The Animal Welfare Institute of New Zealand [henceforth referred to as “AWINZ“] was registered as a charity by the Charities Commission on 28 September 2007 (Reg. No. CC11235). Its “Deed of Trust and Revocation” dated 5th December 2006,  states on page one:

“This deed revokes the deed executed on 1st March 2000 and substitutes this deed in its place. Despite the revocation of the deed dated 1st March 2000 it is declared that this trust established on that date [1/03/00] is continued by this deed.” [Emphasis added].

As part of Court proceedings involving AWINZ, Auckland barrister Mr Neil Edward Wells, Settlor [photo: right] of the 1st March 2000 AWINZ Deed of Trust, supplied a copy of it to the Legal Standards Solicitor of the NZ Law Society on 25 May 2011 and confirmed to that body that it constituted the “original deed“. He swore an affidavit to that effect.

However…

On 15 December 1998, over two years before the “original deed” was allegedly signed and established on 1 March 2000, Neil Wells sent Barry O’Neil, Chief Veterinary Officer, MAF Reg, MAF. a copy of a proposed (unsigned) AWINZ Deed of Trust. It is very similar to the AWINZ Deed of Trust dated 1 March 2000.

On 12  August 1999, the National President of the Royal NZ Society for the Prevention of Cruelty to Animals Inc sent a Memo to National Councillors et al. stating:

“The CEO and I had a meeting with Neil Wells and Tom Didovich who have [past tense] established a Charitable Trust which, once the legislation receives Royal Assent, will make application as an approved organisation [under the Animal Welfare Act 1999].”

On 22 August 1999, Neil Wells wrote to Barry O’Neil, Group Director, MAF Biosecurity Authority, Wellington stating:

“Enclosed is a notice of intent that the Animal Welfare Institute of New Zealand will, on the Animal Welfare Act 1999 being given its Royal Assent, formally apply to be Gazetted as an “approved organisation”.

“A charitable trust has [past tense] been formed by Deed of Trust as the “Animal Welfare Institute of New Zealand” (AWINZ). It is being registered under Part II of the Charitable Trusts Act. The founding members are:

“Nuala Grove, Sarah Giltrap, Graeme Coutts, Neil Wells.

“The purpose of the Trust is to promote the welfare of animals …”

On 28 October 1999, four months prior to the date when Mr Neil Wells claims the original signed deed was signed, he signed an application as “Trustee” of AWINZ and submitted it to the Community Well-Being Fund of the Waitakere District Council, seeking funding for AWINZ. He claimed in the application that AWINZ was “a legally constituted trust … in process of registering as charitable trust”. However, neither of these two claims in his funding application could have been true in October 1999 if the original trust deed was in fact dated 1st March 2000, as Wells claims it was in the deed dated 5 December 2006 on the Charities website.

Wells wrote in his application to the Waitakere Council dated 28 October 1999:

“AWINZ was [past tense] established as a result of consideration by Waitakere City Council of its strategic options for animal welfare over the period 1997/99.

“The establishment of the Institute was contingent on the passing of the Animal Welfare Act 1999. Parliament passed the Act on 7 October 1999 and commences [i.e. the Act takes effect] on 1 January 2000.

“The Institute will be launched as a vehicle for promoting animal welfare in Waitakere City and will work in partnership with the Animal Welfare Services of Waitakere.”

Signed Neil Wells [signature] Trustee – Animal Welfare Institute of New Zealand (AWINZ).

Note: Neil Edward Wells signed the letter to the Waitakere District Council dated 28 October 1999 and the accompanying application form, identifying himself as “Trustee” of AWINZ”.

However, no signed Deed of Trust has ever been produced by the Settlor, Neil Edward Wells, to prove that AWINZ had ever been established as a legal entity in 1999 or any time prior to 1 March 2000. At best,  in 1999 it was nothing more than a concept in his head or a trading name he used, or intended to use, for his services rendered to the Waitakere City Council.

