Baker v Waimakuku Whanau Trust Board Incorporated [2013] NZHC 2832 (29 October 2013)

Last Updated: 12 November 2013

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-000581 [2013] NZHC 2832

BETWEEN EDWARD HENRY BAKER and WHAKAWE CHARLES RAMEKA as trustees of THE THOMAS BAKER WHANAU TRUST Applicants

AND WAIMAKUKU WHANAU TRUST BOARD INCORPORATED

Respondent

Judgment: 29 October 2013

_{SUPPLEMENTARY JUDGMENT OF DOBSON J}

[1] I have considered all of the various memoranda filed since the issue of my judgment on 27 September 2013.¹

Further amendments to the trust deed

[2] The further amendments I have made are reflected in the terms of the deed

attached to this supplementary judgment and marked “A”.

[3] As to the parties, I was not advised that Mr Karaitiana had died. Obviously he will be removed from those specified as advisory trustees.

[4] The mis-spelling of “descendant” in the definition of “student” will be

corrected.

[5] Mr Bate has noted that the deed does not include a definition of a register of beneficiaries, notwithstanding the original drafting contemplating that there was one.

_{I have added an obligation after the creation of the trust in a new clause 3.1.1 that}

¹ Ignoring informal communications with the Registry, Mr Nee Harland filed memoranda on behalf of the respondent dated 2, 4, 7 and 8 October 2013. On its terms, that of 8 October replaced that on 7 October, and I have treated the 8 October memorandum as reflecting the concerns sought to be raised in relation to the terms of the trust deed for the respondent.

BAKER v WAIMAKUKU WHANAU TRUST BOARD INCORPORATED [2013] NZHC 2832 [29 October

2013]

will oblige the trustees to maintain such a register. Having made that provision, the references to registered beneficiaries in 10.2 and 10.7 can remain as originally drafted.

[6] The heading to clause 3.4.1 will be expanded to read “payments for dentures, glasses or hearing aids of beneficiaries”.

[7] The spellings of “tangihanga” will be corrected in clause 3.5.

[8] Addressing the concern raised by Mr Nee Harland, the “complete discharge” provided in relation to a retiring trustee in clause 4.5.2(e) will be qualified by adding a proviso in the following terms at the end:

Provided however that such discharge does not exempt a retiring trustee for any claims in relation to acts or omissions in bad faith.

[9] The mandatory obligation in clause 4.6.5 for each family branch to elect up to two trustees is to be re-cast in permissive terms, so that it will begin:

Members of each family branch may elect up to two trustees ...

[10] Clause 5.3(f) will be amended so as to read in part:

... the trustees shall regulate their own proceedings.

[11] Acknowledging Mr Bate’s concern about the process for possible registration as a charitable trust, the proviso I had proposed for clause 5.4 will be substituted with the following:

Provided however that if the trustees pursue registration under the Charities Act and are declined, then no appeal from such a decision is to be pursued without the trustees first obtaining an opinion from a barrister with at least seven years’ standing, to the effect that such an appeal is more likely to succeed than not.

[12] This retains a somewhat higher test for pursuit of that initiative than the trustees proposed. I remain satisfied that it is appropriate.

[13] The typographical in clause 7 will be corrected, to change “stationary” to

“stationery”.

[14] Comments have been made on potential inconsistency between clauses 10.4 and 11.1. That is to be resolved by expanding clause 10.4 as follows:

Annual meetings shall be chaired by the chair of trustees, or in his or her absence by any one of the trustees, who is to be chosen by the majority of trustees who are present at that meeting.

[15] An inconsistency in relation to the mode of voting has been identified in clause 10.8. It is to be resolved by removing the words “election or” from the second line.

[16] Other changes made result in the proposed 11.11 being superfluous and it is to be deleted.

[17] I accordingly direct that the trust deed in the form attached to this supplementary judgment is to be completed by the trustees, on the terms specified in [119] of my 27 September 2013 judgment.

[18] I have not reproduced the schedule of whakapapa that Mr Bate’s drafting

contemplated would be attached. That is the schedule that should be attached.

