Charles William Williams and Others v Auckland Council
Jurisdiction | New Zealand |
Judge | Elias CJ,William Young,O'Regan JJ |
Judgment Date | 11 March 2016 |
Neutral Citation | [2016] NZSC 20 |
Docket Number | SC 124/2015 |
Court | Supreme Court |
Date | 11 March 2016 |
[2016] NZSC 20
Elias CJ, William Young and O'Regan JJ
SC 124/2015
IN THE SUPREME COURT OF NEW ZEALAND
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.
C R Carruthers QC for Applicants
M E Casey QC and G W Hall for Respondent
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A The application for leave to appeal is dismissed.
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B The applicants must pay costs of $2,500 to the respondent.
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.
The points that the applicants seek to raise on appeal are:
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(a) the question of the proper interpretation of the term “successor” in s 40(5) of the Public Works Act; and
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(b) the basis on which the Court should exercise the discretion as to whether declaratory relief should be granted.
We will deal with these in reverse order.
This proposed ground of leave deals with the Court of Appeal's decision to exercise its discretion not to make a declaration in favour of those claimants who were found to come within the s 40(5) definition of successor. The applicants argued that there was either an error in principle or that the exercise of the discretion was plainly wrong.
The Court of Appeal declined to give a declaration for two main reasons. The first was delay. The second was that the applicants had only an economic interest in the land, rather than a personal familial interest.
The applicants' case was that their right to have the land offered back to them arose in 1982, when the Public Works Act came into effect, or alternatively in 1995.
The applicants submit that they should not be penalised for delay because the respondent should have come forward and offered the land back to them as soon as it became subject to the offer back process. That submission must be seen against the background that the respondent did not, and still does not, believe that the land is subject to that process.
The Court considered that the applicants did not have any personal or familial interest in the land, but only an economic interest. 3 It noted that the claims had been conducted and financed by a litigation funder, under an arrangement which would yield only a small proportion of the proceeds of a successful claim to the named applicants. The applicants say they...
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