WAHO v TE KŌHANGA REO NATIONAL TRUST [2018] NZHC 1935

WAHO v TE KŌHANGA REO NATIONAL TRUST [2018] NZHC 1935 [31 July 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2014-485-11177[2018] NZHC 1935UNDER (in part) The Trustees Act 1956BETWEEN TONI JAMES DAVIS WAHOPlaintiffAND TE KŌHANGA REO NATIONAL TRUSTDefendantHearing: 8–23 May 2017 and 11 September 2017Appearances: F E Geiringer and J K Mahuta-Coyle for PlaintiffM F McClelland QC and I Tokmadzic (until 11 May 2017 when aclaim against first defendant was discontinued)M F McClelland QC (from 11 May 2017), N J Russell andS I Jones for DefendantJudgment: 31 July 2018JUDGMENT OF CLARK JI direct the delivery time of this judgmentis 4.30 pm on 31 July 2018Introduction and issue [1]Background in overview [4]Te Pātaka Ōhanga employment dispute and emergence of the Rākai list [8]Trust Board's response to the Rākai allegations [12]Mr Waho brings his concerns to the Board [21]Special meeting of the Board is arranged but cancelled [23]Ernst Young report is delivered [24]Ministers and Board meet to discuss release of report [25]Board decides Mr Waho brought Trust into disrepute [30]Events subsequent to Board's decision [33]Mr Waho files proceedings [37]Discontinuance against first defendant [38]Threshold approach to issue of 'lawfulness' [39]First limb: failure to respect confidentiality? [44]Master Agreement [50]Trust deed [54]Trustees' duties [58]Assessment [61]Second limb:making serious unfounded allegations to Minister of Education? [79]Assessment [96]Legal consequence of factual findings [97]Honorarium [99]Outcome [103]Introduction and issue[1] Until he was removed in 2014 Toni Waho was a trustee of Te Kōhanga ReoNational Trust, a trust dedicated to the use and retention of te reo Māori. The TrustBoard decided to remove Mr Waho on the grounds he had brought the Trust intodisrepute by going to Ministers, behind the Trust's back, with allegations against TrustBoard members and members of the Board of the Trust's commercial arm, Te PātakaŌhanga Ltd.[2] Mr Waho says he acted honourably and in accordance with his duties as atrustee. Mr Waho challenges his removal. He pleads, as he puts it, for the protectionof the Court. Mr Waho brings this proceeding to obtain declarations that he did notbring the Trust into disrepute and that his removal was unlawful. Mr Waho also seeksan order for payment of the honorarium he would have received but for his removal.[3] The key issue for my determination is whether there is an objectivelysupportable factual foundation for the Trust Board's assertion that Mr Waho broughtthe Trust into disrepute.Background in overview[4] The Trust was established to promote the aims of the Te Kōhanga Reomovement which has been instrumental in arresting the decline of te reo Māori.Protection of te reo has been achieved primarily through early childhood educationwith total immersion in Māori. Collectively the centres are known as the te kōhangareo whānau. The Trust is a registered charitable trust, governed by a trust deed andadministered by the Trust Board (the Trust Board or Board). Mr Waho had been atrustee since 2006. He was one of seven trustees and also the deputy chair.Timoti Kāretu and Tina Olsen-Rātana were the co-chairs.[5] Te Pātaka Ōhanga (TPO) is a wholly owned subsidiary of the Trust. It providesservices to the Trust and to individual kōhanga reo. At the relevant time it had fourdirectors, three of whom were also on the Trust Board: Dame Iritana Tāwhiwhirangi,(the chair), Dr Wharehuia Milroy and Druiscilla (Druis) Barrett. Dame Iritana'sdaughter-in-law, Lynda Tāwhiwhirangi, was the General Manager of TPO.[6] As presented over the course of the hearing, in over 5,500 pages ofdocumentary evidence, in the pleadings which continued to be amended during thehearing and in the oral testimony of witnesses, the factual background traces back overmany years covering internal and external investigations and inquiries, suspicions andallegations and, at times, bitter disputation. In this overview I set out only the keyevents leading to Mr Waho's removal. Later in my judgment, when it becomesnecessary to address issues that are subsidiary to the key issue, the details and factsrelating to those matters will be set out.[7] At the heart of the disagreement between Mr Waho and the Trust Board are the"Rākai allegations" or the "Rākai list", the existence of which Mr Waho felt compelledto bring to the attention of Ministers. The Rākai list contained accusations ofwrongdoing against TPO officers and the Trust Board. TPO was tending towardssummary dismissal of its General Manager, Lynda Tāwhiwhirangi, when her husband,Rākai Tāwhiwhirangi, produced his allegations.Te Pātaka Ōhanga employment dispute and emergence of the Rākai list[8] Mrs Barrett wrote a lengthy letter to Mrs Tāwhiwhirangi on 27 November 2013detailing why TPO regarded Mrs Tāwhiwhirangi's conduct to be so serious as towarrant summary dismissal. TPO's "grave concerns" that Mrs Tāwhiwhirangi hadacted inconsistently with her fiduciary obligations as a director, her statutory duties,and her contractual obligations, arose out of a series of reports by Māori Televisionpublicising corporate credit card misuse by Mrs Tāwhiwhirangi and others. The storywas broadcast as a documentary programme, "Feathering the Nest". On the basis ofan affidavit Mrs Tāwhiwhirangi had sworn TPO believed the allegations to beunfounded and applied to the High Court for an injunction. TPO withdrew itsapplication when it became clear from evidence filed on behalf of Māori Televisionthat there were issues around Mrs Tāwhiwhirangi's credit card use which she had notbrought to TPO's attention. Mrs Tāwhiwhirangi swore a further affidavitacknowledging errors and providing further detail which contradicted her earlierevidence. TPO regarded the further affidavit as fundamentally undermining theposition it had taken before the High Court. Critically Mrs Tāwhiwhirangi's evidenceexposed TPO to legal risk and "disrepute in a public forum".[9] An investigation was commissioned. George Reedy and Associates, charteredaccountants, found Mrs Tāwhiwhirangi had used the organisation's credit card forpersonal or private use.[10] The findings of the Reedy investigation (as it was termed by the parties in thisproceeding) were put to Mrs Tāwhiwhirangi along with questions regardingunexplained expenditure and TPO directors met Mrs Tāwhiwhirangi in mid-November 2013 to discuss matters. At a second meeting on 27 November 2013, theday of Mrs Barrett's letter, Mrs Tāwhiwhirangi was accompanied by her husband,Rākai Tāwhiwhirangi. TPO did not fully accept Mrs Tāwhiwhirangi's explanationsand it became clear during the course of the meeting that agreement was not going tobe reached. Mrs Barrett's letter records the following:(a) Mr and Mrs Tāwhiwhirangi asked for a settlement package equivalentto some $800,000.(b) Mr Tāwhiwhirangi had written information to which he referred butwhich he did not disclose to those in attendance at that time. Thesettlement package was to ensure Mr and Mrs Tāwhiwhirangi wouldnot take further action to expose the organisation "with all thisinformation".(c) Mr Tāwhiwhirangi threatened to go to Te Karere, Māori Television andmainstream media with specific details about spending and fundingissues within TPO if the organisation did not agree to various proposalsin Mrs Tāwhiwhirangi's favour.(d) TPO believed Mr Tāwhiwhirangi could only have come into possessionof the information through Mrs Tāwhiwhirangi, and her disclosure toher husband or the media breached her obligations of confidence.