Additional concerns not addressed in the deed

[19] Mr Nee Harland’s memoranda filed subsequent to my judgment continue to raise challenges that are collateral to settling the appropriate terms for a trust deed for the Thomas Baker Whanau Trust (TBWT). Without detailing them, I have disregarded proposals for changes to the terms of the trust deed that he sought in order to advance claims for Mr Nigel Baker that are inconsistent with the judgments in CP27/2000. It is inappropriate for this trust deed to anticipate in any way a possible overturning of the judgments in CP27/2000. If that occurs, it will be for the Court to address the extent and terms of change in light of the terms of such a decision.

[20] Mr Nee Harland has also made extensive proposals to vary the trust deed in relation to access to urupa and upgrading of gravestones. I remain satisfied that the constraints on any commitments of resources by the trustees in this regard are

appropriately reflected in the terms of clauses 3.6.1 and 3.6.2. It is inappropriate for this trust deed to address the terms on which access might be granted. Rather, the trust deed provides for the limited circumstances in which the TBWT might commit trust assets to procuring access on behalf of Thomas Baker’s descendants, if the trustees consider that there has been a sufficiently serious, non-transitory obstruction to access that would warrant the commitment of such resources.

[21] Mr Nee Harland has made repeated criticisms of allegedly improper or inappropriate payments procured with trust funds by Mr Edward Baker. I direct that those criticisms, together with Edward Baker’s explanation for the issues they relate to, are to be referred by Mr Bate to the auditors appointed to audit the accounts for the TBWT. The auditor’s report is to address each of those concerns, and the adequacy of the explanations provided for them.

[22] Similarly, Mr Nee Harland relies on the absence of a birth certificate for Mr Rameka’s ancestor, Roihape, as justifying a determination that Mr Rameka should be excluded from those qualified to be a trustee of the TBWT. That serious matter cannot be addressed tangentially as Mr Nee Harland proposes. The present application constitutes an initiative by the current trustees to regularise the terms on which the trust is to be governed. The trustees are sufficiently on notice of the challenge to Mr Rameka’s status. I direct that the trustees have until 24 January

2014 to provide whatever evidence they consider appropriate to establish the line of blood descendants from Thomas Henry Baker to Mr Rameka. If the present respondent board wishes to challenge the adequacy of that evidence, then a separate application may be filed in the present proceedings, to seek resolution of Mr Rameka’s standing to continue as a trustee.

Costs

[23] I accept that my ruling on costs in [120] to [124] of my judgment was made without adequate consideration of issues that had not been raised before me, and which might influence the appropriate costs outcomes.

[24] I acknowledge first that the amicus may make application for an order that costs incurred by the Solicitor-General in provision of the services of the amicus might be paid or contributed to by other parties.

[25] I also accept that different considerations might apply to costs orders in relation to interlocutory steps in the proceedings, particularly as noted by the Associate Judge in the 13 October 2011 costs judgment.

[26] I accordingly propose that the amicus file and serve submissions in relation to any costs order sought in favour of the amicus, addressing separately interlocutory and substantive steps in the proceedings. That is to occur by Monday, 4 November

2013.

[27] Thereafter, Mr Bate will have until Monday, 18 November 2013 to file and serve submissions raising any matters additional to those set out in paras 10 to 33 of Mr Bate’s 4 October 2013 memorandum. Such submissions can also address any applications his clients may wish to make in relation to either interlocutory or substantive proceedings, as against the respondent.

[28] Thereafter, Mr Nee Harland will have until Monday, 9 December 2013 to file and serve submissions in response to matters raised by other counsel, and advance any costs issues from the perspective of the respondent.

Dobson J

Solicitors:

Hansen & Bate Limited, Hastings for applicants

Te Nahu Lovell & Co, Rotorua for respondent

Crown Law, Wellington for amicus curiae

Counsel:

P A Nee Harland, Havelock North

_“A”

_{THOMAS BAKER WHANAU TRUST DEED}

H A N S E N |B A T E

Lawyers Hastings New Zealand

DEED dated this day of 2013

PARTIES Edward Henry Baker of 509A Frederick Street, Hastings 4122; Whakawe Charles Rameka of 54 Marshall Avenue, Taupo 3330;

("trustees")

Ivan Northcroft of State Highway 1, RD2 Waitahanui, Taupo 3378; Wayne John Hesketh of 43 Yarmouth Road, Flaxmere, Hastings 4120; Tom Mill of 2 Hurst Avenue, Maraenui, Napier 4122;

Bill Grace of Turangi

(“advisory trustees”)

INTRODUCTION

A By deed of agreement dated 20 December 1995 the Crown settled Waitangi Tribunal Claim Wai147 for a total ex-gratia payment of $375,000.00 (the payments), which comprised an advance of $25,000 and a payment of

$350,000 on execution of the settlement deed.

