Charles William Williams and Others v Auckland Council

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

[2016] NZSC 20

Court:

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.

Counsel:

C R Carruthers QC for Applicants

M E Casey QC and G W Hall for Respondent

  • A The application for leave to appeal is dismissed.

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

JUDGMENT OF THE COURT
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 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.

5

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.

Delay
6

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 present litigation was commenced in 2005, so the delay was either more than 20 years or about 10 years. There was a dispute about the time at which the applicants became aware that the land was no longer held for a public work, but even if the most favourable view is taken they still delayed for 10 years in commencing their litigation
7

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.

Personal interest in the land
8

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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2 cases
  • Aztek Ltd v The Attorney-General
    • New Zealand
    • Court of Appeal
    • 24 Junio 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 Septiembre 2016
    ...QC for Applicants M E Casey QC and G W Hall for Respondent 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. JUDGMENT OF THE COURT REASONS 1 On 11 March 2016, this Court issued a......

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