Burnett Mount Cook Station Charitable Trust [2016] NZHC 2669 (8 November 2016)

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IN THE MATTER OF

BURNETT MOUNT COOK STATION

CHARITABLE TRUST

BETWEEN

THE PUBLIC TRUSTEE Substituted Applicant

MICHAEL ASKIN, TRUSTEE OF THE BURNETT MOUNT COOK STATION CHARITABLE TRUST

Original First Applicant

JOSEPH GORDON BUTTERFIELD DEREK JOHN TAYLOR

EUWAN BOYD LINDSAY HILSON Original Second Applicants

THE ATTORNEY-GENERAL GUIDE HILL STATION LIMITED LINDA BEVERLEY SUNDBERG JANINE NORA SUNDBERG CLINT MILES

ALANA MILES DAVID GOULD

Parties Directed to be Served

NEVILLE JOHN CUNNINGHAM MOUNT COOK TROPHY HUNTING LIMITED

MAUREEN MYRA VANCE DAVID MICHAEL LAWRY ROYAL FOREST AND BIRD PROTECTION SOCIETY OF

NEW ZEALAND INCORPORATED KATRINA GRIFFITHS

_{Subsequent Parties (Objectors)}

RE BURNETT MOUNT COOK STATION CHARITABLE TRUST [2016] NZHC 2669 [8 November 2016]

J V Ormsby, H T Shaw and S D Campbell for Original First and

Second Applicants

P J Page for Guide Hill Station Limited

G A Hair and M J McKay for L and J Sundberg

T J Castle for N Cunningham and Mount Cook Trophy Hunting

Limited (present only on 4 October 2016)

P Anderson for Royal Forest and Bird Protection Society of

New Zealand Incorporated

N Cunningham - Appearing in Person and for Mount Cook

Trophy Hunting Limited (but only on 15 and 16 September

2016) - T J Castle Counsel Appearing 4 October 2016

K Griffiths - Appearing in Person

M M Vance - Appearing in Person

D Lawry - Appearing in Person (present only on 15 and 16

September 2016)

J Finlayson - Appearing in Person

Professor H Tane - Appearing in Person (present only on 4

October 2016)

_Judgment:

_{8 November 2016}

Introduction	[1]
Present application	[6]
Procedural History	[11]
Background facts	[26]
Section 66 application	[44]
The law on s 66 applications	[50]
Parties’ positions on s 66 application	[60]
- Public Trustee’s position	[61]
- Attorney-General’s position	[64]
- Original Applicants’ position	[67]
- Guide Hill Station Limited and Gould Interests’ position	[75]
- Position of L and J Sundberg in opposition	[79]
- Position of N Cunningham and Mount Cook Trophy Hunting Limited in opposition	[84]
- Position of Royal Forest and Bird Protection Society of New Zealand Incorporated in opposition	[87]
- Position of K Griffiths in opposition	[92]
- Position of M Vance in opposition	[93]
- Position of D Lawry in opposition	[95]
- Position of J R Finlayson	[99]
- Position of Professor H Tane in opposition	[100]
Discussion	[101]
Conclusion	[138]
Decision/Direction	[139]
Costs	[140]
_Addendum	[142]

NOTE: Subsequent to the release of this judgment a short addendum has been added at para [142] with respect to two minor typographical errors which occurred at para [66] of the original judgment.

[1] Since the 1860’s, three generations of the Burnett Family have farmed land in

2610 hectares known as Mount Cook Station and Cox’s Downs (the Property). The Property and the surrounding areas have been described as iconic and of significant natural beauty. It was last farmed by a member of the Burnett family, the late Mr Donald Mount Cook Burnett (Donald). He farmed the Property throughout his life until his death on 15 July 2010 at about age 95.

[2] About eight months before his death, on 11 November 2009, Donald as settlor established a charitable trust known as the Burnett Mount Cook Station Charitable Trust (the Trust), the purposes of which were broadly to preserve and protect the natural and historic heritage and values of the Property and its surrounds. The original trustees appointed were Joseph Gordon Butterfield (Mr Butterfield) and Derek John Taylor (Mr Taylor). Other trustees were purported to be appointed being Euan Boyd Lindsay Hilson (Mr Hilson) and Michael Askin (Mr Askin).

[3] Sometime following Donald’s death, issues arose concerning the Trust. These concerned questions over the continuation of the role of the original trustees (their appointment as trustees having expired) and a decision they had purported to make to sell the Property which resulted in a sale agreement being signed. As a result, various applications were made to this Court. Broadly speaking, those applications were to appoint new trustees of the Trust, to vary the Trust and to obtain directions from the Court that the sale of the Trust property was appropriate and should proceed.

[4] In particular, the three specific applications brought by those parties Messrs Butterfield, Taylor, Hilson and Askin (whom together I will refer to hereafter as “the original applicants”) sought:

(a) The appointment of Mr Askin and Mr Hilson as trustees of the Trust under s 51 Trustee Act 1956 (the TA); and

(b) The approval of a scheme varying the Trust under s 32 Charitable Trusts Act 1957 (the CTA ), (the purpose of which it was said was to permit sale of the Property); and

16 September 2016, I dismissed that application, but instead appointed the Public Trustee as sole trustee of the Trust. Then on 4 October 2016, the second application noted at [4](b) above for approval of the s 32 CTA scheme was abandoned. Also on

4 October 2016 I heard final submissions from a range of parties directed to the last remaining application before the Court referred to at [4](c) above. It is that application which is the subject of this judgment. Specifically it seeks general directions under s 66 of the TA, “for approval of the sale of properties known respectively as Mount Cook Station and Cox’s Downs under s 66 of the TA 1956”.

[6] The s 66 application, as I have noted, was originally advanced in the names of the original applicants.

[7] Consequent upon the 16 September 2016 appointment of the Public Trustee as trustee of the Trust, the s 66 application, however, has been effectively taken over by the Public Trustee as applicant. Before me on 4 October 2016 Ms Hopkins, counsel for the Public Trustee, confirmed that the Public Trustee did wish to continue with this particular application.

[8] The s 66 application is generally supported by the original applicants and also by Guide Hill Station Limited and the Gould Family (who are purchasers under an unfulfilled agreement for sale and purchase of the Property which the former trustees purported to enter into).

[9] The application is opposed by a number of parties. These are Ms L and Ms J Sundberg, Mr N Cunningham and his company Mount Cook Trophy Hunting Limited, the Royal Forest and Bird Protection Society of New Zealand Incorporated, Ms K Griffiths, Ms M Vance, Mr D Lawry, Ms J Finlayson, and Professor H Tane.

[10] The Attorney-General (represented before me by counsel Mr Powell) appearing in his role as protector of charities, has confirmed that he simply abides the decision of the Court.

[11] It is useful at this point to set out more fully some history of this proceeding to provide context to the present application.

[12] The s 66 application formed part of what was an initial application made to this Court on 10 May 2016 by the original applicants. That application was one specifically seeking:

(a) Approval of the sale of properties known respectively as “Mount Cook Station and Cox’s Downs”...under s 21(1)(b) of the Charitable Trusts Act 1957.

(c) Directions under s 66 Trustee Act 1956 concerning the sale of [Mount Cook Station and Cox’s Downs] and the appointment of new trustees.

[13] Subsequently in July 2016, those parties brought and advertised a further application under Part 3 of the CTA to vary the purposes of the Trust. The essential purpose of this later application was to amend the objects specified in the Trust Deed so that the original trustees were able to secure the sale of the Property to Guide Hill Station Limited pursuant to the agreement for sale and purchase they had entered into.

[14] At the outset, the application under s 21(1)(b) of the CTA noted at [12](a)

above was abandoned. It was withdrawn on the basis that the original applicants had

not incorporated the Trust into a board pursuant to the CTA and therefore this section had no application.

[15] I have already noted that the initial and subsequent applications were brought by the original applicants. So far as they are concerned, however, the original trusteeships of Mr Butterfield and Mr Taylor, as first trustees of the Trust, had ended after their initial respective five year terms lapsed and they had not been reappointed. Similarly Mr Hilson, who Mr Butterfield and Mr Taylor had subsequently endeavoured to appoint as an additional trustee, was not properly appointed.

[16] In the meantime, as an interim measure, this Court had appointed Mr Askin as an interim trustee to enable the application noted at [13] above to proceed. This was the application to approve a scheme to vary the purposes of the Trust under Part

[17] Effectively, what the original applicants were seeking in their remaining applications were first, orders appointing Mr Askin and Mr Hilson as trustees of the Trust, secondly, directions under s 66 of the TA approving the sale of the Property (to Guide Hill Station Limited) and, thirdly, if it proved to be necessary, approval of the scheme varying the purposes of the Trust to enable the sale to proceed.

[18] As I have noted above, all these applications were strongly opposed by those parties outlined at para [9] above. Issues were also raised by Mr Powell, counsel for the Attorney-General. Ultimately however, Mr Powell indicated that the Attorney would simply abide the decision of the Court.

15 and 16 September 2016. These were the two days calculated and allocated at the request of the parties for the hearing of all matters. Unfortunately, there was insufficient time on those days to conclude the hearing on all the applications. Matters were adjourned part-heard to reconvene on 4 October 2016.

[20] In the meantime, however, on 16 September 2016, I was able to give my decision on one aspect of the applications on which I had heard full submissions

from all parties. This was the application under s 51 of the TA for the appointment of new trustees. That original application as I have noted at [17] above had sought the appointment of Mr Askin and Mr Hilson as new trustees. For reasons outlined in that 16 September 2016 decision, I declined this application, but instead appointed the Public Trustee as trustee of the Trust to act until further order of the Court was made.

