Sunday, November 18, 2012

What is the meaning of this?

One of the questions we are working on as a Diocese is the use of insurance payouts to ensure the best possible structure of the Diocese moving forward into the 21st century. Naturally a technical question which arises is the obligation, or otherwise, for insurance funds to be applied to the parish which paid the premiums for them. If otherwise, then the funds might be applied to, e.g. costs of building new churches in new housing areas.

Thus I am intrigued by the following part of Judge Chisholm's judgement re the cathedral and its "site-specific" situation:

"[173] When insurance money is received by a trustee it should be held upon trusts corresponding as nearly as may be with the trusts affecting the property in respect of which it was payable: s 25(3)(b) of the Trustee Act.52 Under s 25(4) any such money may be applied by the trustee in rebuilding, reinstating, replacing or repairing the property lost or damaged. Given the site-specific purpose of the Cathedral trust, it is difficult to see how any insurance proceeds arising from the insurance over the Cathedral could be used off-site."

This is from page 49 of the 52 page report, which may be downloaded from here. The report as a whole is worth reading in respect of the cathedral and its future. I am not going to comment directly here on the report viz a viz the cathedral as these matters are being considered by Standing Committee and CPT and I think we should hear from them before engaging in further discussion.

But does paragraph 173 imply that insurance proceeds for damaged parish church X are paid out to the repair or replacement of parish church X? I am neither a lawyer not the son of a lawyer and look forward to a qualified opinion on this matter being presented to the Diocese.


liturgy said...

This appears, does it not, Peter, to fit with the other recent clarification that the trustees hold parish property in trust for the parish – not the diocese. All that is quite contrary to the oral tradition that we had constantly been told, without reference to the written agreements, nor clarifications by lawyers. All this appears to dovetail into my concern about other “agreements” that we, as church, have drawn up (eg. liturgical ones) that no one appears to understand. Are alarm bells not ringing anywhere in central offices that if a debate does ensue within the Anglican Church here, with people wanting to take property and funds with them, it may not be as tidily clear as we have been told? Might TEC’s legal battles look very friendly when we cannot determine who the true Anglican Church is etc. You keep using the refrain that you are not a lawyer – is this the time to retrain?



Peter Carrell said...

Hi Bosco,
It may help to disentangle some entwined matters.

As I understand insurance payouts, the situation viz a viz the judge's reminder of the trustees obligations under law is that a payout for X should be for X [but only my understanding, mind, as a non-lawyer]. What I would not like to put even a non-lawyerly view to is what the application of the act he draws attention to is when a global payout is made for many parishes. The insurer makes the global payment (let us say) without requirement as to what is spent on what parish: is CPT then obliged to disburse those funds "pro rata"? (Could "pro rata" be determined in the rather fluid situation we find ourselves in as we assess matters from parish to parish?) [In short, I think clarity is required on the range of possibilities which might be presented.]

On parishes taking property with them should they leave etc, I am not sure that anything in what the judge says changes the fact that ultimate ownership of title to Anglican property is in the hands of diocesan trustees and thus a parish leaving the church cannot presume to take "their" property with them.

Of greater concern in this respect is the number of trusts around and about (so I hear anecdotally) which hold funds in trust for the parish they are associated with without reference to CPT. The less control CPT and other diocesan trustees have of parish assets, the harder to maintain "the line."

MichaelA said...

I am a lawyer but not in New Zealand. I will hazard a guess that this issue might depend as much upon the wording of the particular trust instrument, and the wording of the insurance policy read in context with that.

In other words, it may not have much relevance to broader issues.

But I emphasise that is just a guess. You will have to wait for the "qualified (in NZ) legal opinion"!

One thing that does seem to be emerging in all this is the place that Christchurch Cathedral occupied in the hearts of local people, whether Christian or not.

carl jacobs said...

MichaelA said...

I am a lawyer

Oh, MichaelA. We may have clashed on any number of subjects over the years, but I have always held your opinions in high respect. And now you tell me this. The disillusionment is just to great to bear.


MichaelA said...

Q. Why don't sharks bite lawyers?
A. Professional courtesy.

And now, to raise the cultural tone, some Shakespeare:

I thank you, good people: there shall be no money;
all shall eat and drink on my score; and I will
apparel them all in one livery, that they may agree like brothers and worship me their lord.

The first thing we do, let's kill all the lawyers.

Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled o'er, should undo a man? Some say the bee stings:
but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man
since. How now! who's there?"
[Henry VI, Part 2, Act IV, scene 2]

Father Ron Smith said...

Poor Curmudgeon! He's doing his best!
Sadly (for him) it's not good enough!