THE W R WILLIAMS MEMORIAL FOR THE MISSIONS TO SEAMEN TRUST BOARD INCORPORATED [2018] NZHC 867

THE W R WILLIAMS MEMORIAL FOR THE MISSIONS TO SEAMEN TRUST BOARD INCORPORATED[2018] NZHC 867 [30 April 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2018-485-134[2018] NZHC 867UNDER the Charitable Trusts Act 1957IN THE MATTER OF A scheme submitted to the Attorney-Generalby the W R Williams Memorial for theMissions to Seamen Trust BoardIncorporatedBETWEEN THE W R WILLIAMS MEMORIAL FORTHE MISSIONS TO SEAMEN TRUSTBOARD INCORPORATEDApplicantHearing: 30 April 2018Counsel: S P Gunatunga for ApplicantJudgment: 30 April 2018JUDGMENT OF CHURCHMAN JIntroduction[1] By a Declaration of Trust bearing the date 29 June 1914, Mary Ann Williamsestablished The W R Williams Memorial for the Missions to Seamen Trust BoardIncorporated. The purpose of the Trust was to engage in ministering to the materialcomfort and moral and spiritual wellbeing of seamen in the Port of Wellington and toconduct religious services in the Trust's premises for the benefit of seamen uponChristian Protestant Evangelical lines or methods.[2] On 24 August 1977, the Supreme Court approved a scheme of variationrelating to the property of the Trust.The application[3] By notice of originating application dated 21 February 2018, the applicantapplied for approval of a scheme under the Charitable Trusts Act 1957 ("the Act").This sought amendment to the charitable purpose of the Trust pursuant to s 32 of theAct, and modification of the powers of the trustees and mode of administration of theTrust pursuant to s 33 of the Act.[4] The grounds upon which the amendments sought were that:(a) It is impossible or impracticable or inexpedient to carry out an aspectof the original purpose of the trust.(b) The amended purpose remains charitable.(c) The amended purpose accords as nearly as possible with the terms ofthe original trust.(d) The administration of a trust could be facilitated by varying the powersof the trustees of the trust.[5] In essence, the application seeks a variation to the wording in the trust deedlimiting the conduct of religious services for seafarers "along Christian Protestant andEvangelical lines".[6] The stated basis for this is that "modern seafarers now have a diverse range ofbeliefs" and "the overall number of seafarers has decreased, due in part to smaller sizeof ships and seafarers spending less time in port".[7] An affidavit of M J van Voornveld filed in support confirmed that the proposedvariation would not affect the range of seafarers who can use the Mission to Seafarers'premises as the Mission to Seafarers has never turned away non-Christians.[8] In relation to the proposed amendments to provide a clause indemnifying thetrustees for any conduct and duties carried out in connection with the Trust providedthey have not acted dishonestly or otherwise have intentionally committed a breach ofthe Trust and the clause giving the trustees the power to vary the administrative andmanagerial terms of the Trust, the grounds relied on were that these changes wouldfacilitate the administration of the Trust by bringing it more in line with moderncharitable trusts and allowing the trustees to respond to changing circumstanceswithout having to return to court.[9] The trustees also applied under s 33 of the Act to replace all references to"Missions to Seamen" with "Mission to Seafarers".[10] Virginia Hardy, Deputy Solicitor-General, provided a report to the Court underss 35 and 56 of the Act.Analysis[11] The jurisdiction of the Court to vary the terms of a trust is based on s 32 of theCharitable Trusts Act 1957. Where the Court finds that it is impossible orimpracticable or inexpedient to carry out the terms of the trust as directed by the settlor,the court owes a duty to the settlor of the trust property to dispose of an applicationsuch as this as nearly as possible in accordance with the intentions of the settlor inestablishing the trust.1[12] The principles relating to amending administrative provisions of a trust arefound in s 33 of the Act which provides that if it appears that the administration of anyproperty or income held upon trust for any charitable purpose could be facilitated byextending or varying the powers of the trustees, the Court may extend or vary thosepowers.[13] The Court has held that the threshold for the use of the Court's powers unders 33 is that:2It is necessary for this Court to be satisfied that the administration of theproperty or the carrying out of the Trust "could be facilitated" by the variation1 Re Whatman, High Court Wellington 6 July 1965, Thompkins J. See also Re Twigger [1989]3 NZLR 329; and Re Tennant [1996] 2 NZLR 633.2 Re Melanesian Mission Trust Board, High Court Auckland M1140/98, 24 September 1998,Paterson J.sought. The ordinary dictionary meaning of "facilitate" is "made easier,promoted or held forward".[14] Based on the affidavit evidence provided, I am satisfied that it is "impossible,impracticable or inexpedient" to carry out that part of the purposes of the Trust limitingthe religious services it can provide to seafarers to those "along Christian ProtestantEvangelical lines".[15] I am satisfied that, as varied so as to delete the requirement to conduct specificreligious services, the purposes of the Trust remain charitable, and are sufficientlyclose to the charitable purposes in the original trust deed so as to justify amendment.The Mission to Seafarers is still required to minister to the spiritual wellbeing ofseafarers in the Port of Wellington, albeit now irrespective of their faiths anddenominations.[16] In terms of the proposed alteration to the mode of administration, I am satisfiedthat what is proposed falls within the type of amendments that have been proved bycourts in relation to similar applications in the past.3Conclusion[17] Being satisfied that the amendments sought pursuant to ss 32 and 33 are inaccordance with the provisions of that Act, I approve the amendments and the form ofthe draft order approving the Scheme under the Act filed with the court and dated21 February 2018.Costs[18] As per the draft order dated 21 February 2018, all reasonable costs andexpenses and incidentals to the preparation, perusal and advertising of the Scheme andsubmission of it to the Attorney-General and to this Court, including the costs ofsolicitors acting and counsel retained, are to be paid out of the Trust fund, which is toalso contribute $750 to the costs incurred by the Attorney-General.3 Re Neil Barr Farm Forestry Foundation [2014] NZHC 2324; Re Brooks [2015] NZHC 950; andAuckland Observatory and Planetarium Trust Board [2017] NZHC 1224.Churchman JSolicitors:Morrison Kent, Wellington