[21] Directions were also given in that 16 September 2016 decision that the Public

Trustee was to provide a memorandum to the Court and the parties prior to 4 October

2016 outlining her/his position with respect to the Trust and the remaining applications before the Court. This memorandum and a report were provided on

[22] On 4 October 2016 all parties attended at the adjourned hearing of this matter. This included the Public Trustee who, as I have mentioned above, was represented by Ms Hopkins.

[23] The fate of the Trust’s two remaining applications to the Court (the s 66 application and the s 32 CTA application for approval of the proposed scheme) depended on the Public Trustee as new trustee. At that adjourned hearing, the Public Trustee confirmed that it was prepared effectively to take over the s 66 TA application on the basis that this was an application seeking general directions from the Court that the Trust was able to sell the Property. Ms Hopkins for the Public Trustee noted that this was what the wording of the s 66 application itself sought.

[24] Also on 4 October 2016 however, the second remaining application under s 32 of the CTA was abandoned and withdrawn by the original applicants. Leave to do so was granted.

[25] This left remaining only the s 66 directions application. It is that application which I will shortly turn to address. But first it is useful to outline certain background facts.

[26] The Trust, as I have noted, was established by Donald on 11 November 2009. The Property which was owned by him at the time was to be settled on the Trust under the terms of Donald’s will, a will he signed a short time later on 15 December

[27] On 10 December 2009 the Trust was registered under the Charities Act 2005. Its original trustees were Mr Butterfield and Mr Taylor.

[28] Donald died on 15 July 2010. Under his will his sister Catriona Baker (Ms Baker) was given the right to free use and occupation of the house on part of the Property (at Cox’s Downs) during her lifetime. Ms Baker died on 13 November

[29] It was not until 30 November 2015 that the Property was transferred from Donald’s estate to the Trust. The reason for this delay it seems was that a decision had been made not to transfer the Property until expiry of a lease of part of the land to Neville John Cunningham (Mr Cunningham) (or his company Mount Cook Trophy Hunting Limited), in light of difficulties which had arisen surrounding the lease.

[30] At about the time of the transfer of the land to the Trust, the original trustees purported to appoint Mr Hilson as a further trustee. As I record at [15] above, this was ineffective, however, as only validly appointed trustees could exercise the power to appoint a new trustee. Mr Taylor and Mr Butterfield had allowed their original five year terms as trustees of the Trust to expire without renewal. Their appointment of Mr Hilson as a result was invalid.

[31] Mr Butterfield, Mr Taylor and Mr Hilson then put the Property out for sale by tender. This resulted in them accepting a tender and entering into an agreement (purporting to be in their capacity as trustees of the Trust) to sell the Property to that tenderer, a Mr David Gould of Guide Hill Station Limited. The sale agreement (the Gould Sale Agreement) determined a sale price, I understand, of $4.7 million and provided for settlement to occur on 29 April 2016. That settlement has not occurred,

although, as I understand it, arrangements of some sort have been concluded with Mr Gould and his company to farm the land since then, pending resolution of matters.

[32] It does seem the decision to sell the Property related very much to what I am told was a significant dilemma faced at the time by the original applicants. This dilemma was said to be twofold. First, it was said this related to the difficult and uncertain financial position which the loss-making farm operation on the Property had suffered for some years and was continuing to suffer. And, secondly, it was claimed the Property was subject to a growing wilding pine infestation and it faced very substantial costs to control this which it could not afford.

[33] Around the time of entering into the Gould Sale Agreement for the Property, a fourth trustee, Mr Askin, was purported to be appointed. However, for the same reason that Mr Hilson’s appointment was invalid, as described above, Mr Askin’s appointment was also invalid.

[34] It seems to be accepted now that each of the steps which I have described above, which the parties purported to take after 11 November 2014 (being the date when their terms as trustees of the Trust had expired), were steps taken when Mr Butterfield, Mr Taylor and Mr Hilson were not validly appointed as trustees.

[35] As a result, on 9 May 2016 the current proceeding was commenced. The original applications, as I have said, sought orders under the TA as to appointment of new trustees and approval of steps taken when the original applicants were trustees de son tort including the sale of the land to Mr Gould’s company, Guide Hill Station Limited.

[36] Once this proceeding was issued a further step then took place. This was the application brought under Part 3 of the CTA, whereby a draft scheme to vary the purposes of the Trust under s 32 was submitted to the Attorney-General. A resulting report was provided by the Attorney-General under some urgency on 23 June 2016.

[37] As a result of concerns raised by counsel for the Attorney-General about the standing of the parties in question to bring these proceedings under the CTA, without opposition on 11 July 2016, Mr Askin was therefore appointed by this Court as an interim trustee of the Trust.

[38] Subsequently, this appointment of Mr Askin as interim trustee was revoked in my 16 September 2016 decision, when instead the Public Trustee was appointed as sole trustee of the Trust.

[39] It is useful also in considering the present application and the charitable purposes of the settlor in establishing the Trust, to turn to the Trust Deed itself. In doing so, the charitable objects of the Trust are outlined at clause 5.1, and are described specifically as follows:

(a) To secure the future protection of the land known as Mount Cook Station and Cox’s Downs and their surrounds in recognition of their special status by virtue of their natural history and original settler status;

(b) To provide awareness of the original and valuable heritage and natural environment and environment and history of Mount Cook Station, Cox’s Downs and their surrounds;

(c) To protect and preserve the trees, plants, flora (but not wilding pines or other noxious trees or plants) and fauna existing on Mount Cook Station, Cox’s Downs and their surrounds and to preserve such lands for future generations of New Zealand;

(d) To promote the permanent preservation for the benefit of the people of New Zealand of the land and buildings of beauty or historical environmental interest at Mount Cook Station, Cox’s Downs and their surrounds in order to preserve, as far as practical, their natural aspects and features;

(g) For such other charitable purposes associated with enhancing and protecting the High Country environment at Mount Cook Station, Cox’s Downs and their surrounds; and

[40] From these provisions, it appears Donald’s primary charitable purpose as settlor in general terms was to preserve for public benefit the heritage, both natural and historic, and the environmental value of the Property and its surrounds. In this regard it is useful at this point to note certain matters pointed out in his submissions by Mr Powell for the Attorney-General:

(a) Clauses 5.1(a) and (c) noted at [39] above illustrate this by referring to securing the future protection of the Property and its surrounds by virtue of its natural history and original settler status and the obligation to protect and preserve the flora and fauna, specifically excluding wilding pines or other pests, and to preserve the land for future generations.

(b) The same theme is returned to in clause 5.1(d) which commits the Trust to promote the permanent preservation on the Property of the land and buildings of significant beauty or historical environmental interest, in order to preserve their natural aspects and features.

(c) Clause 5.1(b) seems to be incidental to the heritage and environmental protection purposes, by simply providing awareness of the heritage and other values, presumably to the general public.

(d) Clauses 5.1(e) and (g) are also referable to the primary charitable purpose since the natural and High Country environment is part of the heritage value Donald as settlor sought to protect. Indirectly they could also be referable to environmental conservation which could also be a charitable purpose given its predominant public focus.

(e) Clause 5.1(f) bears the weakest connection with this natural history and heritage preservation. Since the facilitation of access to the property is for scientific research and education, it connects more strongly to the advancement of science and education, which would also be a charitable purpose.

[41] The charitable purposes outlined in the Trust Deed would appear clearly to fall within the fourth head of charitable purposes. A trust for the preservation of the environment or the preservation of land may be charitable – Re Centrepoint Community Growth Trust¹and Re Bruce.²

15 December 2009 signed by Donald and purporting to be his non binding “Letter of Wishes” addressed to the Trustees (the Letter of Wishes) was put before the Court at the hearing. Although some tentative and vague complaints were suggested to the Court by one or two of the opponents to the present application over the authenticity of this document, there was nothing of any significance advanced before me to back- up these unsubstantiated comments. The Letter of Wishes was dated and signed 15

December 2009, the same day Donald signed his will. The document was possibly signed at his lawyers’ offices. From evidence before me (of Mr Hilson), the Letter of Wishes was likely to have been typed on Donald’s instructions at Timpany Walton’s offices and then signed by Donald that same day. In light of all this and other comments advanced in evidence before me over Donald’s position during his life on aspects raised there, I am satisfied the Letter of Wishes is an authentic and genuine document.

[43] That said, and acknowledging at the outset, that it is a specific statement and record of what were non-binding wishes, nevertheless it is useful to set out in full this Letter of Wishes which I now do.

On 16^thMay 2009 Mt Cook Station Run celebrates 145 years under the control of the Burnett family. Some history of that occupancy and family attitudes resulting from that experience need to be recorded and used in an understanding of my non-binding wishes for the operation of the Burnett Mount Cook Station Trust which I set out herein.

1. My father, Thomas David Burnett was MP for the large South Canterbury electorate for twenty years and had much influence on the development of the successful 1948 Crown Pastoral Land Act and the successful Downlands water scheme. Our attitudes in determining farming practice on Mt Cook Station have been influenced by those historic occurrences.

2. My sister has been a long time financial supporter of the World Wildlife Fund and a wildlife refuge which still exists was set up by my father in the 1920s to protect the teaming variety of river bird life on our property extending from our boundary by the Tasman Moraine right out to our then existing Tasman Islands Run and down to the natural head of Lake Pukaki. While the area we farm has now been drastically reduced we would want to see the Trust continue the inculcation of these attitudes as part of its management of the station.

3. During my 71 years of management of the property there has been no intentional burning off and so many native plant species have been saved. Sheep stocking was always conservative, partly because it was a property with a high snow risk and partly with the deliberate intention of preserving the cover on the property. I note that fields and slopes on this property are stocked with prolific Mt Cook lilies (Ranunculus Lyalli) more prolifically than anywhere else in the upper Tasman Valley including the Hermitage area and this is the result of our no burning and low stocking regime. I have never used artificial fertiliser and would wish that my Trustees would continue to observe this policy. I believe it is better for the health of native plants and of animals not to do so but to stay organic.