B The payments were made in acknowledgment of the breach of the principles of the Treaty of Waitangi.

C By a judgment of the High Court in CP27/2000, Napier Registry, dated 29

August 2005, it was determined that the payments were required to be held and applied for the benefit of all the descendants of Thomas Baker being up to

380 persons as referred to in those proceedings, and further that there was no provision for capital distributions to individual beneficiaries.

D By a further judgment in CP27/2000 dated 28 April 2006, the High Court ordered that the trust established by the settlement deed dated 20 December

1995 was henceforth to be known as the Thomas Baker Whanau Trust. That judgment directed that those who had been responsible for administering the payments up until that time pay the sum of $306,552.90 in reimbursement of sums that had been applied out of the payments, to the trustees of the Thomas Baker Whanau Trust, together with interest on that sum for relevant periods. The April 2006 judgment appointed Edward Henry Baker and Whakawe Charles Rameka as trustees, and Ivan Northcroft, Thomas Mill, Wayne John Hesketh, Bill Grace and Peter Karaitiana as advisory trustees of the Thomas Baker Whanau Trust.

E The trustees considered it expedient to specify further terms for the trust, and have pursued an application to the High Court under s 64 of the Trustee Act

1956 for court approval to settle appropriate terms for the trust. The terms of this Deed have been approved by order of the High Court in CIV-2010-441-

581 in the Napier Registry, pursuant to a judgment in that proceeding dated

27 September 2013.

COVENANTS

1 DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this deed unless inconsistent in the context the following phrases shall have the respective meanings set out alongside:

"Date of Distribution" to be 19 December 2075, provided that if the Registrar of Incorporated Societies under section 11 Incorporated Societies Act 1908 incorporates the trustees of the trust fund as a Board pursuant to section 11, then there shall not be any date of distribution as the Trust shall have perpetual succession and shall administer the trust fund indefinitely pursuant to this Trust Deed.

"Beneficiaries" all the descendants by blood of Thomas Baker. By virtue of section

16(2) of the Adoption Act 1955, the descendants include children who were adopted pursuant to that Act prior to the execution of this Deed.

“Family Branch” comprises the persons descended from any of the issue of Thomas Henry Baker whose issue are identified in the chart of Whakapapa attached as Schedule 1.

“NZQA” New Zealand Qualifications Authority or its successor organisation.

"Student" means every eligible descendant by blood of Thomas Baker undertaking or proposing to undertake a course of study that is NZQA approved and is provided by an NZQA registered and accredited provider.

"Trust fund" the monies referred to in the Introduction and all further assets of any nature which may be received or acquired by the trustees by any means, and from whatever source, for the purposes of the trust confirmed by this deed, including any income received in respect of any assets held. Unless expressly provided otherwise, references to the trust fund shall include references to any and all parts of the trust fund.

1.2 Interpretation

In the interpretation of this deed, unless the context otherwise requires:

(a) reference to a person by relationship shall include a person having that relationship by adoption under the Adoption Act 1955;

(b) references to persons include individuals, partnerships, firms, associations, corporations and unincorporated bodies of persons, government or semi- government or local body or municipal bodies, and agencies or political subdivisions of them in any case whether having separate legal personality or not;

(c) words in the singular shall include the plural and vice versa; (d) words importing one gender shall include the other genders;

(e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;

(f) headings have been inserted for convenience only and shall not affect the construction of this deed;

(g) reference to a statute includes all statutes amending, consolidating or replacing the statute referred to;

(h) references to clauses and schedules shall be construed as references to the same in this deed; and

(i) the covenants expressed or implied in this deed on the part of a party shall bind all persons executing this deed who form that party and any two or greater number of them jointly and each of them severally.

2 NAME

This trust is known as the Thomas Baker Whanau Trust.

3 TERMS OF TRUST

3.1 Creation of trust

The trustees shall, from the date of execution of this deed, hold the trust fund upon trust on the terms specified in this deed. The origins of the trust are reflected in the deed of agreement dated 20 December 1995 between Her Majesty the Queen and Waimakuku Whanau Trust Board Incorporated, as affected by the judgments dated

29 August 2005, 1 May 2006 and 22 May 2007 in Napier High Court proceeding CP27/2000. To the extent that any potential conflict arises between the terms of this deed and the provisions of any of those other documents, the provisions of this deed shall prevail.