(e) The Reedy investigation findings, Mrs Tāwhiwhirangi's withholding ofinformation for her own benefit, her apparent disclosure of confidentialinformation and intention to make further disclosures, and her attemptto extort personal benefits from the organisation by threatening to makeunauthorised disclosures of confidential information, raised seriousconcerns for TPO.(f) Mrs Tāwhiwhirangi was provided with particulars of the way in whichit appeared she had breached her contractual obligations.(g) Based on the matters set out in the letter, TPO had reached a preliminaryview that Mrs Tāwhiwhirangi's conduct constituted grounds fordismissal without notice. Mrs Tāwhiwhirangi was urged to seekindependent legal advice and provide her written response within aweek.[11] On 27 November 2013, the day of the meeting and of Mrs Barrett's letter,Mrs Olsen-Rātana received a call from Dame Iritana. Dame Iritana's son,Rākai Tāwhiwhirangi, had pulled into her driveway and thrown a document at her. Hewas angry that his wife, Mrs Tāwhiwhirangi, was being treated unfairly and hethreatened to go to the media. Mrs Olsen-Rātana and Dame Iritana met shortlyafterwards at the Trust's office. Dame Iritana gave Mrs Olsen-Rātana the documentfrom her son.Trust Board's response to the Rākai allegations[12] Within 30 minutes of receiving the list from Dame Iritana, Mrs Olsen-Rātanagave the document to her fellow trustee, Mrs Barrett, who was at the offices ofChen Palmer discussing the TPO employment dispute. Mrs Olsen-Rātana thencontacted Dr Kāretu, Mr Tohu and Mr Waho, three non-conflicted trustees, to informthem, by way of a "heads up", of the Rākai list.[13] The parties dispute the import of the Rākai allegations. Mr Waho's case is thatthe Rākai list contained a number of allegations of wrongful acts against both the Trustand TPO. Some of the allegations were trivial in nature but many were sufficientlyserious to demand a substantive response from the trustees.[14] The defendant accepts Mr Tāwhiwhirangi handed to his mother, Dame Iritana,a document containing allegations but the defendant says Mr Tāwhiwhirangi did thisin his capacity as an advocate for his wife in the course of a confidential employmentprocess between her and TPO. The defendant's pleaded position is that the allegationsare unsubstantiated and irrelevant to the employment dispute.1[15] The Trust Board met on 10 December 2013. The minutes record no mentionof the Rākai allegations.1 The Trust's pleaded position is that the Rākai allegations are not accepted as being relevant to theemployment matter between, Mrs Tāwhiwhirangi and TPO. The Trust's case, however, was runon a different footing, namely, that the Rākai allegations related to a confidential employmentdispute which it was for TPO to address not the Board.[16] The Board next met on 20 December 2013 by teleconference. Except forDame Iritana, who was conflicted, all trustees attended. The minutes record the firstitem for discussion as the dismissal of TPO's General Manager. Mrs Barrett advisedthe Board Mr Tāwhiwhirangi had demanded $800,000 in order to keep his list ofallegations confidential. Two significant aspects of that meeting emerge from thedocumentary evidence and oral testimony:(a) The first significant point is that Mr Waho strongly opposed thedirection in which his fellow trustees were heading. Trustees queriedthe action taken by Mrs Barrett and her fellow director with regard tothe employment dispute with Mrs Tāwhiwhirangi. Althoughrecognising the TPO directors had explored all avenues and were actingon legal advice, trustees felt the situation raised a question aboutwhether TPO was compelled to take into account the views of theBoard. There was support for ongoing negotiations withMrs Tāwhiwhirangi. Mrs Olsen-Rātana described the process as"getting out of hand" and said trustees felt the parties should "return tothe table". Mrs Olsen-Rātana said Mr Waho spoke out in opposition toany money being paid to Mrs Tāwhiwhirangi. But the trusteesconsidered the employment process was not concluded and the partiesshould be left to resolve it between themselves. Mr Waho thought thesuggestions were "outrageous". Mr Waho's evidence was that at thispoint he felt himself to be a "lonely voice in the wind". The minutesrecord Mr Waho "objecting to the way in which things were beingdone" and wanting his support for the directors' actions recorded. Heexited after a lengthy discussion and heated debate before theteleconference was concluded.(b) The second significant point is that there is no explicit reference in theminutes to the Rākai allegations yet the Board was keenly aware of thejeopardy they posed. Dr Kāretu accepted in cross-examination that thereference in the minutes to the "huge political risk that needed to bemanaged" was a reference to the political harm to the Board and itsoperations if the Rākai list saw the light of day. And Mrs Olsen-Rātanaaccepted that the recorded comments, "purchases and loans for Boardmembers" and "car for the King" were from the Rākai list. Theevidence was that many more of the items under a heading of "OtherConcerns" related to the Rākai list.[17] While there was a degree of dispute between the parties as to the views andcomments expressed during the telephone conference there can be no argument thatno investigation of the Rākai list was proposed or agreed on 20 December 2014.[18] At an "In Committee" meeting on 15 January 2014 the Board discussed a pressrelease to accompany the anticipated release of the Ernst Young report following itsreview of the use of public funds. There was no discussion of the Rākai allegations atthe meeting.[19] On 20 January 2014 Dame Iritana requested an urgent special meeting in twodays time to table her complaint about Mrs Barrett's penchant for undermining her andother Board members. Dame Iritana intended moving a vote of no confidence inMrs Barrett. Dame Iritana could no longer work with Mrs Barrett as a director of TPO.When the Board met on 22 January 2014 Dame Iritana's motion was passed but itseems the meeting was inquorate. Mrs Barrett said she challenged her removal.Minutes of a meeting on 11 February record Mrs Barrett tendering her resignation buther evidence is that she did not resign. Mrs Barrett's status at this time, and thecontested issues around her departure, were the subject of challenged testimony. Aswith a large number of contentious issues raised in the course of the hearing, theevidence bearing on this episode reflects the discord and mistrust within the Board atthe time, but I have reached the view that the key issue before me does not requireresolution of the contested evidence bearing on this particular dispute.[20] The minutes of the Board meeting on 11 February 2014 record no discussionof the Rākai allegations. Mr Waho did not attend. The minutes record the Board'sapproval and support for the leave of absence he requested the previous month.Mr Waho's leave of absence was another of the matters of contention in the case.While Mr Waho's leave of absence is ancillary to the ultimate issue the activities ofthe Board during this time bear on Mr Waho's fidelity. It is necessary, therefore, toreturn to the leave of absence. I do so at [84]–[88].Mr Waho brings his concerns to the Board[21] On 10 March 2014 Mr Waho wrote to the Board. Mr Waho had legal advicethe effect of which he imparted in a structured and detailed five-page letter. The letterset out what had taken place, what Mr Waho believed needed to be done, and what hewanted done. The legal advice was that some of the Rākai allegations, if substantiated,disclosed criminal activity. Suppressing the list had the potential to make the trusteesaccessories. Likewise, if the Board were to pay the monies demanded byMr Tāwhiwhirangi, or fail to take steps to prevent misappropriation of trust funds,trustees would be in breach of their fiduciary obligations to protect and properly applytrust funds.