4. Thar first appeared in numbers about 50 years ago. I recognised them as a menace to mountain herbage and flora then and I have over the years selected good hunters and instructed them to shoot every animal not just trophy ones. That policy should continue. DOC Twizel know I have been supportive of their attitude in this matter and I would wish my Trustees to continue that policy.

5. Mainly as a result of a clause in early leases requiring planting of trees for shelter etc we are now faced, as are many other high country properties, with the tremendous challenge, indeed the crisis, of dealing with wilding trees. I have spent much money and much labour with chainsaws and other means to try and control the spread of these trees. We continue but recognise the cost is enormous. We have recently carried out trials in power spraying and are greatly cheered by the results. My current intention is to incorporate spraying as an annual management tool. Some means of control must be found for the property to survive.

I record these background facts and current policies in the strong hope that the Trustees of this Charitable Trust will continue to husband the property with these principles and facts in mind.

[44] This is the last remaining application before the Court. As I have noted, it is one which is brought now by the Public Trustee who has taken over the original s 66 application advanced under the names of the original applicants.

[45] It is important to repeat from the application itself filed originally on 10 May

2016 specifically what remains. This seeks from the Court what are described as:

(c) directions under s 66 of the Trustee Act 1956 concerning the sale of the abovementioned properties...(which relate to approval of the sale of properties known respectively as “Mount Cook Station” and “Cox’s Downs” (Certificates of Title CB17A/704, CB17A/702, CB17A/701, CB26F/240,

[46] The essence of this s 66 application therefore, is one seeking directions from the Court that the sale of the Trust’s Property generally by the Trustee is able to be undertaken and approved.

[47] Notwithstanding this wording, at the initial hearing on 15 and 16 September

2016 of matters before me, Mr Ormsby, counsel for the original applicants, advanced the application on the basis that it was one seeking approval of and directions from the Court for the specific sale of the Property to Guide Hill Station Limited and the Gould interests pursuant to the Gould Sale Agreement.

[48] I need to make it clear, however, that this was not the basis upon which Ms Hopkins confirmed that the Public Trustee took over the present s 66 application as applicant. This was simply, that the application was one seeking directions of this Court to approve in general terms a sale/disposition of the property by the Trust, and not in any way related to any particular sale or indeed the Gould Sale Agreement. Indeed from the terms of the s 66 application itself, I am satisfied in any event that the stated directions sought do not specifically relate to the Gould Sale Agreement or any particular specified sale.

[49] My consideration of the present s 66 application will proceed on this basis. Notwithstanding this, however, as will become apparent later in this judgment, some reference will be made to the Gould Sale Agreement generally, and the position of Guide Hill Station Limited as a possible purchaser, insofar as it may assist a broad consideration of the application itself.

(1) Any trustee may apply to the court for directions concerning any property subject to a trust, or respecting the management or administration of any such property, or respecting the exercise of any power of discretion vested in the trustee.

(2) Every such application shall be served upon, and the hearing may be attended by, all persons interested in the application or such of them as the court thinks expedient.

[51] Garrow and Kelly Law of Trusts and Trustees,³in giving a summary of how the jurisdiction to give directions under s 66 is to operate, in part made the following comments:

24:34 To summarise or extract some principles from these decisions under s 66 of the Trustee Act:

(a) The jurisdiction is intended essentially for private advice by the Court to trustees where they are in doubt as to the propriety of action that is contemplated. It is not intended that past actions or hypothetical situations be dealt with. However, trustees can apply under s 66 to correct an error if there is no legal impediment to such an order and it is appropriate for directions to be given. Several options can be put to the Court.

(b) Questions of substance or importance involving matters in dispute or contest between trustees and allegations of breach of trust (either implicit or explicit) do not lend themselves to an application under s 66.

(c) An application must be upon stated (that is, agreed) facts. If facts cannot be agreed they ‘should be established in the normal manner’. The section is not intended to determine the rights of adversarial parties.

³Garrow and Kelly Law of Trusts and Trustees (7^thed, Lexis Nexis, Wellington 2013) at [24.34].

questions arising in connection with the furnishing of accounts; the settling of minor problems of administration; approval of a sale, purchase, compromise or other transaction; the execution of the trust and whether to embark upon litigation.

(e) If difficult questions of law or of interpretation of the empowering deed or will arise then an application for interpretation (rather than an application for directions) can be made to the High Court which has inherent jurisdiction in such matters.

(f) In Melville [Melville v NRMA Insurance New Zealand Ltd & Others (High Court, Wellington, CP70/01, 17 April 2002, Wild J)] reference was made to seeking the Court’s assistance on points of minor importance arising in the administration of the trust. The decision does not specify exactly what ‘minor’ includes. It is submitted that it does not include trivial matters: where the trustee is not in doubt, or the exercise of a discretion which competent trustees are empowered and should determine. The section is not intended to immunise trustees against all possible claims. If significant issues affecting the trust arise then they may be more appropriately dealt with on different bases such as a scheme of arrangement under the Charitable Trusts Act 1957 or an application for variation under either s 64 or s 64A of the Trustee Act 1956. It is submitted that the word minor was used to distinguish between issues of trust or estate administration (which are appropriate to s 66), and substantial factual disputes and allegations of breach of trust which are not.

(g) In Neagle it was held that beneficiaries can make applications for directions to the High Court in its inherent jurisdiction where for some reason the trustees have not done so. Similar principles apply to such applications which would normally be made seeking a declaratory order. However, it was also held in that case that a beneficiary would have to show actual loss or potential loss. The Court would normally be slow to exercise its inherent jurisdiction to allow an application which s 66 of the Trustee Act does not allow. As stated above, O’Regan J in Gailey v Gordon [Gailey v Gordon [2003] 2 NZLR 192] and Kos J in Jaspers v Greenwood [Jaspers v Greenwood [2012] NZHC 2422 at para [21]] stated that beneficiaries cannot apply under s 66. In England a beneficiary, protector or guardian ad litem of a beneficiary can seek the court’s guidance. It is submitted that in New Zealand beneficiaries should first look to s 68 of the Trustee Act 1956 (which is discussed in Chapter 25 of this text) rather than s 66.

(h) If trustees cannot agree on a course of action then an application under s 66 is not the appropriate course. Rather, consideration needs to be given to other steps such as the removal of trustees and appointment of new trustees. This is different from the trustees putting forward more than one option which is appropriate to an application under s 66.

(i) When making such an application the trustee must place all relevant material before the Court. The Court is engaged in determining what

ought to be done in the best interests of the beneficiaries of the trust and not determining the rights of adversarial parties. Protection of trustees may depend upon the accuracy of the information provided. For example updated and accurate valuations are expected.

24.11] indicate that trustees can in some situations surrender their discretion if they wish to do so but this does not mean that all s 66

Court’s role normally is to give advice or directions in respect of the application before it and not to assume the trustees’ role of

(k) The Court will not under s 66 approve a capital distribution, which is clearly contrary to the provisions of the empowering document.

(l) Having obtained directions or advice from the Court, trustees are normally required to follow that advice, particularly if they subsequently seek to take advantage of the protections afforded by s

(m) Trustees cannot surrender an obligation to exercise discretion from time to time in the future, because it depends on circumstances which may change from time to time and the Court itself would have to be informed of these changes from time to time.

(n) A trustee is entitled to an indemnity for costs reasonably and properly incurred in making an application for directions. However, trustees should not be unreasonably timid or seek to avoid unpopularity by making unnecessary applications. If they do this they may not be entitled to have their costs paid out of the estate or trust.

(o) In Public Trustee v Cooper the Court described four types of appropriate proceedings for directions:

(ii) proceedings where there is no doubt as to the extent and nature of the power but the question is whether the proposed action is a proper exercise of the power;

(iii) cases of surrender of the trustees’ discretion; the court will only accept this for good reason (such as the trustees being deadlocked).

(iv) cases where the trustees have taken action and that action is being attacked as being either outside their powers or an improper exercise of powers.

(p) Section 66 applications are available to trustees of a charitable trust but in some circumstances an application for a scheme under the Charitable Trusts Act 1957 may be more appropriate.

[52] Recently, however, s 66 of the TA was the subject of a detailed consideration in this Court in the decision of Kós J in New Zealand Maori Counsel v Foulkes.⁴In outlining his approach to s 66 Kós J said:

[46] First, s 66 may be used to resolve any live question of interpretation of the Trust Deed, as well as any uncertainty as to the exercise of a power. The former power necessarily must fall within s 66, as well as the other matters provided for expressly. It is, therefore, wider than the oft cited passage in Re Allen-Meyrick’s Will Trusts.⁵

Wherever trustees have some discretionary power of this kind, where it is properly described as a power or a pure discretion, and they are in doubt how, in the relevant circumstances, they ought to exercise their discretion, they are able to come to the Court and obtain directions what is the proper thing for them to do.

That might seem (although I do not believe it was intended) to confine the Court’s role to an advisory one on how powers may be exercised. But that is not in fact the position at all. Section 66 is a robust, parallel source of jurisdiction to resolve any substantial question of law concerning the meaning or administration of a trust. It is not, in my view, confined to points of “minor importance arising from the management of a trust”.²⁴

[47] Secondly, the existence of a dispute is not fatal to the exercise of a discretion. Indeed the existence of a dispute, or at least a doubt is essential. The Court’s function is not purely advisory, or to be invoked to resolve abstract hypotheses. In this case the parties are in dispute, but are at least united in seeking the Court’s ruling on questions of interpretation.