3.1.1 The trustees are to maintain, and update as necessary, a register of beneficiaries including all those persons known to them to qualify as such pursuant to the definition in clause 1.1 of this deed.

3.2 Payments out of trust

The trustees may as they think fit pay out of the income or the capital of the trust fund any of the following:

(a) The expenses of administering the trust fund; (b) Any debts or liabilities of the trust fund;

and may also out of such income or capital set aside reserves for the same purposes.

3.3 Investment of income

The trustees shall invest the income of the trust fund not paid or applied in any accounting period from time to time fixed by the trustees so as to accumulate to the intent that such accumulations shall be added to and form part of the capital of the trust fund provided that the trustees may in any accounting period resort to the accumulations of any preceding accounting period or periods and apply the same as if it were income of the trust fund arising in the current accounting period.

3.4 SPECIFIC TRUSTEE POWERS

The trustees shall have the following non-exclusive powers:

3.4.1 Payments for dentures, glasses or hearing aids of beneficiaries

The trustees may pay or apply so much of the income from time to time arising from the trust fund, to pay or reimburse the payment of the cost of

dentures, glasses or hearing aids for beneficiaries to a maximum payment in total of $500.00 per beneficiary for each set of dentures, glasses or hearing aids.

3.4.2 Payments to students

The trustees may pay or apply so much of the income from time to time arising from the trust fund, to meet the costs of education of students.

3.4.2.1 Costs of education

The term "costs of education" includes the costs and incidental expenses of any course of study or training at any school, polytechnic, university, college or other educational institution including post-graduate study that is NZQA approved and is provided by a NZQA registered and accredited provider.

3.4.2.2 Completion of education

The trustees may in their absolute discretion decide whether each student has completed the student's education and their decision shall be absolutely final and binding. For the avoidance of doubt the student should be encouraged to further the student's education as far as is possible and that a waiting period which may elapse between one course of study and a decision to proceed with a higher or different course of study should not lead the trustees to conclude that the student has completed the student's education.

3.5 Contributions to tangihanga costs

The trustees may pay or apply such of the income from time to time arising from the trust fund as they in their absolute discretion think fit, towards the costs of tangihanga for any descendant of Thomas Baker.

3.6 Access to Urupa and upgrading of gravestones

The trustees may pay or apply so much of the income from time to time arising from the trust fund, to obtain access to family Urupa and Wahi Tapu sites at Tarawera and for the upgrading of gravestones at Tarawera, including the unveiling of the upgraded gravestones. Provided, however, that the trustees may only pay or apply income to obtain access to those sites in the event that:

3.6.1 A majority of trustees are satisfied that a sufficiently serious, non-transitory obstruction to access to family urupa and Wahi Tapu sites at Tarawera is occurring to justify the commitment of trust resources; and

3.6.2 A majority of trustees resolve that the commitment of resources to pay for initiatives seeking to improve that access is an appropriate use of trust resources.

Solely for the purposes of this clause, a majority of trustees means the vote of all trustees representing all but one of the family branches of which trustee representatives are present at any meeting at which such resolutions are put. If a proposal to approve expenditure of this type is dealt with by circulation of resolutions in lieu of a meeting pursuant to clause 12.5 of this deed, then all the trustees from all but one branch of the family must approve of the resolutions circulated in lieu of a meeting to address the proposal.

4 TRUSTEES

4.1 Number of trustees

The number of trustees shall at all times (subject to the provisions of s 23 of the Trustee Act 1956) be no less than three. Further trustees shall be appointed by the existing trustees from time to time pursuant to clauses 4.4 and 4.5 so that when practicable up to two trustees have been appointed from each branch of the descendants of Thomas Baker. Trustees may also be appointed and replaced as a consequence of elections at an Annual Meeting of beneficiaries convened pursuant to clause 10, or in another forum as provided for in clause 4.6.

4.2 Retirement of advisory trustees.

The advisory trustees who are parties to this deed are to retire from their positions as such 14 days after execution of this deed, and the office of advisory trustees to the trust is to cease at that time.

