of the local community had an interest in retaining the property in some form, but its only prior knowledge of the Community Trust appears to be the mention in the letter from the Clevedon Presbyterian Church of 28 October 2008. The first direct contact appears to be the Community Trust's letter of 17 December 2008. That letter referred to historical contributions, and expectations of original donors and "the community", but did not identify the constituency of the Community Trust and, in particular, did not identify any relationship to the original contributors. The statements that it was wishing to secure the property for the benefit of the community cannot be construed as a claim to a beneficial interest in itself. This leaves unresolved the issue of the beneficiaries of the alleged trust.[32] It is not possible to establish from the caveat or the circumstances existing at the time it was lodged whether the beneficiaries of the implied trust are the original donors (which would be the orthodox position) or a wider group. As none of the original donors is still living there is a further issue as to their descendants could be considered beneficiaries. If the beneficiaries are said to be the general community, it is unclear how that community would be defined (whether it is simply current members of the Kawakawa Bay community and, if so, where the boundaries of that community lie). [33] Counsel for the Community Trust submitted that its claim should not be dismissed on technical grounds. However, in the alternative, he sought leave to lodge a second caveat. This was opposed by the counsel for the GTB who argued that there was no reason to show any leniency. He submitted that at least one of the trustees (Mr J G Russell) had considerable experience in legal matters, and the trust had lodged the caveat through experienced solicitors. In those circumstances, he argued that it could be taken to have put its case forward as strongly as it was possible to do. [34] I accept that if it was possible to express its beneficial interest with any greater clarity, the Community Trust would have done so. However, rather than determine the matter simply on the issue of lack of compliance with s 137, I will also consider whether there is a arguable case for a caveatable interest, and therefore whether to allow a second caveat to be lodged.Does the Community Trust have an arguable case for a caveatable interest[35] The Community Trust's case is that the GTB holds the property as trustee of an institutional constructive trust for the benefit of the residents of the Kawakawa Bay community. It says that it represents these residents, who include the descendants of the residents who made contributions to purchase the land and build the church hall, and that they have a legitimate expectation that the GTB would hold the property in perpetuity for the general benefit of the community. [36] To establish an arguable case, the Community Trust must show that:a) the contributions gave rise to an institutional constructive trust; b) that this creates a beneficial interest in the land (as distinct from some lesser interest); and c) the Community Trust holds that interest or has standing to assert it on behalf of persons who might be able to claim the interest. (a) Did the conditions give rise to a constructive trust?[37] The Court of Appeal set out the requirements for an institutional constructive trust in Lankow v Rose [1995] 1 NZLR 277: a) Contributions, direct or indirect to the property in question; b) An expectation of any interest; c) Circumstances making it reasonable for the claimant to have an expectation of an interest; and d) It was reasonable for the respondent to expect to yield an interest to the claimant. If a claimant can demonstrate each of these points, equity will regard a denial of the claimant's interest as unconscionable, and will impose a constructive trust: Lankow v Rose (at p 294). [38] Although Lankow v Rose concerned a constructive trust arising in the course of a de facto relationship, it was common ground that the principles are not restricted to de facto relationships. Nevertheless, the Court will approach the matter differently where the parties are in an arms-length commercial transaction, where the basis for an alleged trust is not self-apparent: Allen v Hogan Developments Ltd para [39].[39] The GTB does not dispute that donations were made to the Anglican Church for purchase of the land and construction of St Anne's. It says, however, that there is nothing to distinguish those contributions from any other donation to the church. [40] The secretary of the Anglican Diocese of Auckland, and a Vicar of the Anglican Parish of Clevedon have undertaken searches of the Diocesan archives and Parish records respectively. They have produced a substantial number of contemporary records showing the history of the purchase of the land and construction of St Anne's. The land was purchased with the use of two contributions of £200 each (from two members of the Cashmore family) but there is nothing in the manner of payment to suggest that these contributions were other than by way of donation. The