[48] The more profound the dispute, the more care must be taken that those with a legitimate interest in the outcome are represented. In particular, beneficiaries. That is the first caveat. That does not, however, preclude trustees in disagreement from seeking direction. But it may not represent the last word where a Court finds trustees have been acting in a manner inconsistent with their obligations under the Trust Deed. In such cases an application under the ordinary inherent equitable jurisdiction is likely to be more appropriate, and more cost effective. Otherwise affected persons not party to the s 66 proceedings will be entitled to raise the same issues anew, and seek different outcomes.

[49] Fourthly, the relief sought must not involve resolution of any disputed issues of facts. That is the second caveat. Like the Declaratory Judgments Act 1908, the s 66 procedure is entirely unsuited to resolving

such issues. A s 66 application proceeds on the basis of affidavit evidence. An agreed statement of facts will normally be present to the Court.²⁵

[50] This four part formulation is a perhaps more liberal interpretation to engage s 66 than was found by this Court in Neagle v Rimmington²⁶or in Melville v NRMA Insurance NZ Ltd. But the caveats above set out what I think are the relevant constraints of the jurisdiction. If respected, I do not think that the mere possibility of separate and subsequent beneficiary-led litigation should deter trustees from engaging this useful jurisdiction.

²⁴Contrast Melville v NRMA Insurance NZ Ltd (HC) Wellington CP70/01, 17 April 2002 at [58].

I do not think that decision intended to confine the jurisdiction thus, although it is discouraging of substantive disputes being presented under s 66.

²⁵_{Melville v NRMA Insurance NZ Ltd
(HC) Wellington CP70/01, 17 April 2002 at [58](c).}

[53] This decision of Kós J in the New Zealand Maori Council case post-dated the

2013 edition of Garrow & Kelly Law of Trusts and Trustees, the quotations from which I note at para [51] above. Although it is not necessary for me to express any firm views on these matters, given the general agreement of all parties before me that this is an appropriate matter for directions to be given in terms of s 66, at this point I would simply suggest that the modern and perhaps more extensive possibilities for using s 66 expressed in the comments of Kós J above, may well have some merit.

[54] Leaving these matters on one side, and returning to the present s 66 application itself, what is clear is that applications of this type are available to trustees of a charitable trust such as the present Trust. On this aspect Garrow and Kelly Law of Trusts and Trustees at para 24.30 states:⁶

24.30 In Re Powell [2000] NZFLR 269, the trustees sought directions under s 66 concerning any property subject to a trust. Doogue J stated that the settlement put before the Court would see two-thirds of the estate, which the deceased regarded as going to charity, being taken outside a charitable disposition. The Court declined to make orders under s 66 and stated that the appropriate course was for any proposals to be put forward as a scheme under the Charitable Trusts Act 1957. However in Dawson and others v The Canterbury District Health Board [(Unreported, High Court, Christchurch, CIV 2003-409-485, 3 September 2004, Chisholm J)] Justice Chisholm dealt with an application under s 66 regarding a charitable trust created by a will.

[55] From a broad perspective, there can be no argument that s 66 is designed to remove doubts regarding the propriety of a prospective course of action proposed by the trustee of a trust. Garrow and Kelly note that the Court may decline to give directions under s 66 where there are facts in issue or where a breach of trust is alleged. It could be said, however, that this reflects the forensic limitations of a standalone application for directions and a trustee is more likely to be directed to make application under the Court’s inherent jurisdiction.

[56] In the present case, however, this Court has heard evidence and submissions from a wide range of parties relating to the circumstances surrounding the Trust. A decision has already been made as to the appointment of a new trustee and I am satisfied that the Court has before it all parties who are interested in the subject matter. Indeed, these matters were publicly advertised when the application to approve the proposed scheme under s 32 of the CTA was still alive, and this essentially attracted the large number of objections from the objectors I have noted at para [9] above.

[57] The present proceeding, in my view is an entirely appropriate one for the Court to utilise its s 66 jurisdiction. The issue here involves a pure question of interpretation of the Trust Deed and whether a direction for sale or distribution of the Property is appropriate. Under all the circumstances prevailing here, the Public Trustee only recently having been appointed as Trustee of the Trust, it is entirely prudent and appropriate, for the Public Trustee to seek from this Court directions on the propriety of action that it may contemplate. This proceeding involves a legitimate question as to the proper exercise of this power of sale by the present trustee. As to that aspect, there are really few evidential disputes of facts here, although opinions between the various parties may diverge. Some disputes on certain matters between the range of parties who attended the hearing of this matter have arisen, but that is not fatal to the exercise of the Court’s discretion. It does seem, in any event, that all parties are unanimous in seeking the Court’s ruling in this case on the question of interpretation at issue.

[58] And before me Ms Hopkins for the Public Trustee, despite indicating that the

Public Trustee’s position on the s 66 application was simply to abide the decision of

the Court, did say that it would be of some particular assistance to the Public Trustee

[59] I now turn to consider the positions advanced before me by the various parties on the s 66 application.

[60] Consideration of this application must, of course, begin first with ascertaining what was the settlor’s charitable purpose in setting up the Trust. Trustees of all charitable trusts, and indeed the Public Trustee as trustee now of the present Trust, have a duty to ensure that their actions advance the charitable purposes set out in that Trust’s particular Trust Deed. As the learned authors of The Law and Practice of

Trustees are the representatives of the trust. They are fiduciaries who hold the trust property for the benefit of the charitable purposes set out in the deed or instrument which set up the trust. They have to deal with the property in the manner set out in the constituting instrument, and in accordance with the law, and may be subject to proceedings taken out by interested persons who have standing if they fail to perform. The Attorney-General has the ultimate power to ensure accountability, as set out in s 58 of the Charitable Trusts Act

Lawful for the Attorney-General...as he in his discretion may think fit, to examine and enquire into all or any charities in New Zealand...examine and enquire into the nature and objects, administration, management and results thereof, and the value, condition, management, and application of the property and income belonging thereto.

[61] At the outset as I have noted above, Ms Hopkins for the Public Trustee indicated that it was desirable and helpful for the Public Trustee in exercising its role as trustee here to have a general direction from the Court regarding a possible sale of the Trust’s property. The Public Trustee’s initial view, she said, was that it was not necessary for the objects of the Trust to be varied for such a sale to proceed and it

_{would be possible for the Public Trustee to make the relevant decision
in the context}

⁷Susan Barker, Michael Gousmett and Ken Lord, The Law and Practice of Charities in New

of the current objects of the Trust. As noted above, in any event, the original application to approve a scheme varying the Trust under s 32 of the CTA was abandoned. It is no longer before the Court.

[62] As to a possible sale of the Trust property, initially Ms Hopkins for the Public

(a) First, for the Public Trustee to properly carry out its role, it would need to investigate viable options for the Property to consider what was the best option available to the Trust, even if a sale was within the general charitable purposes of the Trust.

(b) Secondly, and alternatively, Ms Hopkins noted that while the Public Trustee at this point considered it worthwhile to fully investigate options other than sale, it was possible that the result could be that the current proposed sale which existed for the Property was indeed the best option for the Trust. Delaying that sale for any appreciable length of the time to undertake a process of exploring other possible viable options in a lengthy way could pose a real risk of losing the current purchasers and this she acknowledged may not be in the best long term interests of the Trust.

[63] Notwithstanding these matters, the Public Trustee’s overall position on the s 66 application was essentially one to simply await the decision of the Court on the application, and neither to promote or oppose the notion that the Trust should be permitted to sell the Property.

[64] Mr Powell for the Attorney-General noted in his submissions before me that the Attorney-General’s overriding duty in this proceeding, bearing in mind his role as protector of charities, was simply to provide what help he could by way of assistance to the Court and in the general public interest.

[65] Formally, Mr Powell confirmed that the Attorney-General’s position here was one simply to abide the Court’s decision.

[66] But, notwithstanding this, a number of comments made in the submissions advanced before me by Mr Powell are usefully repeated here, which I now do:

27. The essence of charitable objects of the Burnett Mount Cook Station Charitable Trust is the preservation of the heritage values of the particular land [and its surrounds] that the settlor gifted to the Trust.

28. Disposition of the property is not thereby precluded but it would have to be consistent with the objects of the Trust. An example is Re Nelson Historic Theatre Trust Board [2014] NZHC 987.

31. Preservation of the charitable purpose does not of itself require the Trustees to retain even a revisionary interest in the properties themselves, if any person who took over that property entered encumbrances on the land that would enable the charitable purpose to be fulfilled. Sale to an altruistic owner could itself satisfy the first object of securing the future protection of the land but eh encumbrances would have to make the land subject to the fulfilment of the objects of the Trust; the preservation of the heritage values of the land and buildings, and in particular the protection and preservation of flora and fauna.

32. The only owner who would be likely to be in a position to do that would be an owner, like the Nelson City Council in Re Nelson Theatre Trust that would own and use the land for public rather than private purposes.

33. In the present case, gifting the land to the Crown or another entity like the Queen Elizabeth II Trust would be the only form of alienation likely to be consistent with the objects of the Trust. There is no such proposal currently before the trustee.

Is a sale to private interests consistent with the charitable objects of the

34. Assuming that a private buyer was prepared to take the land subject to the terms of the Trusts, the only objection in principle is that the fulfilment of the charitable objects could confer a private benefit on the owners of the property. For example the preservation of the heritage values may involve expenditure on the land and buildings that improves or retains their values. The benefit of that improvement and value is a private benefit that goes to the owner of the reversion. That would sit alongside the public benefit in the preservation of the heritage values of the land and buildings. It

would need to be no more than ancillary or incidental to the charitable purpose.

