Kawakawa Station Ltd v New Zealand Walking Access Commission
| Jurisdiction | New Zealand |
| Judge | Cull J |
| Judgment Date | 11 April 2019 |
| Neutral Citation | [2019] NZHC 791 |
| Date | 11 April 2019 |
| Court | High Court |
| Docket Number | CIV-2019-485-22 |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2019-485-22
CIV-2018-485-17
Under The Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016
In the Matter of The Walking Access Act 2008
K Anderson and A J McClure for Applicants in — 22 proceeding (and Respondent in — 17 proceeding)
H S Hancock and C F J Reid for Respondent in — 22 proceeding (and Applicant in — 17 proceeding)
Arbitration, Property — Overseas Investment Office conditions for purchase — walkway recommendation — stay application for judicial review proceedings — whether a clause, which granted only one party a right to refer a dispute to arbitration, amounted to a binding arbitration agreement — whether decision of respondent final — Arbitration Act 1986
Protest to jurisdiction by The New Zealand Walking Access Commission (“the Commission”) for the High Court to hear and determine judicial review proceedings arising from an arbitration agreement. The dispute concerned a walkway recommendation made by the Commissionto Kawakawa Station Ltd (“Kawakawa Station”) over its land. By virtue of a consent granted to Kawakawa Station by the Overseas Investment Office (“OIO”), Kawakawa Station acquired the freehold interest in sensitive land together with a leasehold interest in the adjoining land, owned by the second applicants, the Kawakawa 1D2 Ahu Whenua Trust (“the Trust”). The Trust was the second applicant to the judicial review proceedings and challenged both the Commission's recommendations for a walkway, which the Trust said would affect its land, and the lack of consultation with the Trust on the part of the Commission. The consent was subject to conditions, namely, KawakawaStation was to implement any recommendations of the Commission and endeavour to have any disputes between the parties resolved by arbitration. Following an unsuccessful mediation the Commission placed a caveat over Kawakawa Station, to protect its interest before Kawakawa Station settled the sale of the land to a New Zealand purchaser. Kawakawa Station had filed judicial review proceedings challenging the lawfulness and reasonableness of the Commission's walkway recommendation. The Commission sought a stay of the judicial review proceedings under article 8(1) schedule 1 Arbitration Act 1996 (“AA”) (rules applying to arbitration generally — arbitration agreement and substantive claim before court) and an order referring Kawakawa Station to arbitration.
The issues were: whether the was an arbitration agreement under the AA. If yes, which parties did it bind; whether the judicial review proceedings matters to which the arbitration agreement applied and whether the Court grant a stay of proceeding and refer the matter to arbitration, either pursuant to the AA or r15.1 High Court Rules 2016 (“HCR”) (dismissing or staying all or part of proceeding).
The Court held that althoughthe condition appeared as a condition of ministerial consent through the OIO, it operated as a condition of land acquisition. By its acceptance of the OIO's conditions, Kawakawa Station had agreed to be bound to endeavour to mediate and arbitrate with any one of the named parties it had to consult. Here it was the Commission.
The obligation to arbitrate was on Kawakawa Station. It was obligated to follow through with the arbitration, as it had a willing party, the Commission, ready to submit to arbitration. The condition was a valid arbitration clause. The Trust was not a party to the consent and nor was it a nominated party by the OIO in the conditions attaching to its consent. Kawakawa Station's interests and the Trust's interests were aligned. For those reasons, it was in the interests of the parties that the Trust proceedings were heard simultaneously with Kawakawa Station's proceedings.
It was strongly arguable that the Commission had not exercised a statutory power of decision-making. Instead, it had made recommendations, which were subject to further refinement. The availability of judicial review before a final decision had been made was wholly exceptional. the matters in the judicial review claim overlapped with the matters that would be the subject of arbitration and were more properly the province of the arbitrator and an arbitral proceeding. The applicants had a right to judicial review guaranteed under s27(2) New Zealand Bill of Rights Act 1990 (“NZBORA”) (right to justice – judicial review).
It was not in the interests of justice for both proceedings to be heard at the same time, in separate jurisdictions. The Court, in its inherent jurisdiction and under r 15.1 HCR should grant a stay of proceeding in these circumstances, in the interests of justice and considering the cost and convenience to all parties.