In a carefully crafted letter written to the Secretary of “Beauty With Care” (BWC) from Neil Wells, soliciting funding and dated 14 March 2005, he states:

The Animal Welfare Institute of New Zealand has been functioning since its inception in 1998 as the channel for animal welfare inspectors at Waitakere and North Shore Cities. AWINZ is one of only two “approved organisations” recognised by the Minister of Agriculture and gazetted as such. The other one is SPCA.

He signed the letter “Warm regards Neil Wells, Trustee” [AWINZ].

On the AWINZ “Deed of Trust and Revocation” dated 5 December 2006 on the Charities website it states:

“On the 1st day of March 2000 the Settlor [Neil Edward Wells] established a trust for charitable purposes by creating the Trust provided for in this deed.”

On 25 March 2000, Neil Wells wrote to the Hon. Jim Sutton, Minister of Agriculture, as a “Trustee” on behalf of AWINZ (copied to MAF Policy and MAF Biosecurity Authority) and stated:

“This letter addresses issues raised in your letter of 24 December [1999] and in a letter from MAF Policy of 28 January 2000, and other issues since raised by MAF Policy….

“A signed copy of the Deed of Trust will follow. The original is being submitted to the Ministry of Commerce for registration as a charitable trust in accordance with clause 20(a) of the Deed.”

However, no such original signed Deed of Trust or certified copy was ever submitted to the Ministry by AWINZ and the Trust has never been incorporated. No Deed of Trust has ever supplied by AWINZ/Wells to any Minister of the Crown. No clause 20(a) exists in the so-called “original signed Deed of Trust dated 1 March 2000 or the Deed dated 5 December 2006 on the Charities website.

Neil Wells had registered two other trusts in 1999  and he knew that  an applicant sends a certified copy of the deed to the Ministry when applying for incorporation, not the original.  If at the time of writing he still had in his possession the original deed,  he could have sent the minister a certified copy, but he never did. If  he had sent the original to be registered he would  have had the trust registered and there would be an official record of it having been received. There is none.

Minister of the Crown Hon. Jim Sutton, together with Barry O’Neil, Group Director, Biosecurity Authority, had signed a letter dated 24 December 1999, raising serious concerns concerning an application by Neil Wells as “Trustee” of AWINZ, seeking “approved organisation” status, and it stated:

“Mr Wells has promoted the formation of a charitable trust called Animal Welfare Institute of New Zealand (AWINZ).”

Serious questions need to be asked about the AWINZ “Deed of Trust and Revocation” dated 5th December 2006 which is the only version present on the Charities website (www.charities.govt.nz).

QUESTIONS

A. If AWINZ was indeed “established” as a Trust on 1 March 2000, why has its claimed founding Trust Deed dated 1 March 2000 not been registered on the Charities website?

B. Furthermore, why has a copy of the AWINZ “Deed of Trust” referred to in a letter dated 21 November 1999 by the Trust Settlor, Mr Neil Edward Wells, to Hon John Luxton, Minister of Food, Fibre, Biosecurity and Border Control (see below) not been registered on the Charities website? (This Deed of Trust, if it did indeed ever exist, must have preceded the so-called “original deed” dated 1 March 2000. Minister Luxton never received a signed copy of the Deed of Trust).

C. Which is the original signed AWINZ Trust Deed – the one claimed by Wells to have been dated 1 March 2000, or the earlier one referred to in Well’s letter (who signed himself “Trustee” of AWINZ) to the Minister Luxton of 21 November 1999 ?

D. What is the true nature of “AWINZ”, claimed by the Trust’s Settlor, Neil Edward Wells and three other Trustees to have been established on 1st March 2000 and what charitable activities, if any, has it ever engaged in?