35. That question may well not be reached. The encumbrances agreed to by the proposed purchaser [the Goulds and Guide Hill Station Limited] and set out in the joint memorandum of counsel do not match the charitable objects because in all material respects (except as to the first charitable object) the encumbrances are subject to the proviso that giving effect to them is consistent with reasonable farming practice. The charitable objects set out in the Trust Deed have no such conditions nor could they be read into the Trust Deed without modification which only a scheme would provide.

[67] The fundamental position taken by the original applicants seeks to secure the sale of the property to the Gould and Guide Hill Station Limited interests under the Gould Sale Agreement. Indeed their position has been throughout and remains that this sale is essential to the continued survival of the Trust.

[68] The original applicants contend that the evidence before the Court indicates that the Property cannot be farmed to produce a surplus unless significant capital which the Trust lacks is invested. Indeed, they note that the Trust is facing significant financial pressures such that it is suggested it is on the brink of insolvency. These financial difficulties, it is said, are such that when the trustees approached a lender, Rabobank, for some financing support, this was not forthcoming. It is said that Rabobank required some prediction showing cash surpluses being generated for the Property in future years which was something the original applicants could not provide.

[69] In addition, the Property it is said is infested with wilding pines which need to be removed at significant cost, a cost which the original applicants say the Trust is simply unable to afford. Furthermore, recently a demand has been made on the Trust to repay a “loan” it has from Donald’s estate, consequent upon a civil action that Mr Cunningham and his company commenced against the estate over alleged breaches of the former lease arrangement for the Property.

[70] As a result of all of this, the original applicants maintained before me that there is a high probability no alternative option would be beneficial to the Trust than the sale they have been able to achieve under the Gould Sale Agreement and indeed the timing of this sale is imperative. The sale, it is claimed, provides a much needed injection of $4.7 million to the Trust and frees it from the burden of running the Property and funding the extremely expensive wilding pine removal undertaking, which itself would exhaust funds otherwise available for charitable purposes.

[71] And, according to the original applicants, further delay in carrying out additional investigations for the Property would be likely to result in the Guide Hill Station Limited purchasers cancelling the Gould Sale Agreement, which they say would constitute an unjustified gamble here. On this aspect, Mr Page confirmed before me on 4 October 2016 that Guide Hill Station Limited had just at that point lodged caveats against the title to the Property to protect what it contends is its interest as purchaser under the Gould Sale Agreement. The potential sale too, as I will note below, now includes two significant matters. The first is a right of purchase agreement in favour of the Trust first, and the Crown second, offered by the Gould and Guide Hill Station interests in the event they might wish to sell the Property. The second is an encumbrance which they are prepared to have registered on the title to the Property to secure for the future ongoing compliance by the owners from time to time of the Property with the charitable objects of the Trust. More on these aspects later.

[72] In the meantime, Mr Ormsby for the original applicants also contended that it was clear from the charitable objects of the Trust that, from the language used, those charitable objects did not demand continual ownership of the Property. Obligations here were to “secure” the future protection and preservation of the Property and its surrounds. It was noted that even though the Property itself is presently owned by the Trust, the “surrounds”, meaning adjacent lands, were not, and therefore there was no possibility the “surrounds” could be owned by the Trust.

[73] Mr Ormsby maintained too that the future protection of the Property and indeed its surrounds could be secured even in the event of a sale of the Property, and ultimately, this is what his clients were seeking.

[74] Finally, Mr Ormsby urged on me the notion that the Court must deal here with the reality of the different situation in which the Trust found itself now. The question, he said, was whether or not a sale of the Property was permissible and in the best interests of the Trust.

[75] Guide Hill Station Limited is the nominated purchaser from the Goulds under the Gould Sale Agreement. Its position is one supporting the stance taken by the original applicants. The interest of the Goulds and their company in this proceeding is therefore as a potential purchaser of the Property who their counsel, Mr Page, said is ready, willing and able to complete settlement of the purchase, not only on the original terms outlined in the Gould Sale Agreement, but also on the additional conditions alluded to at [71] above they are now prepared to agree to.

[76] In Mr Page’s final submissions before me, several comments which are perhaps of some significance, are worth repeating, which I now do.

4. Mount Cook [the Property] is of real significance to the Gould family because:

(b) The Goulds see themselves as fortuitously placed to address the wilding pine infestation on Mount Cook as a consequence of capital being realised from the sale of Guide Hill, that puts them in a position to fund full participation in the McKenzie Wilding Conifer Management Strategy.

8. Nevertheless, the Goulds recognise value in a long term relationship with the trustees [of the Trust] in which the objects of the Charitable Trust can be achieved. The Goulds see themselves as the stewards of the land. As stewards they are in a much better position to advance the objects of the Trust on Mount Cook Station than the Trust is capable of doing for itself.

26. ...The Goulds are serious in their commitment to the protection of the natural and historical values of the station and for the advancement of the educational and scientific objectives of the Trust. These matters are now the subject of an encumbrance, the terms of which have been agreed. The Gould family has further offered [without being asked] to execute a right of first refusal in favour of the Charitable Trust, and secondly in favour of the Crown, in the event that Mount Cook should ever be sold out of the family.

28. These offers are made in the hopeful expectation that they will demonstrate to the Court that not only is the Gould Family genuine in their intentions for the Property, but they are, in fact, better positioned to deliver the objects of the...Trust...than is the Trust itself.

[77] Further, in amplification of what terms in an encumbrance the Gould interests would agree to for the future and ongoing protection of the Property, Mr Page confirmed that this could be drafted in such a way so as to confirm that Guide Hill Station Limited as purchaser, and any subsequent purchasers, would take a transfer of the Property subject to complying at all times with the specific objects of the Trust.

[78] Finally, in addressing timing issues, Mr Page said decisions for the Property and whether or not the proposed sale to Guide Hill Station Limited was to proceed needed to be made without further delay. The original settlement date under the Gould Sale Agreement was a date in April 2016, now long overdue.

[79] The Sundbergs were friends and acquaintances of Donald and his sister, Ms Baker, prior to their deaths. Their opposition to the present s 66 application is advanced, as I understand it, on the basis that they contend the Trust should not sell the Property. They maintain that the essence of the Trust is to preserve the Property, its buildings and natural environment. Therefore any sale would be inconsistent with the charitable objects of the Trust.

[80] The Sundbergs take issue with suggestions that the Trust is approaching insolvency and that the Property could not be farmed in the future on some economic basis. They contend also that the wilding pines problem on the Property could be

controlled by a range of various means, including by controlled fires. An affidavit from Nicholas Legard, retired scientist of NZ Forest Research Institute Limited, filed by the Sundbergs, it is said confirms this as a real possibility.

[81] Evidence has been given by the Sundbergs regarding what they say was Donald’s intentions as settlor of the Trust. This is to the effect that the retention of the Property, and ensuring that it is kept for the public of New Zealand, were central to Donald’s intentions and the objects of the Trust.

[82] Suggestions from the original applicants that it was now impracticable or inexpedient to retain the Property and to carry out the purposes of the Trust were roundly challenged by the Sundbergs.

[83] Finally, the Sundbergs particularly opposed the sale of the Property under the Gould Sale Agreement, but also any suggestion that the Property could in general terms be the subject of a sale.

Position of Neville Cunningham and Mount Cook Trophy Hunting Limited in opposition

[84] Mr Cunningham and his company, Mount Cook Trophy Hunting Limited, were unsuccessful tenderers in the sale process for the Property which culminated in the Gould Sale Agreement. Also, up to about 2010 they had been for some time lessees of at least part of the Property from Donald to enable them to undertake their trophy hunting business.

[85] Mr Cunningham and his company also oppose the s 66 application essentially, it seems, because they contend that alternatives for the Property other than an outright sale have not been fully explored and may well be viable here. Mr Cunningham suggested that a long term lease of all or a major part of the Property may better serve the purpose of securing the future protection of the Property in line with the charitable objects of the Trust. He contended that he created and operated with his company what he described as a “perfectly viable business on the Property for eight years while Donald was alive”.

[86] Finally, Mr Cunningham contends that a sale of the Property and, in particular, a sale under the Gould Sale Agreement cannot achieve the original charitable objects of the Trust, nor can it meet the wishes of Donald (and his sister Ms Baker) to retain and keep the Burnett name with the Property and Mount Cook Station closely connected forever.

Position of Royal Forest and Bird Protection Society of New Zealand Incorporated in opposition

[87] The opposition of the Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest and Bird) to the present s 66 application was advanced on the basis that a sale of the Property by the Trust does not meet the Trust’s charitable objects. Mr Anderson, counsel for Forest and Bird suggested that so far as the original applicants were concerned, there was a financial element to their motivation in bringing this application. He maintained that the real issue here was whether the objects of the Trust could be met by a possible sale, the answer was no.

[88] Many of the submissions advanced before me by Mr Anderson were directed to the proposed sale under the Gould Sale Agreement and on this he maintained that the Trust needed to start the entire process again.

[89] Mr Anderson noted too that management of the wilding pines issue was a major factor in ensuring that the flora and fauna of the Property would survive and flourish. A real commitment to the management of this problem was required.

[90] He suggested also that the settlor’s intention in this case was that the Property would not be sold and that it would be retained in the Burnett name in perpetuity. He referred to Donald’s Letter of Wishes which he maintained clearly set out the preservation intentions which were uppermost. He did not accept suggestions from the original applicants that the Trust was insolvent and therefore a sale was imperative

[91] Finally, at the conclusion of Mr Anderson’s submissions before me, he did

accept that in a general sense it would be possible for the Trust to sell the Property

with appropriate conditions to ensure the Trust’s objects were complied with but he

[92] Ms Griffith’s opposition to the present application was included in the formal Notice of Admission she filed in this Court on 7 September 2016. The grounds of her opposition were set out as follows:

The retention of the properties owned by the Trust and ensuring that these properties are retained for the benefit of the New Zealand public are central to the objects of the Trust and the settlor’s intentions.