[22] Mr Waho did not believe these matters could be regarded as confidential. Hesaw it as essential that all of the allegations, including allegations against him, beproperly investigated. He set out the steps he considered the Board needed to take inlight of the trustees' collective and individual duties. One of the steps was to informrelevant Ministers of the Reedy investigation and Mr Tāwhiwhirangi's "blackmailattempt" and Mr Tāwhiwhirangi's allegations. If the Board would not agree to takethe steps collectively Mr Waho believed he had no option but to report the issues tothe proper authorities. For this reason he was unable to sign an agreement bindinghim not to divulge these matters to third parties.Special meeting of the Board is arranged but cancelled[23] A special meeting of the Board to discuss Mr Waho's letter was scheduled for13 March 2014 but on 12 March Mrs Olsen-Rātana cancelled the meeting.Mrs Barrett had also written to the Board with a list of the matters she believed shouldbe discussed at the meeting on 13 March. Mrs Barrett's position mirrored Mr Waho's.If not satisfied the Board intended to take the necessary action Mrs Barrett felt shewould be left with no option but to raise her concerns with appropriate people outsidethe Board including Ministers and the Police. As some of the matters covered inMrs Barrett's letter appeared to be identical to matters in Mr Waho's letter of10 March, Mrs Olsen-Rātana said the Board needed an opportunity to take properadvice. A tikanga hui was arranged to discuss Mr Waho's and Mrs Barrett's letters.Ernst Young report is delivered[24] On 12 March 2014, Ernst Young delivered its report. The review had beeninitiated to assess the appropriateness and effectiveness within the Trust of thefinancial internal controls for the receipt of public funds. The Ernst Young review hadtaken into account supporting documentation only up until 31 December 2012.Ministers and Board meet to discuss release of report[25] The Minister of Education, the Hon Hekia Parata and the Associate Ministerof Education, the Hon Sir Pita Sharples, had arranged to meet with representatives ofthe Board on 18 March 2014 for the purpose of discussing a public presentation ofErnst Young's findings. The Ministers proposed to issue a joint media statement.Mrs Olsen-Rātana asked trustees to confirm their availability on 18 March to meetwith Ministers. Mr Waho was adamant the meeting could not proceed with theMinisters not knowing about the Rākai allegations. An attempt by Mrs Olsen-Rātanato postpone the meeting was unsuccessful.[26] On 17 March 2014 Mr Waho sent an email to both Ministers to alert them to —certain matters related [to] the use of funds by the Board and its commercialarm, [TPO]. I do not believe it would be honest to discuss the [Ernst Young]report with you and not reveal these other matters.[27] Mr Waho attached to his email to Ministers his letter of 10 March 2014 to theBoard.2[28] In accordance with normal procedure Mr Waho's email was initially handledby staff. The short point for present purposes is that the Ministers went into themeeting unaware of the existence of the Rākai allegations or Mr Waho's concernsabout the Board's lack of response to them. Those matters were not discussed at themeeting. Late in the evening of 18 March the Ministers proceeded to make a public2 Outlined above at [21]–[22].announcement to the effect the Ernst Young review had shown the Trust's financialcontrols to be effective.[29] Within 24 hours there was a dramatic turnaround. It transpired that after theirjoint statement the Ministers became apprised of Mr Waho's letter. On 19 March theMinisters jointly issued a second media statement referring to new allegations that hadbeen brought to their attention and which would be referred to the Serious Fraud Office(SFO).Board decides Mr Waho brought Trust into disrepute[30] The Board wrote to Mr Waho on 20 March 2014 having considered his letterof 10 March. It took the view the "general and unsubstantiated" allegations byRākai Tāwhiwhirangi were made in the context of a disciplinary meeting.Accordingly, they were confidential. Furthermore, they were made inMr Tāwhiwhirangi's capacity as Mrs Tāwhiwhirangi's advocate and in an attempt todefend or respond to the disciplinary allegations raised by the TPO directors. Theletter concluded with the observation that Mr Waho's letter to Ministers had broughtthe Trust into disrepute and appeared to be in bad faith.[31] At a special meeting of the Board on 31 March 2014 the Board agreed that, byhis actions, Mr Waho had brought the Trust into disrepute but no further action wouldbe taken. The draft minute note emailed to Mr Waho on 31 March 2014 recorded fourfurther matters which the Board had agreed. Two require mention. The Board agreed:that Toni return to TPO or destroy the Rākai Listall Board members agreed to sign the confidentiality clause to be redrafted bythe Co-chair[32] Mr Waho's evidence was that the minute was roughly correct except that hedid not agree to sign the confidentiality agreement. Furthermore, he received a revisedminute note the following day. The revised draft minute note, which was in evidence,was identical except the reference to the Board's apparent agreement as to the returnor destruction of the Rākai list was omitted as having been incorrectly included in thefirst place.Events subsequent to Board's decision[33] Between April and July 2014 significant decisions and actions were taken.Ministers advised the Board the Government did not intend to renew the MasterAgreement.3 The Ministers were concerned that this agreement between theMinistry of Education and the Trust under which $2.56 million per year was providedto the Trust was not achieving the required support for kōhanga reo. A new form ofcontract would be agreed. The Ministers did not wish to see participation in earlylearning and te reo continue to decline and would give that assurance to allkōhanga reo. The bottom line was that, once again, there were real issues ofGovernment confidence in regard to the Trust's governance arrangements.[34] In June 2014 the SFO completed its investigation into allegations of misuse offunds held by TPO. The investigation disclosed no criminal offending and the SFOannounced it would not be taking further action.[35] Although the SFO investigation disclosed no criminal activity an investigationby the Department of Internal Affairs found gross mismanagement in relation to creditcard use, governance and financial management, directors' fees, koha and financialassistance loans. The Department was also concerned certain activities conducted byTPO did not appear to advance an exclusively charitable purpose. It issued a warningnotice to TPO.