The application for stay was granted. The parties were directed to begin the arbitration process.
JUDGMENT OF Cull J
| Background | 8 |
| The parties' positions on jurisdiction | 16 |
| The issues | 20 |
| Is condition 8 an arbitration agreement under the Arbitration Act 1996? | 22 |
| If condition 8 is an arbitration agreement, which parties does it bind? | 41 |
| Are the judicial review proceedings matters to which the arbitration agreement applies? | 48 |
| Should the Court grant a stay of proceeding and refer the matter to arbitration, either pursuant to the Arbitration Act 1996 or the High Court Rules 2016? | 62 |
| Conclusion | 75 |
| Result | 76 |
| Caveat proceedings | 77 |
| Costs | 78 |
This case concerns a protest to jurisdiction for this Court to hear and determine judicial review proceedings arising from an arbitration agreement. A dispute has arisen between Kawakawa Station Limited (Kawakawa Station) and the New Zealand Walking Access Commission (the Commission) over a walkway recommendation made by the Commission over Kawakawa Station's land.
By virtue of a consent granted to Kawakawa Station by the Overseas Investment Office (OIO), 1 Kawakawa Station acquired the freehold interest in sensitive land at Kawakawa Station at Cape Palliser, Wairarapa, together with a leasehold interest in the adjoining land, owned by the second applicants. The consent was subject to conditions. The two conditions relevant to this proceeding require Kawakawa Station to implement any recommendations of the Commission (condition 6), and endeavour to have any disputes between the parties resolved by arbitration (condition 8).
Following an unsuccessful mediation between the applicants and the Commission on 10 December 2018, the Walking Access Commission placed a caveat over Kawakawa Station, to protect its interest before Kawakawa Station settles the
sale of the land to a New Zealand purchaser. The Commission filed an originating application for an order that the caveat not lapseBoth applicants filed a notice of opposition to the Commission's application and filed judicial review proceedings challenging the lawfulness and reasonableness of the Commission's walkway recommendation. The Commission filed an appearance under protest to jurisdiction, on the grounds that any dispute between Kawakawa Station and the Commission was to be resolved by mediation and, failing that, by arbitration. The Commission seeks a stay of the judicial review proceedings under article 8(1) schedule 1 of the Arbitration Act 1996 and an order referring Kawakawa Station to arbitration.
This proceeding concerns the two preliminary issues:
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(a) the stay application; and
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(b) the caveat application.
Just prior to the hearing commencing, the parties had reached agreement that the caveat placed by the Commission over Kawakawa Station's land shall lapse on 15 April 2019. This will enable Kawakawa Station to proceed with an agreement for sale and purchase of the land in June 2019. I made formal consent orders in relation to the caveat during the hearing. These are addressed and set out at the end of this judgment.
The focus of this decision is on the Commission's protest to jurisdiction and application for stay of the applicants' judicial review proceedings.
Kawakawa Station is a New Zealand registered company, owned and controlled by investors from overseas. For the purposes of the OI Act, Kawakawa Station is an overseas person.
On 4 November 2014, Kawakawa Station entered into a sale and purchase agreement to purchase the land, known as Kawakawa Station at Cape Palliser, Wairarapa. Because it is an overseas person, Kawakawa Station applied to the OIO for consent to acquire the freehold interest in Kawakawa Station and the leasehold interest in the adjoining land, Ngawi Station, which is Maori freehold land, owned by the second applicants, the trustees of Kawakawa 1D2 Ahu Whenua Trust (the Trust),
In 2 June 2015, the relevant Ministers granted consent under the OI Act permitting Kawakawa Station to invest in “sensitive land” (the OI consent), namely to acquire a freehold interest in 1379 ha of land at Kawakawa Station and a leasehold interest in approximately 785 ha of land at Ngawi Station, subject to specified conditions of consent. It is the conditions of consent, particularly conditions 6 and 8, which lie at the heart of this stay proceeding. They stipulate as follows:
WAC Consultation
6. The Applicant must consult with the New Zealand Walking Access Commission (“WAC”) to determine what the Applicant can reasonably do (having regard to the proposed use of the relevant land) to provide, protect or...
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