cheques were handed by the drawers of the cheques to the secretary of the Kawakawa Bay Anglican Church Hall sub-committee (a Mrs Stoddart). On the instruction of the secretary of the Clevedon parish central vestry (a Mr McKay) she then sent those cheques to the secretary of the Auckland Diocese. There was no reservation of interest or stipulation as to use (other than for purchase of the land). [41] Those records show that with the exception of some minor unidentified contributions, all contributions were made by persons and families having a relationship with the Anglican Church. The records also show that the Auckland Diocese gave the Clevedon Parish a loan of £510 towards the construction of St Annes and a grant of a further £100 for furnishings. The Clevedon Parish is recorded as having made a substantial cash contribution to the building of St Anne's, and as having taken responsibility for repayment of the Diocese loan and for maintenance of the property since it was built. [42] The only evidence for the Community Trust has been provided by its trustee, Mr J G Russell. He moved into the Kawakawa area in 1999 and is unable to give any direct evidence of matters in the 1950s. He refers to discussions he has had with what appears to be the sole surviving member of the Kawakawa Bay community of the 1950s (a Mr B Spick), and to a resident (Mr J Cashmore) members of whose family contributed the money used to purchase the land, and made other substantial contributions. Mr Russell has produced a letter written by Mr Cashmore, but there isno evidence from him or Mr Spick. Mr Russell also produced an historical report prepared in 1985, written by a community member of that time. [43] Although the GTB contends (with justification from the records) that the contributions by members of the Anglican community were donations to the church rather than direct contributions to the property, it is potentially arguable that these were contributions to the property by these persons. Also the GTB acknowledges that there may well have been contributions from members of the community, outside of the Anglican community, although there is no evidence as to the extent of any such contributions, or that they were other than by way of gift. [44] This takes me to the next aspect of the Lankow v Rose analysis, namely whether the contributors had an expectation of an interest. The Community Trust contends that the "Kawakawa Bay community" had an expectation of an ongoing interest. This can only arise from an expectation of the contributors at the time of making their contributions. [45] There is no evidence that the contributors had any expectation other than that their contributions would be used to establish a church on that site. There is nothing to suggest that any of them would personally acquire or retain an interest. In the letter produced by Mr Russell, Mr J Cashmore referred to anger of family members at the fact that the land was put into the ownership of the Anglican Church. However, that does not accord with any of the contemporary records which refer to the Cashmore family donating "a site for the Anglican Church at Kawakawa Bay" (although not purchased as it proved to be unsuitable), and a Mr R Cashmore acting on the behalf of the parish in negotiations and passing correspondence from the vendors to the parish to enable the GTB's solicitors to complete the purchase. Further, the Anglican Church recognised the Cashmore family's generosity by a memorial plate installed in the church, and another family member with close involvement in the church affairs made a bequest to St Anne's in 1984. These actions all indicate that the Cashmore family understood and accepted that their contributions were by way of donation to the Anglican Church. It is also significant that Mr J Cashmore does not make any mention in his letter of either his family orthe present community having an interest in the land (as distinct from an interest in its use). [46] This takes me to the third of the Lankow v Rose requirements, namely whether it was reasonable for those contributions to give the Kawakawa Bay community an interest. The Community Trust contends that members of the community made contributions so that a church and community hall could be built for the benefit of the whole community. I consider that that is a position reached with the benefit of hindsight. [47] It is clear from the contemporary records that the contributors (which for the purposes of the present application can be taken to extend to persons outside of the Anglican community) expected their contributions to produce a church and hall for the use of the Anglican community. There is no evidence at the time that it was to be for the benefit of the wider community, although it did in fact become used by the wider community. [48] Moreover, there is nothing to suggest that these contributions were other than donations to the Anglican Church. I accept the submission of counsel for the GTB that it would put churches in similar charitable groups in impossible positions if donations to establish a facility within a community were to give donors an interest in