[36] At a special meeting of the Trust Board on 27 August 2014 the Board resolvedby a majority:1 That Mr Toni Waho has brought the Te Kōhanga Reo National Trustinto disrepute2 The grounds on which Toni Waho has brought the Trust into disreputeare:a Failing or refusing to acknowledge and respect confidentialityin his dealings with the Trust Board3 The Master Agreement, pursuant to which the Trust provided services for the Ministry ofEducation in relation to the administration of kōhanga reo is discussed below at [50]–[53].b Making serious allegations to the Minister of Education, nowshown to be unfounded by the outcome of the Serious FraudOffice InvestigationMr Waho files proceedings[37] The resolution prompted Mr Waho to file proceedings in the High Court. Inhis statement of claim filed on 28 August 2014 Mr Waho sought orders under theTrustee Act 1956 either removing and replacing Mrs Olsen-Rātana as a trustee orremoving and replacing all trustees. Mr Waho also applied for an interim injunctionrestraining the Board from removing him as a trustee without the leave of the Courtand requiring the Board to inform him of all Board meetings and to allow hisparticipation as a Board member. MacKenzie J dismissed Mr Waho's application foran interim injunction.4 Mr Waho appealed. The Court of Appeal dismissed Mr Waho'sappeal.5 The balance of convenience did not favour an injunction. The majority,however, could not be confident Mr Waho did not have a seriously arguable case thathe was wrongfully removed. They expected Mr Waho's substantive claim forreinstatement to be expedited to trial.6Discontinuance against first defendant[38] On 10 March 2017, the third day of trial, Mr Waho was asked duringcross-examination to confirm his understanding that, as at the end of 2017, none of theexisting trustees would be on the Board. They were to be replaced. This was news toMr Waho. This development affected the formulation of Mr Waho's claim and therelief sought. On 11 March following legal argument occupying half a day, I grantedleave to Mr Waho to amend his statement of claim and to discontinue againstMrs Olsen-Rātana who was, up to that point, the named "first defendant".74 Waho v Olsen-Rātana [2014] NZHC 2729, (2014) 3 NZTR 24-020.5 Waho v Olsen-Rātana [2014] NZCA 612, (2014) 3 NZTR 24-022.6 At [42] and [51].7 It is not necessary in this judgment to engage with questions about the adequacy of discovery. Isimply record that in the course of their respective legal arguments counsel address the formulationof the relief which Mr Waho sought in the early iterations of his claim and whether the imminentreplacement of their current Board members was relevant and disclosable in light of the reliefsought at that time.Threshold approach to issue of 'lawfulness'[39] The starting point is the trust deed. While there was some dispute about thevalidity of various iterations of the trust deed, the clause providing for removal of atrustee from office remained constant throughout the various versions. Removal fromoffice must be in accordance with cl 6.3 which provides:6.3 A Trustee may be removed from office by a 75% majority vote of theTrustees present voting at a meeting duly constituted for the purposeof considering the fitness or suitability of the Trustee in question. Ameeting to consider the fitness or suitability of Trustee to continue asTrustee may be called by simple majority of the Board if:6.3.1 The Trustee has been absent without consent of the Board for three(3) consecutive meeting of the Board; or6.3.2 The Trustee has brought the Trust into disrepute.[40] The broad question raised by Mr Waho's application for a declaration iswhether he was lawfully removed. A decision to remove a trustee is a matter for theBoard's judgment.8 And, as counsel agreed, the basis upon which the Court mayintervene in such a discretionary decision is limited. The principles upon which theCourt may review a trustee's decision are those which Fisher J set out inWrightson Ltd v Fletcher Challenge Nominees Ltd.9 The Court is not a court of appealfrom the trustee's decision. It does not consider the issue for itself and substitute itsown decision for that reached by the trustee.10 The Court will set aside the trustee'sdecision only in limited circumstances, for example, where a trustee has acted in badfaith, failed to consider the correct question when exercising the discretion, consideredirrelevant matters or reached a decision that is perverse.11[41] But in the context of Mr Waho's claim a threshold issue arises. Beforeconsidering whether Mr Waho should be removed, the Board was required to havebefore it a proper factual basis for its assertion Mr Waho had brought the Trust intodisrepute. When McKenzie J declined Mr Waho's interim injunction application heheld that the question whether a trustee has brought the Trust into disrepute is an8 Waho v Olsen-Rātana, above n 5, at [36].9 Wrightson Ltd v Fletcher Challenge Nominees Ltd (1998) 1 NZSC 40,388 (HC).10 At 41.11 At 41–42.exercise of judgment by the trustees and therefore only reviewable on the limitedWrightson grounds.12 The Court of Appeal held the Judge was in error. While adecision to remove a trustee is for the Board's judgment the question whether a trusteehas brought a trust into disrepute is not purely a matter of discretion, or judgment. Theassertion that a trustee has brought a trust into disrepute must be objectively verifiable.In the Court of Appeal's opinion the wording of cl 6.3.2 of the trust deed supports theview: 13that the trustees must satisfy themselves that there is an objectivelysupportable factual foundation for asserting that a trustee has brought the Trustinto disrepute before determining that question in exercise of their collectivejudgment. If that threshold is satisfied, then it is also a question for theBoard's judgment or evaluation whether the trustee should be removed on theground that he or she is unfit or unsuitable to hold office. It is a two stageprocess.[42] Counsel disputed the interpretation and application of this test. I do notrehearse the competing contentions. Consistent with the Court of Appeal's two-stageprocess my task is to inquire into the existence of facts constituting the foundation forthe Board's assertion that Mr Waho's actions brought the Trust into disrepute.Mr Waho cannot succeed in his claim if he is unable to establish the Board lacked anobjectively supportable factual foundation for asserting he brought the Trust intodisrepute. Accordingly, I propose to consider whether an objectively supportablefactual foundation existed at the relevant time for the Board's assertion that Mr Wahobrought the Trust into disrepute by —a Failing or refusing to acknowledge and respect confidentiality in hisdealings with the Trust Board.b Making serious allegations to the Minister of Education, now shownto be unfounded by the outcome of the Serious Fraud OfficeInvestigation.[43] I turn to examine the factual unpinning for each of these two limbs.12 Waho v Olsen-Rātana, above n 4, at [17].13 Waho v Olsen-Rātana, above n 5, at [36].First limb: failure to respect confidentiality?[44] In his letter to the Board dated 10 March 2014, Mr Waho set out his reasonsfor declining to sign a confidentiality agreement. To the extent the agreement soughtconfirmation from the trustees they had not been the source of leaks to the mediaMr Waho confirmed he was not the source of any leaks. In Court he confirmed hisposition under oath.