4.3 Appointment of trustees representing separate branches of the family Consistently with steps taken prior to completion of this deed which are treated by the existing trustees as sufficient to appoint Todd Karaitiana and Jonathan Te Rire as representatives of their respective branches of the Baker family, those two will become trustees and, as with the existing trustees, shall hold office for the period up to November 2014. At that time, the office of trustees shall be subject to further elections as provided in clause 4.6 below.

4.4 Removal of trustee and power to appoint substitute trustees

Where a trustee fails to attend trustee meetings for a period of 15 months or greater, having been notified in writing at least 14 days in advance of each such meeting then that trustee shall be taken to have refused to act pursuant to section 43(1) Trustee Act

1956, and the surviving or continuing trustees for the time being, may by deed appoint a person or persons to be a trustee or trustees in the place of the trustee refusing to act. A copy of such deed shall be provided to the trustee refusing to act. Prior to using the power under this clause the remaining trustees shall consult with the family branch of the trustee failing to attend trustee meetings, and must appoint a replacement trustee from that family branch who is acceptable to that family branch.

4.5 Retirement of trustee and power of appointing replacement trustee

4.5.1 At any time any trustee may retire as a trustee by the execution by that trustee (the "retiring trustee") of a deed recording such retirement.

4.5.2 Such retirement shall:

(a) take effect forthwith upon the execution of the deed and advice of its execution being given to the remaining trustees; and

(b) shall not require any consent from or approval by any other person;

and

(c) take effect notwithstanding its effect on the administration of the Trust by any other trustees, either under the provisions of this deed or of the Trustee Act 1956; and

(d) operate to vest the Trust Fund in any other trustees on the terms set out in this deed pending appointment of a new trustee; and

(e) completely discharge the retiring trustee from the Trust provided however that such discharge does not exempt a retiring trustee for any claims in relation to acts or omissions in bad faith.

4.5.3 Such deed shall be executed and forwarded by the retiring trustee to the other trustees as soon as practicable after its execution, accompanied by all documentation duly executed by the retiring trustee required to give full effect to the retirement of the retiring trustee.

4.5.4 The reasonable costs and expenses incurred by the retiring trustee in connection with the preparation and execution of the deed evidencing the retiring trustee's retirement and incidental matters to complete the retirement shall be payable from the Trust Fund.

4.5.5 The surviving or continuing trustees for the time being may by deed appoint a person or persons to be a trustee or trustees in the place of the retiring trustee. Prior to making such appointment, the surviving or continuing trustee shall consult with the family branch of the retiring trustee, and must appoint a replacement trustee from that family branch who is acceptable to that family branch.

4.6 Trustee elections

4.6.1 Except for the shorter tenure of the trustees up to November 2014, trustees retire from office at the annual meeting which first follows completion of a four year term. The first such term shall commence at November 2014. Existing trustees are to remain in office after a trustee election only for the purpose of appointing new trustees, which they are required to do in accordance with the outcome of that election.

4.6.2 A trustee is eligible for re-election after retirement for up to three terms of four years. At the conclusion of a third term, the trustee will permanently retire. The initial period up to November 2014 is excluded from the period of trusteeship for the purposes of this clause.

4.6.3 All trustees must be descendants of Thomas Baker.

4.6.4 A beneficiary is only eligible for election as a trustee if a written notice of intention to nominate the person for election as a trustee has been completed by a descendant of Thomas Baker and provided to the Chair of trustees not less than seven clear days before the date of the annual meeting convened pursuant to clause 10 at which that election is to occur. Provided, however, that if any branch of the family proceeds to elect trustees at a separate forum as provided for in clause 4.6.5, then notice of nominations are to be provided to the chair of trustees not less than seven clear days before the date of that alternative meeting.

4.6.5 Members of each family branch may elect up to two trustees and may determine their own procedure for doing so. Each family branch shall decide, by consensus and from time to time, the forum considered most appropriate for election of trustees to represent that branch. Such elections may occur as a component of annual meetings of beneficiaries, or in another forum. Such

elections may be by postal vote or electronic facilities, but not proxy voting.

4.7 Trustee decisions

Except as otherwise provided in clause 3.6, all questions before the trustees shall be decided by consensus. However, where a consensus decision cannot be reached on a question, it shall, unless otherwise specified in this deed, be put as a motion to be decided by a majority of votes. If the voting is tied, the motion shall be lost.