It has not been established that it is impossible or impracticable or inexpedient to carry out the purpose of the Trust.

The proposed scheme [and thus the present directions sought] would result in the Trust failing to meet the requirements for registration as a charitable entity with charitable services because the removal of public access to Mount Cook Station would render any public benefit from the Trust negligible and would provide no public benefit for future generations in relation to access to the property to view trees, plants, flora and fauna and the land and buildings as preserved...

[93] Ms Vance advises that she has a 60 year connection with Donald and the Burnett family generally. It seems she was a close friend of Donald’s sister, Ms Baker, and she has stated that her family had a connection with the Burnett family and the Property over three generations.

[94] Ms Vance’s opposition to the present application is advanced on the basis that any proposal for the sale of the Property does not carry out what she says are the wishes of Donald as settlor of the Trust expressed to her. These she said were specifically to promote the permanent preservation of Mount Cook Station on the Property in order to maintain its special features for all New Zealanders. She thought too that, despite contrary comments from others, the Property could be made economic. And, in particular, a major complaint she raised is that the present s 66 application might prevent any access arrangement to the Property being reached, especially insofar as it related to access to the grave of Donald’s late father who was buried there.

[95] Mr Lawry, who is a retired police officer, describes himself as a keen tramper, hunter and mountaineer who has visited Mount Cook Station and the Property. Mr Lawry’s original submissions clearly opposed the Gould Sale Agreement for the Property proceeding. His view was that this sale was simply tainted by poor decision-making on the part of the original trustees. Further, he confirmed that he supported fully the opposition submissions which had been carefully advanced by the Sundbergs with whom it seems he also had some connection.

[96] Since the appointment of the Public Trustee as Trustee for the Trust, however, on 1 October 2016 Mr Lawry filed in this Court a memorandum setting out his final submissions, although he was unable to appear before me at the resumed hearing on

4 October 2016. In these further submissions he advanced a number of comments including the following:

(a) ...While there appears to be many agendas at play in these proceedings, it is the wishes as expressed by Donald Burnett in the objectives of the Mount Cook Station Charitable Trust that in my view are deserving of the greatest weight.

(b) I advise that I am now highly confident, that a genuine independent consideration, of alternatives likely to achieve the original Trust objectives, will objectively take place. Further, that I will accept the final decision of the Public Trustee.

(d) I note that the Public Trustee quite correctly points out that this sale (under the Gould Sale Agreement) may, after consideration of all the other viable alternatives, still represent the best option for the Trust. Should that be the eventual outcome again I would be opposed it. I would be saddened by it, but comforted that every effort had been objectively made to achieve Mr Burnett’s wishes.

[97] Alternatives to a sale of the property, according to Mr Lawry, need to be explored. He is sceptical at suggestions that the Trust is approaching insolvency and finally submitted that a number of issues for the property were worthy of further investigation and he hopes these would be explored by the Public Trustee.

[98] Lastly, Mr Lawry suggested that some investigation of the past accounting records and decision-making for the Trust should be undertaken. This is, however, not a matter before this Court or for consideration here.

[99] Ms Finlayson’s position, like that advanced by a number of the other parties in opposition, was one particularly opposing the sale of the property under the Gould Sale Agreement. Indeed, she suggested that any sale would not comply with the charitable objects of the Trust.

Professor Tane appeared, and advanced a number of submissions in opposition to the present application. He claimed to have a knowledge of the property dating back for at least the last 40 years, and his position essentially was to oppose any sale. He advanced an argument that, in his view, farming of the Property was entirely viable as a self regenerative forestry estate, notwithstanding submissions from the original applicants to the contrary. In this regard Professor Tane claimed that a new and intense forestry operation on the Property (including development of the wilding pines as a resource) could be investigated and carried out successfully, which would obviate the need for any possible sale. He presented material and articles which he had authored some time ago. His position seemed to be in marked contrast, regarding the wilding pine issue, to that advanced by other parties. In his view, as I understand it, the wilding pines presented a viable forestry harvesting opportunity, rather than simply constituting a pest and menace for the Property which required an expensive resolution option.

[101] To consider the present s 66 application, I must first begin with ascertaining Donald’s charitable purpose as settlor and the Trust’s charitable objects. Before doing so, however, I observe that the Trust does confer on the Trustees the power to dispose of property, this being contained in cl 7.1 of the Trust Deed. Specifically,

this includes the power to borrow against, purchase, dispose of, lease or otherwise deal with property, but cl 7.1 giving those powers, provides also that these shall be “exercised prudently to promote the Objects” of the Trust. This argument that cl 7.1 provides the power to sell Trust property of course is a circular one - it brings one back on every occasion to the question: is the proposed sale consistent with the charitable objects of the Trust?

[102] In interpreting a Trust Deed in New Zealand, to ascertain the objects or purposes of that Trust, the Court is required essentially to take the same approach as that applying to the interpretation of contracts generally – Harrison v Harrison⁸and New Zealand Maori Council v Foulkes.⁹

(a) The starting point is the plain words of the instrument or Trust Deed in the context of the document as a whole – Vector Gas Limited v Bay of Plenty Energy Limited¹⁰and Investors’ Compensation Scheme

(b) The plain words are then to be cross-checked against the relevant context in which the instrument or Trust Deed was created and the facts and circumstances known to be operating on the minds of the parties – Vector Gas Limited v Bay of Plenty Energy Ltd¹²and Pyne Gould Guinness Limited v Montgomery Watson (NZ) Ltd.¹³

(c) The background or contextual material is relevant in that it assists the interpretive task or can logically bear upon it – Burrows Finn & Todd

¹⁰_{Vector Gas Limited v Bay of Plenty Energy Ltd
[2010] NZSC 5, [2010] 2 NZLR 444.}

¹³_{Pyne Gould Guinness Limited v Montgomery Watson (NZ)
Ltd [2001] NZAR 789 (CA) at [29].}

¹⁴Burrows Finn & Todd – Law of Contract in New Zealand (5^thed, Lexis Nexis, Wellington, 2016)

(d) Where a document is drafted to affect a wider number of people than simply the parties, then the Courts will be more reluctant to take cognisance of the background matrix, and will rely more on the words of the instrument themselves – Re Sigma Finance Corporation Ltd¹⁶quoted by Arnold J in Firm PL1 Limited v Zurich Australian Insurance Limited Trading as Zurich New Zealand.¹⁷

(e) Caution is required where an interpretation would require a Court to substantially re-write an instrument as a result of the background matrix – the Court will not do so slightly – Starrenburg v Mortre Holdings Ltd.¹⁸

[104] With these principles in mind I turn first to consider the plain words of the Trust Deed at issue here. For present purposes, there are several clauses of the Trust Deed which are relevant to this interpretive task. These include:

(a) Clause 2.1 which provides that the Trustees are to stand possessed of the Trust Fund upon the trusts to achieve the charitable objects set out in the Trust Deed.

(b) Clause 1.1 defines “Trust Fund” as the initial sum of $10 and such further money or property as may from time to time be added to it. This, of course, includes the Property together with, as I understand it, various chattels relating to the Property which have been transferred to the Trust.

¹⁵_{Yandina Investments Limited v ANZ National Bank Limited
[2013] NZCA 469 at [54].}

(d) Clause 7.1(f) expressly provides for a power of sale, disposal of or dealing with Trust property.

(e) Clause 7.1(n) which gives the Trustees the power to contribute to any Charities Commission-approved charitable trust having substantially similar objects.

(f) Clause 7.1(r) which provides the Trustees with the power to join with “any other person, group, body or organisation under such arrangement as the Trustees think fit to provide for the Objects” of the Trust.

(g) Clause 10.5 which contemplates that the Trust will have income, and that this will be applied towards the Objects of the Trust.

(h) Clause 21 which provides a power for the Trust to be amended. This, however, applies, provided only that any such alteration does not remove the Trust status as a charitable trust or amend the objects such that any object is included which is not charitable or is to be achieved outside of New Zealand or, alternatively, which amends the intent or purpose of clauses in the Trust Deed including the objects clause.

(i) Clause 23 permits the Trust to be wound up on a unanimous resolution of all trustees with all remaining net funds and assets being vested in another charitable trust.

[105] The question here is whether the framework and terms of the Trust permit the sale of the Property within the terms of the Trust Deed as it presently stands. The starting point, of course, must involve a consideration of the express charitable objects of the Trust set out in cl 5.1 of the Trust Deed.

[106] At the outset I need to say that, in my view, the broad power to dispose of Trust assets in this case can be exercised provided it is exercised by the Trustee prudently and so as to promote the objects of the Trust. Looking at this in a general

sense, it is clear that in some cases, ownership of land may be central to the objects of a charitable trust but that ownership is not tied to any particular land. By way of example, in Oldham Borough Council v Attorney-General the donor had conveyed land to the Council to hold it upon trust “to preserve and manage” it “at all times hereafter as playing fields to be known as “the Clayton Playing Fields” for the

[107] The applicant Council had replaced the original trustee as Trustee of the Trust. It saw the original playing fields as being ripe for development. They were now of such a value that it was decided a sale of the land to a developer would enable the purchase of new playing fields elsewhere with much better facilities. The Council sought authority from the Court to sell the land.