[45] As set out earlier in this judgment14 the legal advice Mr Waho obtainedsuggested the possibility of criminal activity. Mr Waho pointed out in his letter of10 March 2014 that obtaining the advice necessitated divulging matters to a thirdparty. Mr Waho explained the obligation he felt to divulge matters to appropriateauthorities but he had "not yet done so unilaterally". Mr Waho did not believe thesematters attracted confidentiality. He considered the Board had to inform relevantMinisters, the Police and the Serious Fraud Office "about the actions and allegationsof Mrs and Mr Tāwhiwhirangi".[46] Mr Waho concluded his letter with the observation the Trust had little choiceabout how to act. The proposals that had recently found favour around the Board tableand which had led to an attempt to remove and replace Mrs Barrett as a director wouldamount to serious breaches of trust and, possibly, criminal acts.[47] Yet it was not Mr Waho's refusal to sign the confidentiality agreement that gaverise to the confidentiality limb of the disrepute assertion. Dr Kāretu's evidence wasthat the asserted breach of confidentiality arose from Mr Waho writing to Ministerswithout the approval of the Board. Dr Kāretu said this should only have been donewith the Board's approval and knowledge. That said, Dr Kāretu accepted under cross-examination that all of the trustees were under a duty to inform the Ministers of thematters in Mr Waho's letter. Dr Kāretu's point was that trustees should have actedtogether, as a Board, rather than in any individual capacity.[48] There is no doubt, in my view, the trustees were obliged individually, andcollectively, to bring the fact of the Rākai allegations to the attention of Ministers. The14 Above at [21].Ministers needed, and expected, to have this information. In fact the Ministers jointly,and publicly, criticised the Board's failure in this regard.15[49] The individual and collective obligation on the trustees to inform Ministers ofthe very matters which the Board insisted were confidential, can be sourced to theMaster Agreement between the Ministry of Education and the Trust, the trust deed,and the fiduciary duties of trustees more generally.Master Agreement[50] The Te Kōhanga Reo National Trust Master Agreement was signed on12 September 2013 and was operative to June 2014. Thus, the Agreement covered theperiod from the time the Board learned of the Rākai allegations until Mr Wahocommunicated with Ministers on 17 March 2014. Pursuant to the Agreement, theTrust provides services for the Ministry in relation to the administration of, and supportto, kōhanga reo. Mr Russell described the Master Agreement as one of the defendant'skey sources of funding. Under the Agreement the Trust receives approximately$2.56 million per annum from the Ministry.[51] Importantly, the Master Agreement contained a form of "no surprises" clause.Clause 11.3 provides:11.3 Where high profile issues arise in relation to any aspect of thisAgreement then:11.3.1 Either party will immediately advise the other if it becomesaware of any issue about the operation or management of thisAgreement, which has or may have media, political and/orpublic interest;11.3.2 Neither party will make or issue to the media or any memberof the public any oral or written statement or comment on theoperation or management of this Agreement, without priorconsultation with the other party; and11.3.3 Each party will promptly advise the other if it is required bylaw to provide information in relation to any aspect of thisAgreement.15 Refer [70] below.[52] Clause 11.4 provides that the obligations set out in cl 11.3 continue despite thetermination or expiry of the agreement.[53] Dr Kāretu accepted in cross-examination the Rākai list was a matter that fellwithin cl 11.3.1. He agreed the relevant obligation on the Board was to immediatelyinform the Minister of Education. Dr Kāretu was unaware of any disclosure to theMinisters in November 2013 when the Rākai list emerged. Nor, of course, was thereany disclosure in December 2013, or in January or February 2014. Dr Kāretu did notdispute that the first occasion on which Ministers were advised of the issues raised bythe Rākai allegations was through Mr Waho's communication with them on 18 March2014.Trust deed[54] Under the trust deed an express purpose of the Trust is to liaise with the Crownand government departments and other relevant bodies for the purpose of promotingthe kaupapa of Te Kōhanga Reo and its administration.[55] Mr Geiringer correctly submitted that liaising with the Crown for the purposeof promoting the kaupapa of Te Kōhanga Reo and its administration necessarilyrequires a level of openness as was, for example, expected under theMaster Agreement.[56] Dr Kāretu also accepted there was a clear contractual duty on trustees to informthe Ministers of the matters set out in Mr Waho's letter as well as a moral duty. Themoral duty was said to arise because Ministers were about to make an announcementas to whether or not the Trust had been misusing public funds.[57] Mr Waho was correct in his understanding of the duty on him, and his fellowtrustees, to inform Ministers of the Rākai allegations. It is not necessary, as thedefendant asserts, that Mr Waho should have pleaded the Master Agreement as thesource of his obligation. The fact is, Mr Waho acted consistently with the contractualobligations on the Board and the obligations on trustees under the trust deed.Trustees' duties[58] Stemming from the role of the trustee as appointed guardian of trust property,a trustee has a duty to act in the best interests of the beneficiaries.16[59] The principle is reflected in cl 4.3 of the trust deed which provides:Other than expressly provided for in this Deed, at all times the Board shall actto ensure the protection of the Trust funds.[60] The trustees were under a duty to prevent damage to the Trust from theunlawful acts of third persons.17 While that duty did not require trustees to keep therelevant Ministers informed of matters bearing on the operation of the Trust and theMaster Agreement between the Trust and the Crown, the fact trustees shied away fromkeeping Ministers abreast of matters bearing on the questionable use of Trust fundsmay be seen, at best, as a dubious discharge of the trustees' fiduciary obligations tothe Trust.Assessment[61] For the further following reasons I have reached the view the Board had noobjectively supportable factual foundation for asserting Mr Waho brought the Trustinto disrepute by "failing or refusing to acknowledge and respect confidentiality in hisdealings with the Board". Trustees were under a duty to inform Ministers of the Rākaiallegations. The Rākai allegations implicated not only TPO but Board members. TheBoard took the view the allegations were part of a confidential agreement dispute. Butthe allegations were plainly relevant to the Board as well as TPO. The Rākaiallegations raised issues of clear public interest and would be of manifest interest toMinisters. Mr Waho was correct in apprehending a duty of disclosure to the Ministers.Mr Waho cannot have acted in conformity with his contractual and fiduciaryobligations, yet by the same conduct brought the Trust into disrepute by failing torespect confidentiality.16 Andrew Butler "Trustees and Beneficiaries" in Equity and Trusts (2nd ed, Thompson Reuters,Wellington, 2009) at [5.3.1(4)].17 Charles E Rounds Loring and Rounds: A Trustee's Handbook (Wolters Kluwer Legal &Regulatory, United States) at 569.[62] The defendant says it was not the mere fact of Mr Waho's communication toMinisters that breached confidentiality. It was the manner of his communication. Theconduct underpinning the Board's resolution18 was Mr Waho's decision to act alone.As Dr Kāretu put it, the bone of contention for the Board, and the reason for theBoard's action, was that Mr Waho wrote to Ministers "off his own bat, not as part ofthe Board".