Preliminary findings

AWINZ is a “Trust” which has never been incorporated, a fact which is undeniable as anyone with access to the internet can be establish this as fact by checking on the Companies Office website. See: http://www.business.govt.nz/companies/app/ui/pages/companies/otherSearch

AWINZ is not a corporate body and it has certainly never been a charitable trust incorporated under the Charitable Trusts Act 1957, despite suggestions that it is in misleading statements in the Trust Deed dated 5 December 2006, such as:

17. Winding Up and Distribution of Surplus Assets.

On winding up of the Trust OR on its dissolution by the Registrar, all surplus assets after the payment of costs, debts and liabilities shall be given to such exclusively charitable organisation or organisations within New Zealand of a similar nature to the Trust as the Board decides or, if the Board is unable to make such a decision, shall be disposed of in accordance with the directions of the High Court pursuant to section 27 of the Charitable Trusts Act 1957.”  [Emphasis added]  

The sections highlighted reveal the misleading nature of the AWINZ “Deed of Trust and Revocation” registered on the Charities website.

AWINZ has never been an incorporated entity and therefore as such it cannot be dissolved by the Registrar under any Act. Mr Wells would probably argue that the word “OR” in the first sentence of section 17  allows for the Trust’s dissolution by the Registrar in case the Trustees ever went ahead and incorporated AWINZ at some future date. But a Trust Deed must reflect the true nature of the entity at the time its Trust Deed is duly executed and not allow Trustees to engage in obfuscation.

Only the Trustees are able to wind up an unincorporated Trust and it is a relatively simple matter to do so, provided that a majority of the Trustees are in agreement and follow the procedures set out in the Trust Deed relating to winding up the entity.  It is also a relatively simple mater to incorporate such a Trust, rather than wind it up, if the Trustees are in majority agreement on this matter.

It is an exercise in obfuscation to note in the Deed of Trust that on the winding up of the AWINZ Trust it would have to have its assets disposed of in the manner outlined in section 17 –  “pursuant to section 27 of the Charitable Trusts Act 1957“; given that the Trustees have never applied to incorporate it under this Act or any other Act.

The 5 December 2005 “Deed of Trust and Revocation” is also deliberately misleading with respect to the “interpretation” (section 18) of its “charitable purpose”, when it states:

“Charitable purpose” means and includes that term as defined by the Charitable Trusts Act 1957…”

AWINZ has never been incorporated under this Act, so it is misleading to suggest that its purposes as defined in its “Deed of Trust and Revocation” qualify as “charitable” purposes under this Act. Such a claim is mere assertion, unsupported by any factual evidence.

AWINZ  has never been tested against the Charitable objectives assessed in gaining incorporation under the Charitable Trusts Act 1957.

AWINZ was a business, it was always meant to be a business and the territorial animal welfare authority  business plan it/Neil Wells submitted to Waitakere City Council, MAF and other officials  in 1996  proves this as the format  which the approved organisation  AWINZ adopted  and that  this was a business venture as opposed to a  charitable venture.

There is no evidence that the AWINZ trust has done anything of a charitable nature and they have never had the ability to pay for  the legal proceedings that they have been party to in recent years. They have used the  charitable dollar to  derive an income for themselves from the ‘spoils of war of litigation’ (see below).

The AWINZ Deed of Trust (5/12/06) states under section 5 (“Powers”):

“… the powers that the Board may exercise in order to carry out its charitable objects are as follows:

…… (a) To incorporate as a Trust Board under the provisions of the Charitable Trust Act 1957….”

However, no incorporation had been effected by the time this Deed dated 5 December 2006 had been witnessed and duly executed. Nor has incorporation been effected since that date.

The Minutes of the AWINZ Board dated 10 May 2006 state:

“Neil [Edward Wells] advised that the original signed deed [of Trust] had been mis-filed.

“Neil [Edward Wells] and Wyn [Winifred Norien Hoadley] will work on a revision of the deed.

“Deed needs to be finalised in the next four weeks.

“AWINZ has not been registered under the Charitable Trusts Act to date. This needs to be organised.

“IRD approval required.

“It was agreed to seek charitable trust approval with IRD and Charitable Trust Act.”

Here is the explanation for why AWINZ never submitted and has never registered its “original signed Deed of Trust” (assuming one actually existed) with the Charities Commission….