that facility. There would need to be very clear evidence of such an expectation. The evidence in the present case is scant, at best. [49] This view is in keeping with the decision of this Court in Akau'ola v President of the Conference of the Methodist Church of New Zealand (HC AK CP 183/SW01, 5 December 2001, O'Regan J). That case involved a dispute between the property trustees of the Otahuhu Tongan Methodist congregation and the Board of Administration of the Methodist Church of New Zealand over a church property used by the Otahuhu congregation. The case can be distinguished generally from the present in that assurances had been given by the Methodist Church of New Zealand to the Tongan Methodist congregation that the church belonged to them and no ownership would be asserted over it by the New Zealand Methodist. O'Regan J found that the Tongan Methodist congregation had made contributions to theproperty, and had shown that they had an expectation they would have an interest in it. However, the claim to a constructive trust was dismissed on the grounds that their expectation that they would have title to the Otahuhu Church property was no reasonable. The plaintiffs were found to be a congregation within the Methodist Church of New Zealand, and it was not reasonable for the property trustees to expect a different ownership structure for their property from any other property within the church. [50] This brings me to the last of the requirements, namely that it is reasonable that the GTB should expect to yield an interest to the general community. The Community Trust argues that the contributions were not gifts or donations to the Anglican Church, but contributions to an interdenominational church for the benefit of the entire community. Mr Russell refers to an "understanding" to this effect, namely that there was an expectation in the community that St Anne's was a community asset, available to the whole community. He is unable to provide any specific evidence of this. To the contrary, the evidence available from all of the contemporary records shows: a) All of the identified contributors were either members of, or had strong family links, to the Anglican Church; b) The contributors knew that the Anglican Church was the recipient of the contributions. c) There were no tags or reservations on the use of the money (there was nothing to distinguish the contributions from any other general giving to the Church); d) The Church was dedicated as an Anglican Church by the Anglican Bishop of Auckland; e) There is no evidence suggesting any objection at that time to the Church being dedicated in that way, or to the fact that it was held in the name of the GTB;f) The Parish of Clevedon has met all costs associated with St Anne's since it was built. [51] I find that the GTB could not reasonably have expected to yield an interest in St Anne's to the community. (b) Is there any interest in the land?[52] Counsel for the GTB submitted that even if it could be argued that an institutional constructive trust arose out of contributions to the purchase of the land or construction of St Anne's, any beneficial interest was as to the use of the property and not a proprietary interest in the land. He relied by analogy on Napier City Council v Residual Health Management Limited (HC NAP CIV 2004-441-35, 30 March 2004, Master Gendall) where the applicant Council claimed a caveatable interest as beneficiary under public trusts for the benefit of the citizens of Napier (incidentally, the case is also relevant as showing in para [6] the detail provided to meet the requirements of s 137). Master Gendall found (at para [20]) that a beneficiary under a charitable or similar trust in respect of the use of land does not have a proprietary right in respect of that land. He said it was plainly outside the purpose of s 137 to give any citizen of the Hawkes Bay area a right to lodge a caveat to prevent dealings with the land. [53] The evidence put forward on behalf of the Community Trust focuses first on the contributions to the purchase of the land and construction of the building, and subsequently on a history of use lf St Anne's by other groups. I have found that there is no evidence to support an institutional constructive trust at the time of the contributions. That is the only basis on which a proprietary interest in the land might have arisen. Any other expectation of the community, in my view, can only be in relation to use of St Anne's. Napier City Council v Residual Health Management Limited makes it clear that this cannot be considered an interest in the land. (c) Does the Community Trust hold the interest or have standing?