[63] In cross-examination it was suggested to Mr Waho that he had engaged in"sneaky little behind-the-scenes emails" and that going to the Ministers was part of aconspiracy Mr Waho and Mrs Barrett had been plotting.[64] The imputation was unwarranted particularly in light of the evidence ofMr Waho's candour about his intentions at the time. Mr Waho's intentions wereunambiguous. Having confirmed his availability for the meeting on 18 MarchMr Waho also advised Mrs Olsen-Rātana, who was arranging the meeting, that hewould not commit to withholding from Ministers the matters traversed in his letter of10 March 2014 to the Board. In his email to Mrs Olsen-Rātana, copied to trustees,Mr Waho stated:The [Ernst Young] report is not consistent with what we know about what hasbeen happening with TPO and the Board. Discussing that report withministers forthrightly will require disclosure of those issues.I am committed to seeking a resolution of all issues in a manner consistentwith tikanga. That is why I agreed to participate in the hui. However, if thehui is not to take place until after the meeting with ministers then I cannotcommit to keeping matters hidden from the ministers that are relevant to thatmeeting.(Emphasis added)[65] In reply Mrs Olsen-Rātana said: "I am having real difficulty understandingyour issue?" She asked Mr Waho to clarify what he meant by "things hidden" and toadvise if he was conflicted. Mr Waho replied around midday on 17 March:I do not know what you mean by "conflicted". I am able to meet Ministerstomorrow and am committed to [doing] so.My letter of 10 March 2014 and emails since state my position.I remain committed to attending our hui on 23 March next.18 Set out above at [47].[66] Later that night Mr Waho emailed the Ministers. Mr Waho told Ministers hewas alerting them to matters relating to the use of funds by the Board and TPO.Mr Waho directed their attention to the brief history of events and his concerns as setout in his letter of 10 March, attached to his email. Mr Waho acknowledged thepurpose of the meeting scheduled for 18 March 2014 was to discuss the Ernst Youngreport but he did "not believe it would be honest to discuss the report with [theMinisters] and not reveal these other matters". Mr Waho added:I have been unable to convince my fellow trustees to address these concernscollectively. The meeting arranged to discuss those issues was cancelled byTina [Rātana]. I therefore feel compelled to raise these matters with youdirectly.[67] On the morning of 18 March a staff member from Dr Sharples' office contactedMr Waho to ascertain whether he intended to raise at the meeting the matters set outin his letter. Mr Waho advised he was content to leave it to Ministers to raise if theywished to do so. The meeting went ahead. But because Mr Waho did not propose toraise the issues at the meeting, staff did not direct Ministers' attention to Mr Waho'sletter, and the meeting proceeded with Ministers in ignorance of its content. For hispart, Mr Waho was unaware Ministers had not read his letter and were not otherwisebriefed.[68] No sinister connotation can be placed on Mr Waho's reticence at the meeting.Mr Waho alerted Ministers to his concerns. He advised Dr Sharples' office he wouldleave it to Ministers to initiate any discussion. There is no evidence of bad faith andbad faith cannot be imputed to Mr Waho's decision to not lead a discussion of theseparticular issues during a meeting called by the Ministers for their ministerial purpose.[69] The Board ought to have foreseen that the Ministers would have regardedpositively a prompt communication to them of issues bearing on the governance andmanagement of TPO. Dr Sharples' evidence was that any allegations of financialimpropriety were directly relevant to what was being discussed at the meeting on18 March 2014. Had the information been properly drawn to his attention before themedia statement, the statement would not have been issued it in the form it took.[70] On 19 March 2014 the Ministers were obliged to issue a further joint statementqualifying the announcement they made only 24 hours earlier that Ernst Young foundno misuse of public monies with regard to the Trust's purchases of services from TPO:However, there are still concerns about Te Pātaka Ōhanga, including newallegations brought to the attention of Ministers. Despite assurances given bythe Trust Board that it would respond to all concerns, it has not done so.'The Board has had many opportunities to restore public confidence in itsgovernance and management of Te Pātaka Ōhanga, and it has failed to do so,'says Ms Parata.[71] Mr Waho's letter was of extreme concern to the Ministers. It was of particularconcern that the Board had not itself raised the issues. Dr Sharples said he and theMinister of Education were grateful to Mr Waho for raising the issues with them butthey believed it was something that should have been done much earlier when theBoard became aware of the allegations, not many months later.[72] The defendant attempted to lay blame at Mr Waho's feet, for keeping Ministersin the dark. As Mr Waho was the only person at the meeting who knew he had senthis letter he was the only person who could have said something about it but he failedto do so. Therefore, it was suggested, Mr Waho was responsible for denying Ministersthe opportunity to defer making a media statement pending their further inquiries.[73] I regard as misplaced the defendant's focus on Mr Waho's failure at themeeting to direct the attention of Ministers to his letter of 10 March. The defendant'sfocus overlooks the only material point which is that the Board was cognisant of issuesthat, at the very least, the Board should have brought to the Ministers' attention. Inthat light, the fact the Board was unaware of Mr Waho's individual (and unsuccessful)attempt to inform Ministers is beside the point.[74] Dr Sharples' evidence was that he did not believe Mr Waho had brought theTrust into disrepute. Dr Sharples viewed Mr Waho's actions as upholding the integrityof the kaupapa. Dr Sharples elaborated:If anything, the fact that we knew we could rely on Mr Waho to act in a propermanner and raise these concerns with us was reassuring. It suggested thatthere was someone on the Board in whom we could have confidence to actwith integrity. As we said in our letter, we viewed Mr Waho's actions as arequirement of his trusteeship.[75] Dr Sharples and the Minister of Education had been concerned about theBoard's actions long before Mr Waho's letter. Correspondence from the Ministers tothe Board expressing disquiet and concern predated the events leading to thislitigation. It is not necessary to go into those matters. Dr Sharples made the point thatthe Ministerial requirement for reform was a result of issues and concerns prior toMr Waho's letter. Mr Waho's letter was not causative of the requirement for reform.[76] In light of the hui arranged for 23 March 2014 objection was taken toMr Waho's representation to Ministers that the meeting arranged to discuss the issueshad been cancelled. The objection, again, misses the point. Mr Waho approachedMinisters because he insisted they be fully informed. The fact a hui was to be heldafter the meeting with Ministers did not meet the requirement to properly informMinisters before the meeting or, at the latest, at the meeting.