On 10th May 2006 Trust Settlor, Neil Wells informed the Trust Board that the “signed original”  had been “mis-filed” (i.e lost). By the time AWINZ received charity status with the Charities Commission on 28 September 2007, the “original” deed remained “mis-filed” (lost). Then one month after registration the Charities Commission uploaded the AWINZ “Deed of Trust and Revocation” dated 5th December 2006 on to its website. The so-called “signed original” dated 1 March 2000 referred to on page one of the 2006 Deed, has never been filed with the Charities Commission as it should be in line with the law and the principles of honesty, accountability and transparency.

 AWINZ produced one original deed in the court in 2007  and  two “ originals “ in the district court  in 2008 all being copies of the alleged 2000 deed.

On 21 November 1999 Neil Edward Wells, acting “For the Board of Trustees” of  “the Animal Welfare Institute of New Zealand (AWINZ)”, wrote to Hon John Luxton, Minister of Food, Fibre, Biosecurity and Border Control, “to formalise” AWINZ’s application to be declared an approved organisation under the provisions of section 121 of the [Animal Welfare] Act [1999].” This was the only application AWINZ ever made seeking this “approved organisation” status under the Act.

Wells attached Appendices including “Appendix V -Charitable Trust Deed”.

Under the heading “2. Functions of the [Animal Welfare] Institute” he wrote:

A charitable trust has been formed by Deed of Trust as the “Animal Welfare Institute of New Zealand” (AWINZ). It is being registered under Part II of the Charitable Trusts Act 1957. [Emphasis added]. The founding trustees are:

Nuala Grove

Sarah Giltrap

Graeme Coutts

Neil Wells

The Deed of Trust is set out in Appendix V

This letter of application to the Minister of the Crown dated 21 November 1999 claims that AWINZ had been formed by way of  a Trust Deed executed and signed by the four Founding Trustees (named) and that:

“The principal purpose of the Institute is to promote the welfare of animals. The Institute aims, inter alia, to provide a national body to which individual Inspectors will be properly answerable.”

and

“It [AWINZ] is being registered under Part II of the Charitable Trusts Act 1957.”

The problem is that “original” Trust Deed Mr Wells refers to in his letter of 21 November 1999 to Minister Luxton did not exist at the time of writing. The copy supplied to the Minister at the time application for “approved organisation” status was being sought for “AWINZ” was an unsigned and undated Deed of Trust. This signed AWINZ “Deed of Trust” he refers the Minister to in 1999, has never been registered with the Charities Commission and AWINZ has never sought to be incorporated under the Charitable Trusts Act 1957 on the basis of any “Deed of Trust”.

Mark Neeson, Senior Policy Analyst for the MAF, wrote to Neil Wells on 28 January 2000:

“Legal status of the Trust

20. Could you please provide documentary evidence confirming that the Trust has been legally registered under the Charitable Trusts Act 1957.”

Mr Wells, who never supplied any evidence, met with MAF officials before responding to this letter, to put his case that an organisation like AWINZ, which had not been incorporated under the Act , should still be able to apply for and gain “a recommendation for approval … under the provisions of section 121 of the Animal Welfare Act 1999.

In an email dated 17 March 2000 to Mark Neeson of MAF, Neil Wells argued that if AWINZ was required to become an incorporated entity under the Charitable Trusts Act 1957, before its application for approval under the Animal Welfare Act 1999 could even be considered by the Minister and MAF; then this would be unfair. Going through the claimed arduous process with the Ministry of Commerce involving incorporation, he contended, would add “months” to the process before a valid application under the Animal Welfare Act could even be commenced by AWINZ.

In reality the process of incorporating a Trust under the Charitable Trusts Act 1957 was not that difficult at that time (or today) and Wells appears to have deliberately exaggerated the ‘difficulty’ of the task. As noted above, he had incorporated two Trusts earlier in 1999 with little difficulty, so he knew that the process was relatively easy.