5 GENERAL TRUSTEE POWERS

5.1 Trustees' powers

The trustees may, in their discretion, subject to the express provisions of this deed make investments for the time being authorised by the law of New Zealand (whether in New Zealand or elsewhere), in the name of the trustees or their nominee.

5.2 Investments as authorised by law

The trustees may invest any part of the trust fund then available for investment in such investments as are authorised by law.

5.3 In addition to the powers implied by the general law of New Zealand or contained in the Trustee Act 1956, the powers which the trustees may exercise in order to carry out its purposes are as follows:

(a) to use the fund of the trust as the trustees think necessary or proper in payment of the costs and expenses of the trust, including the employment of professional advisers, agents, officers and staff as appears necessary or expedient; and

(b) to purchase, take on lease or in exchange or hire or otherwise acquire any land or personal property and any rights or privileges which the trustees think necessary or expedient for the purpose of attaining the objects of the trust and to sell, exchange, bail or lease, with or without option of purchase, or in any manner dispose of any such property, rights or privileges as aforesaid; and

(c) to invest surplus funds in any way permitted by law for the investment of trust funds and upon such terms as the trustees think fit; and

(d) to borrow or raise money from time to time, with or without security, and upon such terms as to priority and otherwise as the trustees think fit; and

(e) to do all things as may from time to time be necessary or desirable to enable the trustees to give effect to and to attain the charitable purposes of the trust.

(f) subject to the provisions of this deed, the trustees shall regulate their own proceedings.

(g) to retain any investments or property coming into their hands as part of the trust fund, even if they are of a wasting or reversionary nature including any interest in real property to be used in part as for the purposes of the trust.

5.4 Incorporation and registration

The trustees are empowered but not obliged to seek incorporation in accordance with the provisions of the Charitable Trusts Act 1957 and registration with the Charities

Registration Board in accordance with the provisions of the Charities Act 2005. Provided however that if the trustees pursue registration under the Charities Act and are declined, then no appeal from such a decision is to be pursued without the trustees first obtaining an opinion from a barrister with at least seven years’ standing, to the effect that such an appeal is more likely to be granted than not.

5.4.1 In the event that registration as a charitable trust is achieved, then the following additional power will thereafter apply:

No power or reservation, express or implied, in this deed, shall authorise the trustees to do or suffer any act which does not further the charitable purposes as specified in this deed and the declaration of charitable purposes so specified shall at all times be paramount so as to exclude any act or omission which is or may be deemed to be not in accordance with such purposes. All of the income of the trust and any other benefit or advantage belonging to the trust shall be applied to the trust purposes.

6 TRUSTEES' LIABILITY

The trustees shall not be liable for, and shall be indemnified out of the trust fund for, any loss or liability which they may incur by reason of the exercise, manner of exercise or non-exercise of any of the powers, authorities or discretions conferred on them by this deed or by law. This indemnity does not extend to any acts or omissions undertaken in bad faith. The trustees will not be liable for any loss resulting from any investment made by the trustees in good faith.

7 TRUSTEE REMUNERATION

Trustees shall be reimbursed for direct expenses incurred only such as stationery and the cost of telephone calls in respect of trust business including mileage for travelling to meetings of trustees under the Fees and Travelling Allowances Act 1951. Trustees shall not be remunerated for their time or trouble expended upon trust business except that each trustee shall be paid $100.00 for each trustee meeting attended by that trustee.

8 ALLOWANCE FOR INFLATION

The monetary figures provided for as Trustee Remuneration shall be subject to increase for every year or part thereof from the first day of January in the year following the date of execution of the trust deed by an amount equal to the Consumer Price Index Figure (for the previous year) as a percentage of the relevant figure with the intent that the relevant figures shall not be diminished by the rate of inflation.

9 ACCOUNTS

9.1 True and fair accounts

The trustees shall keep true and fair accounts of all money received and expended as well as of the assets and liabilities of the Trust.

9.2 Audit

The trustees shall, as soon as practicable after the end of every financial year of the Board, cause the accounts of the trustees for that financial year to be audited by an independent Chartered Accountant appointed for that purpose and the audited accounts shall be made available on request to beneficiaries of the trust.