[77] Nor did Mr Waho "go behind the Board's back". He was candid, possiblyconfrontationally so, when he advised trustees he could not commit to keeping hiddenfrom the Ministers matters that were relevant to their meeting. The Board was onnotice of Mr Waho's likely intentions. In fact, Mr Waho's silence on the topic at themeeting (for the reasons I have outlined19) presented the Board with the opportunityto raise the issues itself. It did not.[78] Against the backdrop of the clear duty on the Board to inform Ministers of theRākai allegations, and that Mr Waho ultimately did so, there was no objectivelysupportable factual foundation for the assertion Mr Waho brought the Trust intodisrepute by taking the very step which trustees collectively and individually werebound to take.Second limb: making serious unfounded allegations to Minister of Education?[79] I inquire now into the existence of an objectively supportable factualfoundation for the assertion Mr Waho brought the Trust into disrepute by making19 Above at [67]–[68].serious allegations to the Minister of Education, shown by the SFO investigation to beunfounded.[80] When he emailed Ministers on the evening of 17 March 2014 Mr Wahoattempted to bring to their attention his concerns, as set out in his letter to the Boardof 10 March 2014, arising from the existence of the Rākai allegations. Mr Waho didnot pass on, or repeat, the Rākai allegations. Indeed, in cross-examination,Dr Sharples confirmed he did not know the substance of the Rākai allegations at thetime and he was still unaware of their substance when he gave evidence. It isestablished that Mr Waho did not pass on the Rākai allegations to Ministers.[81] In closing, this limb of the defendant's case rested on the assertion Mr Wahoacted without the knowledge or consent of the Board, and that he accused the Boardof being aware of allegations of serious wrongdoing by Rākai Tāwhiwhirangi whileactively concealing them and refusing to investigate them.[82] That description of Mr Waho's conduct is inaccurate. Mr Waho made threesubstantive points in his email to Ministers on 17 March.(a) He wished to alert them to "certain matters" relating to the use of fundsby the Board and TPO as he did not believe it would be honest todiscuss the Ernst Young report and not reveal these other matters.(b) He directed Ministers' attention to his attached letter to the Board dated10 March 2014 which set out his concerns.(c) He had been unable to convince his fellow trustees to address hisconcerns collectively.[83] Mr Waho's email accurately stated the position. He had raised his concerns atthe meeting on 20 December. The minutes record Mr Waho's objection to the waythings were being done. Yet the topic of the Rākai allegations was not included on theagenda for a Board meeting on 11 February. Mrs Olsen-Rātana explained that Boardmembers had the opportunity to add items to the agenda and Mr Waho did not do so.It is necessary at this point to digress in order to deal with Mr Waho's leave of absencewhich he took in February 2014.[84] In late January 2014 Mr Waho arranged a leave of absence from meetings ofthe Board to commit to teaching duties at his school during a teacher shortage. Underthe trust deed the Board could approve a trustee's leave of absence. Missing threemeetings without approval could constitute grounds for removal.[85] In cross-examination Mr Waho was pressed about his leave of absence andwhether he legitimately could have expected to be kept informed of the Board'sbusiness during this time. The implication seemed to be that Mr Waho did not evincemuch interest in the Rākai allegations during his period of absence and this contrastedwith his claims the trustees should have been more active in addressing the allegations.[86] The evidence satisfies me Mr Waho did indeed expect to be kept closelyapprised and involved where practicable and there was agreement to do so. Inparticular, Mrs Olsen-Rātana emailed Mr Waho on 23 January confirming sheunderstood Mr Waho would not be in a position to physically attend meetings until theend of April and he would try to provide his input in other ways. Mrs Olsen-Rātanawrote: " there will be a lot of emails and teleconferences to ensure your input".[87] As it happened Mr Waho was not even provided with the minutes of themeeting of 20 December until March 2014 when he asked for a copy. On receipt ofthe minutes Mr Waho realised they had been approved at a meeting in February 2014.Mr Waho had been give no formal notice of the February meeting. He had heard ofthe meeting informally through his friend and fellow trustee, Mrs Barrett. Mr Wahoactually returned to duties in February 2014, earlier than the leave of absence approvedthrough to April.[88] Returning to Mrs Olsen-Rātana's evidence that she did not send Mr Waho theBoard papers because he had applied for leave I regard the omission as unfortunate,to say the least. Mr Waho was expecting papers. His expectation was recognised inMrs Olsen-Rātana's email on 23 January 2014, reassuring Mr Waho of opportunitiesfor his input. Dr Kāretu accepted in cross-examination Mr Waho had an expectationhe was still to participate in Board business. I have little doubt the failure to keepMr Waho informed of Board business at this critical time fuelled Mr Waho'smisgivings about the Board's approach to the Rākai allegations.[89] I turn to Mr Waho's assertion to Ministers that he had been unable to convincehis fellow trustees to address his concerns collectively. The meeting scheduled for13 March 2014 was cancelled on 12 March.20 Mr Waho was critical of the latecancellation and sceptical about the reasons for doing so. Mr Waho's scepticism aboutthe reasons for the cancellation has a foundation in contemporaneous evidence. Onreceipt of Mrs Olsen-Rātana's notice that "the Board has decided to cancel themeeting" Mr Waho immediately replied:That cannot be correct. I am on the Board. I was not even told that apostponement of the meeting had been proposed. The letter from[Mrs Barrett's] lawyers notes that there have been other purported decisionsof the Board that were not made by the Board. In my letter, I noted that wehad collective and individual duties. I made it clear that if the Board did notfulfil these duties collectively then I regarded myself as obliged to take actionindividually. Tina assured me on 23 December 2013 that action would betaken. Almost three months has passed and nothing has happened. You havenow cancelled our meeting without a genuine reason. In the circumstances, Ibelieve that I may now have no choice but to take the action outlined in myletter. I will be discussing this with my legal advisers.[90] As far as Dr Kāretu was concerned, if Mr Waho was worried about the Rākaiallegations not being dealt with in a way that was satisfactory to him he should haveresigned as a trustee. By advising Ministers the Board had failed to address hisconcerns when he knew that was not true (because a meeting was scheduled to addressthem) and by making his extremely serious allegations to the Ministers without anyknowledge or discussion of whether they were true, Mr Waho refused the Board itschance of making that assessment for itself before writing to Ministers. Those actionsare said to have caused significant damage to the Board.