Mr Neil Wells pointed out to Mark Neeson that an unincorporated Trust such as AWINZ constitutes a “legal Person” as soon as the Trust Deed has been witnessed and executed by the Trustees and that even though AWINZ was not a corporate body, such as a company or an incorporated society; AWINZ should still be considered as a potentially “approved organisation” under section 121 the Animal Welfare Act. However, his argument was based on the false premise – that a Trust that is not incorporated constitutes an “organisation” as envisaged under the legislation which he had helped to write. For an organisation to be a legal entity in its own right  it must be incorporated, a fact that should have been well understood by Mr Wells – a barrister.

In the email dated 17 March 2000, Mr Wells wrote identifying himself as “Programme Coordinator – Animal Welfare Investigators”, to Mark Neeson of MAF, stating:

“AWINZ can produce evidence that the trust is in being by providing a signed copy of the trust deed and will give an undertaking that it will be registered with the Ministry of Commerce.” [Emphasis added]

Again, as stated above, the Trust was never registered. The only way of doing that was to get it incorporated.

On 25 March 2000 Mr Wells wrote to the Minister – Hon. Jim Sutton:

“A signed copy of the Deed of Trust will follow. The original is being submitted to the Ministry of Commerce for registration as a charitable trust in accordance with clause 20(a) of the Deed.”

There exists compelling evidence that this statement contains falsehoods:

1. As we have already established, AWINZ has never been incorporated as a charitable trust.

2. Neither of the AWINZ Trust Deeds dated 1 March 200 or 5 December 2006, contain a clause 20(a), a clause that Neil Wells referred the Minister to as evidence that the Trustees were duty-bound under the Deed to incorporate AWINZ under the Charitable Trusts Act 1957.

3. It appears that the Minister was deliberately misled by Wells into thinking that the AWINZ Trustees/Board not only intended shortly to have AWINZ incorporated, but were required to do so by law because of clause 20(a) in their Deed of Trust. There is no evidence that any such application for incorporation was ever made or that a clause 20(a) ever existed in the Deed of Trust. It is not in the so-called “original signed Deed of Trust” dated 1 March 2000.

The AWINZ “Deed of Trust and Revocation” dated 5 December 2006, on the Charities website, states:

“On the 1st day of March 2000 the Settlor [Neil Edward Wells] established a trust for charitable purposes by creating the Trust [AWINZ] provided for it in this deed…”

The fact that neither of the Deeds dated 1 March 2000 nor 5 December 2006 contain clause 20(a) – referred to in Mr Well’s letter dated 21 November 1999 to the Minister, proves that the Trust Deed dated 1 March 2000 cannot be the  original Deed of Trust. Alternatively it proves that a clause 20(a) never existed, other than in the mind of Mr Wells.

So why did the Charities Commission allow a Trust whose Settlor, barrister Neil Edward Wells, was unable to produce a copy of its original signed Deed of Trust, to be granted charitable status under the Charities Act 2005?

One can only assume that Charities Commission Registration officials were duped into thinking that AWINZ was in fact an incorporated Charitable Trust, when it was not; and that compliance issues relating to Trust Deeds had all been taken care of by Ministry officials as part of its supposed ‘incorporation’. Without a Statutory Declaration having ever been made with respect of its original Deed of Trust or subsequent versions of it involving elements of revocation, the true status of this “Trust” and the nature of its “charitable activities remain highly questionable and warrant further investigation.

References

http://www.anticorruption.co.nz/wp-content/uploads/2012/07/maf-letter-24-dec-1999.pdf

http://www.transparency.net.nz/wp-content/uploads/2011/07/AWINZ-MEETING-MINUTES-doc-10-05-06-original.pdf

http://www.anticorruption.co.nz/wp-content/uploads/2012/07/awinz-deed-maf-copy.pdf

New developments in animal welfare. New Zealand Government Media 19 January 2001

http://www.mpi.govt.nz/news-resources/news/new-developments-in-animal-welfare