[108] The Court of Appeal (England and Wales) held that the original gift was a gift of the land for the charitable purpose of providing playing fields for public recreation for the inhabitants of the Council’s area, but retention of the donated land was not part of the “original purposes”. The sale of land and the purchase of similar land to be held on the same charitable trusts was consistent with the charitable purpose. In reaching this decision in the Court of Appeal Dillon LJ noted as follows:²⁰

There are, of course, some cases where the qualities of the property which is the subject matter of the gift are themselves the factors which make the purposes of the gift charitable, e.g. where there is a trust to retain for the public benefit a particular house once owned by a particular historical figure or a particular building for its architectural merit or a particular area of land of outstanding natural beauty. In such cases, sale of the house, building or land would necessitate an alteration of the original charitable purposes and, therefore, a cy-pres scheme because after a sale the proceeds or any property acquired with the proceeds could not possibly be applied for the original charitable purpose.

[109] In the case before me, at one level it could be said that the essence of the charitable objects of the Trust is the preservation of the heritage values of the particular Property itself (and its surrounds), the property being the one which Donald as settlor made available to the Trust. But, as Mr Powell, counsel for the

_{Attorney-General confirmed in his final submissions before me at [28],
disposition}

of the Property was not thereby precluded by the Trust Deed, provided any disposition would need to be consistent with the objects of the Trust. By way of example Mr Powell referred to the decision of this Court in Re Nelson Historic Theatre Trust Board.²¹In that case the Court was considering an application under s

21 of the CTA for the Court’s consent to transfer the Nelson Theatre to the Nelson City Council. The trust in that case no longer had the income to maintain the theatre and considered that transferring the theatre to the Council was the best alternative in all the circumstances. It was said there that the s 21 CTA application was necessary because it was the “essence of the Trust” that the theatre would be used for the purposes of the Trust and thus approval of the sale was required. The objects of the Trust in that case were “to raise and administer funds for the restoration and refurbishment of the Theatre...” and “following completion of the said restoration and refurbishment to undertake the preservation and maintenance of the Theatre...

[110] Because in that case the Nelson Theatre was central to the objects of the Trust, this Court agreed that variation to the purposes was not a suitable option. Sale to a private owner was rejected because a private owner might not have maintained the property as a working theatre. The Court said in that case at [19] the Council was the most appropriate party to acquire the Theatre because “the Council’s funding, size, organisational skills and accountability to the public, are seen as placing the Council in the position to seek to ensure the continued protection of the Theatre as a working theatre”.

[111] At the time, the trustees in this Nelson Theatre case were exploring how they might continue the Trust. The Court accepted, however, that even if the proposed sale might end the Trust, being a sale to the Council it was the only viable option.

[112] Turning back to the specific charitable objects of the Trust in the case before me, to repeat, these are, broadly speaking, to secure the future protection of and to preserve the natural and historical heritage value of the Property and its surrounds. Specifically cl 5 of the Trust Deed sets this out. These objects differed somewhat from the particular provisions in the Trust Deed in the Nelson Theatre case which

_{required raising of funds to restore the Theatre and then to undertake
its preservation}

and maintenance. Also, it seems as a result of an oversight, there was no power of sale included in the Trust Deed in that case.

[113] At a general level, in considering the plain words outlined in cl 5 of the Trust Deed, it is clear from these that there is an element of environmental protection in the objects of the Trust. A predominant purpose of Donald in establishing the Trust, however, was also to preserve and protect for public appreciation and benefit the heritage of the Property, both as to its natural history and as to its original settler status. In addition, protection and preservation of the trees, plants, flora and fauna, (but specifically excluding the wilding pines and other noxious trees or plants) on the Property and its surrounds was a stated object.

[114] And, as to the specific words used in cl 5.1 of the Trust Deed, the active requirements spelled out in the objects of the Trust are to “secure” the future protection of the Property and its surrounds, to “provide awareness” of heritage and natural environment matters, to “protect and preserve” flora and fauna and to “promote” permanent preservation of the Property’s beauty and historical environmental interest. Access to the Property is referred to specifically only at cl 5.1(f). This access requirement is “to enable admittance” simply “for scientific research and education” purposes.

[115] In looking to the language used in this objects clause, the ordinary meaning of the word “secure” in the Chambers Dictionary means “to keep safe and free from danger...to make safe or certain”.²²In terms of the Concise Oxford English Dictionary definition the most appropriate meaning for the word “secure” here is “to keep certain, to remain safe and unthreatened”.²³

[116] The words “protect” and “protection” in the Chambers Dictionary definition mean to “shield from danger, injury, change, capture or loss” and “to defend, to strengthen”.²⁴And, similarly, the word “preserve” is defined in the Chambers

_{Dictionary as meaning “to keep safe from harm or loss...to keep in
existence”.}²⁵

[117] The word “promote” is defined in the Chambers Dictionary²⁶to include “to further, to raise to a higher grade, to further, to further the progress of”.

[118] Nowhere in this clause 5.1 is it specified that the Trust must “own”, “hold”, “retain”, “keep”, “continue the ownership of”, “possess to the exclusion of all others” or even “to personally farm” the Property. “Ownership” language is simply absent. Whilst there can be no doubt that a principal way for the Trust to ensure future protection and future preservation of the Property is for it to continue its outright ownership and thus its control of the Property, I am satisfied that this is not necessarily a mandatory requirement set out in the Trust Deed. In my view, it is possible to secure the future protection of the Property and its surrounds, even if the Property itself is to be sold or otherwise disposed of, provided particular and strict conditions of sale are imposed to protect the future position. This is perhaps even more so if a situation were to develop where, for financial or other reasons, retention of the Property is reaching an impossible stage, and a real risk of losing the Property on a forced sale basis is likely to arise. Any forced sale through insolvency of the Trust or the like would be unlikely to be effected on conditions that would preserve the Trust’s objects for the Property for the future.

[119] Next in this consideration, I note that from the formation and inception of the Trust in 2009 until late 2015, it existed without owning the Property. It was not suggested at this time that the Trust itself was not charitable in the absence of owning the Property. Indeed, it had been in existence and registered with the Charities Commission for over five years at that point. Further, it is of some significance, in my view, that the Trust Deed itself, in every charitable object outlined in cl 5.1(a) to (g) inclusive, referred extensively to achieving those objects not only in relation to the Property simpliciter but also in relation to its “surrounds” In this context, I am satisfied the word “surrounds” means as outlined in the

Chambers Dictionary²⁷“to go or extend all around...environ...neighbouring”, and in

the Concise Oxford English Dictionary²⁸“be all round, encircle”, “surroundings”

_{and “the conditions or area around a person or
thing”. Whilst from 2010 the}

Property itself came within the ownership of the Trust, its “surrounds”, that is its neighbouring areas, its environs and areas around the Property, did not. It is presumed those “surrounds” were owned and/or occupied perhaps by the Department of Conservation (DOC), the Crown otherwise, or private owners/farmers. A reasonable argument exists in my view that this must plainly suggest that, as ownership of the “surrounds” vested elsewhere, ownership of the Property itself at all times was not essential to achieving the objects of the Trust.

[120] I turn finally to consider the plain meaning of certain other words used in cl 5.1 of the Trust Deed. These are directed to “providing awareness” of original, heritage and environment values, “facilitating ecological understanding of ecosystems” as well as “enhancing and protecting” the High Country environment, and “enabling admittance (to the Property) for scientific research and education”.

[121] Clearly the words “providing awareness” in cl 5.1(b) connote a more passive object than “securing” referred to above. As I see the position, it is something that can be achieved in the absence of ownership of the Property, for example through educational campaigns, authorising articles and the like.

[122] So far as “facilitating ecological understanding of ecosystems” in cl 5.1(e) and “enhancing and protecting” the High Country environment generally are concerned, these are activities easily able to occur too in the absence of ownership of the Property, provided of course adequate funds are available for this purpose.

[123] And lastly, “enabling admittance” to the Property in cl 5.1(f) which is specifically limited “for scientific research and education” is not the same as general public admittance to the Property. General public access to the Property is not something the Trust specifically provides for. It is something too which, in any event, as I will note below, might be dealt with by way of a proposed encumbrance. Or, in the case of, for example, a new access right to the private Burnett burial ground on the Property, it is a matter that could be secured for all time by way of a condition in a sale agreement for the buyer to enter into a suitable easement registered on the title to the Property.

[124] Turning now to cross-check the plain words used in cl 5.1 against the relative context in which the Trust was created, the evidence before me is usefully supplemented by Donald’s Letter of Wishes to his Trustees referred to at para [43] above, a Letter of Wishes issued shortly after the Trust came into existence. From this document there can be no doubt that Donald’s initial intention was that the Trustees of the Trust would retain the Property he was transferring to it. This is clear from comments in his Letter of Wishes that:

I record these background facts and current policies in the strong hope that the Trustees of this Charitable Trust will continue to husband the Property with these principles and facts in mind.

I have never used artificial fertiliser and would wish that my Trustees would continue to observe this policy.

On 16 May 2009 Mount Cook Station Run celebrates 145 years under the control of the Burnett family. Some history of that occupancy and family attitudes resulting from that experience need to be recorded and used in an understanding of my non-binding wishes for the operation of the Burnett Mount Cook Station Trust which I set out herein.

...we are now faced, as are many other High Country properties, with the tremendous challenge, indeed the crisis, of dealing with wilding trees...We continue but recognise the cost is enormous...Some means of control must be found for the Property to survive.

[125] It is clear that continued ownership of the Property is one way to ensure the “future protection and preservation” of the Property and its flora and fauna, again providing the Trust remains both financially and practically viable. This ownership, limited of course to the Property itself, does not mean that “the surrounds” mentioned throughout cl 5.1 of the Trust Deed can similarly be protected and preserved. Nor, as I see it, does it preclude alternative ways other than outright ownership of the Property being available to ensure the objects of the Trust are met. Assuming too, that the specific language used in the Trust Deed was deliberate, there

is a reasonable argument, as I see it, that the objects of the Trust are not necessarily tied to continued ownership of the Property.