[54] The Community Trust does not claim that it has a beneficial interest. It says that it represents the residents of the Kawakawa Bay community. It contends that this gives it a sufficient interest in the matter to oppose the application: Inland Revenue Commissioners v National Federation of Self Employed [1982] AC 617. It also says that its standing should be determined in the substantive proceeding it has brought to determine the nature of its interest. [55] The GTB challenges the Community Trust's standing in two respects. First it says that the Community Trust is not "connected" to the Anglican Church, the Anglican Diocese or the GTB and thereby has no standing to challenge the decision to sell, and secondly that it had no standing to lodge the caveat. [56] There is no evidence before the Court as to the persons comprising the residents of the Kawakawa Bay community, who are said to be represented by the Community Trust. Counsel for the Community Trust submitted that these were the persons who signatures appeared on a petition produced in evidence, and the writers of some 84 letters sent to the GTB opposing the proposed sale. He also submitted that the trustees of the Community Trust were a sub group of that wider community. He relied on Akau'ola v President of the Conference of the Methodist Church of New Zealand and Taspac Oysters Limited v James Hardie & Co Pty Limited [1990] 1 NZLR 442 in submitting that the lack of explicit identification was not fatal to its opposition on this application (because the consent of the persons being represented could be obtained if required). He indicated that this could be done at the time of the substantive application for a declaration. [57] I do not accept that the petition or the letters written to the GTB are necessarily evidence that the Community Trust is representing those persons. Nevertheless, it seems likely that the Community Trust will be able to provide the consent of persons whom it is representing. However, there is a greater difficulty for the Community Trust in showing that it represents "the residents of the Kawakawa Bay community" as a group. That group cannot be defined easily. [58] Further, in Finnigan v New Zealand Rugby Football Union Inc. [1985] 2 NZLR 159 the Court of Appeal gave standing to two members of a local rugby clubon the basis that they were connected by a chain of contracts to the New Zealand Rugby Football Union. It was an important factor in that finding that there was otherwise no effective way of establishing whether or not the union was acting within its lawful powers. That is not the case here. The caveat could have been lodged, this proceeding opposed, and the substantive proceeding issued by a person claiming an entitlement through one of the original donors, or by a current resident of the Kawakawa Bay community. [59] Had the Community Trust otherwise established an arguable case, I would have left the matter of standing to be determined in the substantive proceeding. As it is has not, I would also dismiss the present application on the ground of lack of standing.Should the matter be determined summarily?[60] Counsel for the Community Trust argued that there was further evidence potentially available on the question of the intentions and expectations of the contributors. He submitted that the Community Trust should be given the opportunity to seek this further evidence and advance it in its substantive application. [61] I do not accept that there is a reasonable likelihood of any further significant evidence emerging. The Kawakawa Bay community has known since 2005 that the future of St Anne's was in doubt. It has been aware of the efforts to sell the property to the Presbyterian Church. The community knew that the GTB was putting the property on the open market after the negotiations with the Presbyterian Church ended in October 2008. The matter has clearly been well aired in the local community (evidenced by the petition and the letters written to the GTB) yet no one has come forward to give evidence on the critical issues of the expectation of the community in the 1950s, or to say that they have further records which could bear on the issues. The researcher who prepared the historical report in 1985 had access to church records, and can be taken to have made enquiries within the local community. That report contains nothing which suggests that there is any basis to challenge the church's beneficial interest in the land (as distinct from the community's contentions about use of the property). Finally, the Community Trust has had legal advice sinceat least December 2008 (when the caveat was lodged). In those circumstances if there was any further cogent evidence, one would expect it to have emerged. [62] In summary, there is nothing to suggest that all potentially relevant evidence is not already before the Court or alluded to in the evidence before the Court. In my view there is nothing in that evidence to establish an arguable case for an institutional constructive trust.Discretion[63] As I have decided that the Community Trust does not have an arguable case, I do not need to consider whether it would be an appropriate case to exercise my discretion to remove the caveat in any event.Decision[64] I order that caveat 8039016.1 (North Auckland Registry) lodged by the respondent over the property described in certificate of title NA947/67, and known as 7 Kawakawa-Orere Road, Kawakawa Bay, be removed. [65] As the successful party, the General Trust Board is entitled to costs on a 2B basis, together with disbursements as fixed by the Registrar. ____________________Associate Judge Abbott