[91] This element of Dr Kāretu's evidence demonstrates a real clash in perspectives.The Board's position is that Mr Waho caused damage to the Trust. Ministers, on theother hand, took a different view. They were:2120 Refer above at [23].21 Letter dated 19 March 2014 to the Board signed by the Minister of Education and AssociateMinister of Education. disappointed with the Board's inability to respond with the necessaryurgency to the public interest in allegations of inappropriate spending inTe Pātaka Ōhanga.[92] The Board had known about the allegations since December 2013. In my viewit was fanciful for the Board to contend that, in taking action a number of months later,Mr Waho pre-empted the Board's ability to assess the truth or otherwise of the Rākaiallegations.[93] There is a further aspect of this ground for removal that needs to be addressed.The Board asserted the Trust was brought into disrepute by Mr Waho's "seriousallegations to the Minister of Education now shown to be unfounded by the outcomeof the [SFO] investigation".22[94] The SFO wrote to TPO on 10 June 2014 to advise the outcome of its completedinvestigation. On the defendant's application I made an order suppressing publicationof details of the SFO letter. I am able to record, nevertheless, that the Rākai allegationswere not referred to the SFO for investigation. Further, while its limited investigationrevealed no criminal offending the SFO concluded other issues appeared to beattributable to failures in corporate governance.[95] The point of this recitation is twofold. First, the defendant's case rested onso-called serious allegations by Mr Waho to Ministers that the Board had taken nocollective action in response to the Rākai allegations. I have found that the evidenceestablishes Mr Waho was correct in making that claim. As at 17 March 2014, the dateof Mr Waho's email to Ministers, the Board had taken no collective action in responseto the Rākai allegations. The second point is that the SFO did not (of course)investigate Mr Waho's assertion that the Board had failed to act. The Board wassimply wrong, therefore, to resolve that Mr Waho's "serious allegations" were shownto be unfounded by the SFO investigation.22 The resolution is set out above at [36].Assessment[96] There is an evidential and analytical overlap with the first limb. In common,also with the first limb, there is a lack of an objectively supportable factual foundationfor asserting Mr Waho brought the Trust into disrepute by making serious allegationsto the Minster that were later found to be without foundation. Mr Waho's statementto Ministers on 17 March 2014 was perfectly correct. Four months had elapsed sincethe Rākai allegations emerged and three months had elapsed since the heated20 December meeting. Mr Waho had been unable to get traction from his fellowtrustees. Mr Waho's email to Ministers reflected the very tenor of his email toMrs Olsen-Rātana on 13 March.23 The Board had not formally taken any position withregard to the Rākai allegations much less discussed them. Months had passed. Andthe meeting scheduled to discuss Mr Waho's concerns was purportedly cancelled bythe Board yet without reference to Mr Waho, a Board member.Legal consequence of factual findings[97] The decision to remove Mr Waho as a trustee was made on 24 November 2014.The decision was based on the resolution of the Board on 27 August 2014. Thatresolution was in identical terms to the resolution passed on 31 March 2014. As I havefound, there was no objectively supportable factual foundation for either of the twolimbs the Board relies on for asserting Mr Waho brought the Trust into disrepute.Consequently, the threshold precondition for considering whether Mr Waho should beremoved was not met. There was no objectively supportable evidence capable ofjustifying the Board's exercise of discretion to remove Mr Waho. It follows that theBoard's decision to remove Mr Waho from office was unlawful.[98] The plaintiff adduced evidence to support his argument the Trust had not beenbrought into disrepute. I have not found it necessary to engage with that evidence, foreither party. Mr Geiringer does have a point however. On any view of the matter theTrust itself was not brought into disrepute. Arguably it was the Board and trusteeswho were brought into disrepute. The Board and the Trust have different reputations,not strictly anchored to one another.23 Set out above, at [89].Honorarium[99] By his statement of claim Mr Waho seeks an order for payment of theremuneration he would have received but for his unlawful removal. Counsel for thedefendant submitted that, as a charitable trust receiving limited funding, the defendantshould not be required to expend those funds on a former trustee who has:i. Alleged serious mismanagement of the Trust's and TPO's finances andthe possibility of what he believed to be inappropriate payments beingmade to a former staff member of TPO, and now considers thatnotwithstanding those concerns it would be appropriate for a paymentto be made to him; andii. Performed no work for the Trust since his removal in November 2014.[100] Mr Waho did not allege serious mismanagement of the Trust's or TPO'sfinances and I have concluded he was removed on an unlawful basis. Mr Waho'sunchallenged evidence is that he was advised that for so long as he was a trustee hewould be paid an annual stipend of $29,850 per annum. The defendant's contentionthat Mr Waho has performed no work for the Trust since November 2014 does not, inmy view, defeat his claim. But for Mr Waho's unlawful removal he would havecontinued to contribute to the work of the Trust and would have received thehonorarium which the Trust expected to continue to pay until the end of his tenure.[101] Mr Waho emerged from the debacle as a person of integrity and honour and inwhom Ministers were confident. He had performed the important and time-consumingrole of a trustee for eight years. For so long as he continued in that capacity he wouldhave received the honorarium. There was evidence, unchallenged, of the financialhardship Mr Waho has suffered in consequence of the unexpected termination of hishonorarium and the consequential impact on his health and personal life.[102] Mr Waho's claim is only for the sum he would have received between the dateof his removal until the determination of his claim. Mr Waho has been wronglyaccused. He acted to prevent an apprehended breach of trust and his actions weretaken in the interests of its beneficiaries. I have no doubt he should be paid thehonorarium which he has been denied as a result of the actions he took in pursuanceof his fiduciary duties.Outcome[103] The evidence has satisfied me that Mr Waho acted not only with a sense ofpersonal integrity but in conformity with the contractual and fiduciary obligation oneach member of the Board to disclose to the relevant Ministers allegations of seriouswrongdoing by TPO and trust Board members, and to take timely steps to address theallegations. There was no objectively supportable factual foundation for the Board'sassertion Mr Waho had brought the Trust into disrepute.[104] Mr Waho has succeeded in establishing he was unlawfully removed fromoffice and I make a declaration to that effect.[105] Mr Waho is entitled to payment by the defendant of the honorarium he wouldhave received but for his unlawful removal, for the period 24 November 2014, the dateof his removal, to the date of this judgment.[106] Mr Waho is entitled to costs. If the parties are unable to agree costs counselmay submit focussed memoranda not exceeding 10 pages._____________________________Karen Clark JSolicitors:Bennion Law, Wellington for PlaintiffChen Palmer, Wellington for Defendant