[126] The tenor of the evidence before me and, in particular, the statements outlined in Donald’s Letter of Wishes before the Court, are such that there can be no denial that Donald’s preference was for the Property to be retained by the Trust, farmed in the Burnett name in perpetuity and not sold. Notwithstanding this, even Donald himself in his Letter of Wishes noted in 2009 the reality which the Property faced when he talked of:

[127] The Trustees of the Trust must deal with the real situation which arises from time to time and make appropriate decisions for the Trust, decisions which at times may not reflect a settlor’s unattainable wishes.

[128] Before me the original applicants suggested that a sale of the Property is inevitable because of:

(a) The financial difficulties that the Trust has faced over the last few years, difficulties which are alleged to be growing without any prospect of alleviation.

(b) The immense problem for the Property of the wilding pines infestation and the prohibitive cost to the Trust of remedying this.

[129] As to the matter raised at para [128](b) above, all parties (including the deceased Donald), but with the possible exception of Professor Tane, are agreed that the wilding pines on the Property are a growing problem and must be removed. It

does seem clear that it is simply not possible for native flora to flourish at the Property whilst the wilding pine infestation continues and grows unabated. There appears to be too a significant cost in dealing with the wilding pines infestation. This cost, according to some estimates, could be in the millions of dollars.

[130] At this point I make no detailed comment with respect to the other allegations noted at [128](a) and (c) above advanced by the original applicants. All the matters outlined at [128] above are matters no doubt which the Public Trustee would consider in reaching any decision to be made with regard to the future of the Property and the Trust. All I would say at this stage is that, as to the allegation that the Trust faces serious financial difficulty almost to the point of insolvency, some questions need to be raised given that, as I understand it, the Property is mortgage free and the Trust assets effectively unencumbered. Although the Trust may have certain income and cash flow issues, generally that does not equate to insolvency.

[131] Turning now to consider alternative opportunities for the Trust, I am satisfied that in the present case gifting or sale of the Property to the Department of Conservation, the Crown or some other public entity like the Queen Elizabeth II Trust is likely to be consistent with the charitable objects of the Trust. Similarly, a sale or disposition of the land to a private interest, who took over the Property on a strict condition and entered encumbrances on the land that would enable the charitable purposes of the Trust to be fulfilled, is also likely to be consistent with the objects of the Trust. Before me Mr Powell for the Attorney-General accepted that this would be the case. He did note also that, assuming a private buyer was prepared to take a transfer of the Property subject to the objects and terms of the Trust, the only objection in principle might be that the fulfilment of those charitable objects could confer a private benefit on the new owners of the Property. By way of example, he noted that the preservation of the heritage values of the Property might involve expenditure on the land and buildings that could improve their value. The benefit of any improvement in value would be a private benefit that would go to the owner as the proprietor of the reversion. This would sit alongside the public benefit in preserving the heritage values of the land and buildings and therefore it would need to be no more than ancillary or incidental to the general charitable purposes.

[132] Notwithstanding this, and the obvious point that a charitable trust exists for public benefit, the fact of the matter is that, even given the current operation of the Trust in its early days since its 2010 acquisition of the Property, continued farming operations and maintenance and preservation of the buildings and improvements on the Property were required. The private benefit to which Mr Powell refers in the event of a sale of the Property to a private buyer, as I see it, is likely to be essentially directed at this. In addition, if the sale is seen as a transaction facilitating the survival of the Trust because of the position the Property has reached, and thus enabling the ongoing fulfilment of the charitable objects, the sale is simply a means to an end and, as I see it, the private benefit argument falls away.

[133] That said, it is useful at this point, simply by way of example, to turn to the Gould Sale Agreement which is before the Court. Linked to this is the recent confirmation from Guide Hill Station Limited as potential purchaser that if its purchase proceeded it would enter into a binding encumbrance to run with the land for itself and future owners of the Property to comply in all respects with the charitable objects of the Trust.

[134] As I have noted earlier, the Gould Sale Agreement itself is irrelevant to the present s 66 application before me. Nevertheless, it is useful to an extent to note that it provides a real illustration that a possible sale within the charitable objects of the Trust could secure these obligations for the future by registered encumbrance on the title to the Property. Indeed, that is precisely what Mr Page before me confirmed that Guide Hill Station Limited and the Gould interests would agree to if the Gould Sale Agreement was to proceed.

[135] Enforcement of the obligations in such an encumbrance could, in its terms, rest with the Trustee/s of the Trust or even perhaps the Crown if required. That said, I am satisfied here that a possible sale of the Property to an outside party, subject to that purchaser entering into a binding and registerable encumbrance ensuring strict compliance with the charitable objects of the Trust, would enable the Trust’s charitable purposes here to be fulfilled. The fact too that, again by way of example, (as Guide Hill Station Limited and the Gould interests here volunteered) a purchaser acquiring the Property would, in the event of its later sale, be prepared to enter into

rights of first refusal in favour of the Trust (and perhaps also the Crown) would also provide some additional degree of comfort.

[136] I conclude therefore that a possible sale or distribution of the Property upon these terms would also be a way of complying with the charitable objects of the Trust itself.

[137] Indeed, if the Trust was seen to be encountering serious financial difficulties and the Property was suffering with the wilding pine infestation or otherwise to such an extent that it might be considered in the broad sense that the Property was a wasting asset, then the Trustee might well need to consider its obligation to properly address the issue of selling a wasting asset. The clear duty of trustees is to avoid any wasting of Trust property or assets they may hold.²⁹

[138] For all the reasons I have outlined above I have reached the following conclusions:

(a) The charitable objects of the Trust outlined in cl 5.1 of the Trust Deed, given the ordinary meaning of the words used, and taking into account the prevailing context and the other supporting evidence here, do not demand continual ownership of the Property by the Trust.

(b) If the trustees of the Trust determine that a sale of the Property is in the best interests of the Trust, bearing in mind its charitable objects, then such a sale can be achieved whilst still adhering to those objects.

(c) This sale would be consistent with the charitable objects of the Trust if, for example, it was subject to a registered encumbrance running

²⁹On this aspect, s 14(1)(c) of the TA notes that a trustee in exercising powers in respect of any property may postpone a sale “whether or not it (the property) is of a wasting, speculative, or reversionary nature” but this is subject to the proviso that: “nothing in this paragraph shall permit a trustee to postpone the sale, calling in, or conversion of any property of a wasting or speculative nature for longer than is reasonably necessary to permit its prudent realisation.”

owners of the Property were required to adhere to and fulfil all the objects of the Trust. Clearly this is achievable as the Gould Sale Agreement confirms.

(d) The Trustees have general power to enter into a sale of the Property as an asset of the Trust in terms of cl 7.1 of the Trust Deed.

(e) The charitable objects of the Trust, as I see it, could be achieved after a sale not only in relation to the Property itself but also in relation to its “surrounds” being neighbouring areas and the general district.

(f) Following any sale of the Property the Trust may well have exchanged this asset for a relatively large cash capital injection which could be applied to the objects of the Trust. This could be done to further the heritage and environmental aspects of the Property and the High Country environment generally, simply by way of possible example, by creating a museum or the like on the Property (with appropriate easements) to celebrate the special status of the Property, or by contributing towards environmental research at and around the Property directed to the control of the wilding pine problem, or for other purposes.

(g) The s 66 application in its terms seeking direction concerning the sale of the Property therefore is one properly made. Directions sought will follow. That does not bind the Trustee of the Trust to a sale of the Property however. It merely confirms the power to do so within the charitable objects of the Trust.

[139] Accordingly, I make the following direction pursuant to s 66(1) of the TA on

respectively as Mount Cook Station and Cox’s Downs) on the basis that the Public

Trustee, as Trustee of the Trust, might consider such a sale to be in the best interests of the Trust, and provided the purchaser is prepared to take and secure the Property for the future subject to the terms of the Trust, for example, by way of a special condition in the sale that it is subject to the purchaser entering into an ongoing encumbrance to be registered against the title to the Property requiring the purchaser and subsequent owners to specifically adhere to and fulfil the charitable objects of the Trust.

[140] As to costs, if they are in issue here, and counsel and the parties are unable to resolve this question between themselves, then they may approach the Court for assistance.

(a) No later than 30 working days from today the party or parties seeking costs are to file and serve their memoranda to this effect.

(b) Within a further 15 working days of that date, all parties opposing the awards of cost are to file and serve their memoranda in opposition.

(c) Within a further 5 working days of that date, any memoranda sought to be provided strictly in reply to that opposition are to be filed and served by the party or parties seeking costs.

(d) All such memoranda are then to be referred to me and in the absence of any party indicating they wish to be heard on the issue, I will decide the question of costs based upon all the material then before the Court.

[142] Subsequent to the release of this judgment Mr Powell, counsel for the Attorney-General drew to my attention two small typographical errors occurring at para [66] of this judgment where I quoted from submissions he had advanced before me. This is regretted and I apologise for these minor errors. As a result I now amend para [66] of my judgment as follows:

(a) In the second line of the quotation at para [31] of Mr Powell’s submissions the word “revisionary” is deleted and substituted therefore is the word “reversionary”.

(b) In the sixth line of the quotation at para [31] of Mr Powell’s submissions the word “eh” is deleted and substituted therefore is the word “the”.

Crown Law Office, Wellington Malley & Co, Christchurch Gallaway Cook Allan, Dunedin

Hearing:	15-16 September & 4 October 2016
Appearances:	R J Hopkins for Substituted Applicant - Public Trustee (only on 4 October 2016) _{A Powell and A Dixon for Attorney General}

High Court of New Zealand Decisions

Burnett Mount Cook Station Charitable Trust [2016] NZHC 2669 (8 November 2016)