10 ANNUAL MEETINGS

_{10.1 An Annual Meeting of the trustees and beneficiaries shall be held no later than}

_{November in each year at a time and place fixed by the trustees.}

10.2 At least 20 clear days before the Annual Meeting the trustees shall post to all registered beneficiaries written notice of Annual Meeting (including copies of the Trust’s annual financial statements).

10.3 Annual meetings may be attended by all beneficiaries.

10.4 Annual Meetings shall be chaired by the chair of trustees or, in his or her absence, by any one of the trustees, who is to be chosen by the majority of trustees who are present at that meeting.

10.5 Minutes shall be kept of each Annual Meeting. Draft copies of the Minutes shall be made available upon request to beneficiaries.

10.6 The business of the Annual Meeting shall be:

(a) Minutes of the previous Annual Meeting(s), (b) Annual Report of the trustees,

(c) Statement of Accounts, (d) General business.

10.7 Any registered beneficiary wishing to give notice of any general business for consideration at any Annual Meetings shall provide written notice of the same to the Chair of trustees not less than seven clear days before the date of the meeting.

10.8 Descendants must be at least 18 years of age in order to vote. Each such descendant of Thomas Baker has one vote at an annual meeting. Voting is to be on the voices, but the Chairperson or any member may require a decision to be taken either by a show of hands or by ballot. Postal voting or proxy voting is not permitted.

11 MEETING OF TRUSTEES

11.1 At the first meeting of trustees after each annual meeting, the trustees must elect one of their number to be Chair until the conclusion of the next annual meeting. The Chair is to preside at trustee meetings and annual meetings.

11.2 Trustee meetings are to be held when and where the trustees determine.

11.3 It is not necessary for notice of a meeting to be given to a trustee who is absent from

New Zealand and has not supplied an electronic address.

11.4 To the extent that the procedure of meetings of trustees is not provided for this trust deed, the trustees may determine their own procedure.

11.5 A resolution in writing signed by each trustee is as valid and effectual as if it had been

passed at a meeting of trustees. The signatures of trustees need not be on the same copy of the resolution.

11.6 The trustees may arrange electronic communication facilities by which trustees may be deemed to be present at trustee meetings, so long as the electronic facilities are such that trustees may effectively participate and vote. Such electronic communication facilities include telephone or audiovisual facilities.

11.7 Any two trustees may call a special meeting of trustees for a specified purpose. Such meeting shall be held without delay, provided that written notice of such special meeting is to be given to all trustees at least 14 days before the meeting.

11.8 The trustees are to keep Minutes of their meeting and of all their resolutions and decisions. The Minutes shall be kept in a Minute Book, maintained by the Chair of trustees.

11.9 The trustees may from time to time appoint committees of trustees and other persons as thought appropriate but may not delegate any decision making powers to such a committee. Each such committee may determine its own procedure but must ensure that a record of proceedings of every meeting of the committee is prepared and made available to all trustees.

11.10 A quorum for trustee meetings is three trustees.

11.11 A conflict of interest arises in any situation where a trustee will derive a financial benefit from a matter including if the trustee is the parent, child or spouse of another person who will or may derive a financial benefit from a matter.

11.12 When a conflict of interest exists for a trustee, that trustee:

(a) must declare the conflict of interest at a meeting of trustees and their disclosure shall be recorded in the Minutes of the meeting; and

(b) must not take part in deliberations or voting on the matter, or be counted in the quorum.

If a trustee contravenes either paragraph (a) or (b) above, his vote or decision will not be counted and the trustee will not be counted in the quorum for the meeting.

IN WITNESS this deed is duly executed.

SIGNED by )

EDWARD HENRY BAKER )

as Trustee in the presence of: )

_Witness:

_Occupation:

_Address:

SIGNED by )

WHAKAWE CHARLES RAMEKA )

as Trustee in the presence of: )

_Witness:

_Occupation:

_Address:

SIGNED by )

IVAN NORTHCROFT )

as Advisory Trustee in the presence of: )

_Witness:

_Occupation:

_Address:

SIGNED by )

WAYNE JOHN HESKETH )

as Advisory Trustee in the presence of: )

_Witness:

_Occupation:

Address:

SIGNED by )

TOM MILL )

as Advisory Trustee in the presence of: )

_Witness:

_Occupation:

_Address:

SIGNED by )

BILL GRACE )

as Advisory Trustee in the presence of: )

_Witness:

_Occupation:

_Address:

Schedule 1 – whakapapa