Charles William Williams and Others v Auckland Council

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,William Young,O'Regan JJ
Judgment Date11 March 2016
Neutral Citation[2016] NZSC 20
Date11 March 2016
Docket NumberSC 124/2015

[2016] NZSC 20

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, William Young and O'Regan JJ

SC 124/2015

Between
Charles William Williams, Jean Elizabeth Morley, Inez Beverly Flavell, Lesley Anne Hensleigh, The Royal New Zealand Foundation of the Blind, Donald Alexander Mackintosh, Lynda Anne Ryan, Janice Aileen Robertson, Gillian Madge Clark, Rosalie Hilda Mailand, Donald Michael Stewart, Patricia Dora Mary Spencer-Wood, Sophie Maria Hunt and David John Mccormick
First to Seventh Applicants
and
Auckland Council
Respondent
Counsel:

C R Carruthers QC for Applicants

M E Casey QC and G W Hall for Respondent

Application for leave to appeal against the Court of Appeal's (CA) decision not to make a declaration in favour of those of the applicants who were found to come within s40(5) Public Works Act 1981 (PWA) (definition of successor) — the applicants were seeking to have land offer backed back to them — the CA made a declaration on the grounds of delay in bringing the litigation and because they had an economic rather than familial connection with the land — applicants were funded by a litigation funder and the CA said the arrangement would yield only a small proportion of the proceeds of a successful claim to the applicants — the High Court had defined “successor in broad terms but CA applied a narrower test — whether the decision to refuse to exercise the discretion to grant declaratory relief on the basis of delay was in error — whether the CA had erred by relying on the litigation funding agreement as showing the claimants had only an economic interest in the land — whether the term successor was to be applied narrowly or widely.

The issues were: whether the decision to refuse to exercise the discretion to grant declaratory relief on the basis of delay was in error; whether the CA had erred by relying on the litigation funding agreement as showing the claimants had only an economic interest in the land; and whether the term successor was to be applied narrowly or widely.

Held: The present litigation was commenced in 2005, so the delay was, if the most favourable view was taken, 10 years before commencing litigation. The submission that the respondent should have come forward and offered the land back to the applicants as soon as it became subject to the offer back process had be seen against the background that the respondent did not believe that the land was subject to that process.

The CA's judgment was not critical of the use of a litigation funder, but rather emphasised that the purpose of the PWA was to restore to someone whose land has been compulsorily taken land with which that person had a personal or familial connection. That was in keeping with the fact that the offer back right applies only to the original owner and the original owner's successor, as that term was restrictively defined in s40(5). In the present case the land was taken in the 1950s and the present named applicants did not have any real personal interest in the land.

The evaluation of these factors was very specific to the facts of the present case and the issues that the applicants now wished to raise were not matters of general or public importance. There was no risk of a miscarriage of justice in the event that leave was not given.

In Port Gisborne Ltd v Smiler it was noted that there was a distinction between cases where only part of the land was taken and cases where all of an area of land was taken. In the latter case, the persons entitled to enforce the offer back provision were only those who would have been entitled to take under the will or intestacy of the original owner, whereas a wider class of claimants was permitted in relation to the former category. In Smiler, the CA described the more limited class of claimants where the whole section of land was taken as “immediate beneficiaries under the will or intestacy of the original owner”.

There was an arguable point as to the interpretation of s40(5). This was potentially a point of public importance. But given the conclusion on the discretion issue, it was essentially moot. Even if the applicants succeeded on this point, it would have no impact on the result. This was not an appropriate case for this point to be considered by the Court.

Leave to appeal declined.

JUDGMENT OF THE COURT
  • A The application for leave to appeal is dismissed.

  • B The applicants must pay costs of $2,500 to the respondent.

REASONS
1

The applicants seek leave to appeal against a decision of the Court of Appeal. 1 In that decision, the Court of Appeal dismissed an appeal from a decision of Fogarty J in relation to a case involving the offer back provisions in the Public Works Act 1981. 2 The Court of Appeal's decision led to the same outcome as that of Fogarty J, but its reasoning was quite different.

2

The points that the applicants seek to raise on appeal are:

  • (a) the question of the proper interpretation of the term “successor” in s 40(5) of the Public Works Act; and

  • (b) the basis on which the Court should exercise the discretion as to whether declaratory relief should be granted.

3

We will deal with these in reverse order.

Discretion
4

This proposed ground of leave deals with the Court of Appeal's decision to exercise its discretion not to make a declaration...

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2 cases
  • Aztek Ltd v The Attorney-General
    • New Zealand
    • Court of Appeal
    • 24 June 2020
    ...above n 34. 37 At [33]. 38 Williams v Auckland Council [2015] NZCA 479, (2015) 7 NZ ConvC 96–013. 39 Williams v Auckland Council [2016] NZSC 20. 40 See for example Mark v Attorney-General [2011] NZCA 176, [2011] 2 NZLR 538 at [63]; Attorney-General v Edmonds CA97/05, 28 June 2006 at [60]......
  • Charles William Williams and Others v Auckland Council
    • New Zealand
    • Supreme Court
    • 30 September 2016
    ...for recall of the leave judgment dismissed. JUDGMENT OF THE COURT A The application to recall the judgment in Williams v Auckland Council [2016] NZSC 20 is dismissed. B The applicants must pay costs of $1,000 to the respondent. REASONS 1 On 11 March 2016, this Court issued a judgment dismis......

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