Ace Developments Limited v Attorney-General - [2018] NZHC 1705

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2015-485-933 [2018] NZHC 1705

BETWEEN
ACE DEVELOPMENTS LIMITED

Appellant

AND

ATTORNEY GENERAL Respondent

Hearing: 5 March 2018

Appearances:

G D Jones and J Patrick for Appellant
P H Higbee and E J Couper for Respondent

Judgment:

11 July 2018

JUDGMENT OF NICHOLAS DAVIDSON J

A. Introduction ……………………………………………………… [1]

Nub of the appeal ………………………………………………… [7]

B. Before the Panel ………………………………………………….. [10]

Mr Hill’s submission to the Panel for Ace ……………………….. [12]

The Panel Report …………………………………………………. [18]

C. Litigation Antecedent to appeal ………………………………… [29]

Ace Developments Limited v Attorney-General (High Court)…… [30]

Ace Developments Limited v Attorney-General (Court of Appeal) [46]

D. The submissions on appeal ……………………………………… [60]

The competing positions ………………………………………….. [60]

For Ace ……………………………………………………………. [62]

For the Crown ……………………………………………………. [74]

E. Discussion ………………………………………………………… [87]

“Business” ………………………………………………………... [87]

First alleged error – failure to allow disturbance costs …………. [88]

Second error alleged – valuation, legal costs and other ………… [96]

F. Disposition ………………………………………………………... [104]

ACE DEVELOPMENTS LTD v ATTORNEY GENERAL [2018] NZHC 1705 [11 July 2018]

A. Introduction

[1] This judgment is concerned with the correct measure of compensation for property compulsorily acquired (“taken”) by the Crown for the Metro Sports Facility in Christchurch, part of the rebuild of the city after the Canterbury Earthquake sequence which began in September 2010.

[2] Ace Developments Limited (“Ace”) owned property at

115-117 Moorhouse Avenue, Christchurch, which was developed and leased to car dealers, Ace Sales Limited and Orix Car Sales. It was taken by proclamation under the Canterbury Earthquake Recovery Act 2011 (“the CER Act”) and vested in the Crown on 14 August 2014.

[3] Part 2, sub-pt 5 of the CER Act established a process to determine compensation, and while that Act was repealed by the Greater Christchurch Regeneration Act 2016 (“the Regeneration Act”), compensation claims not completed ran on under the CER Act.

[4] Ace lodged a claim for compensation on 24 April 2014, seeking $8,135,029 which included the purchase of land in Moorhouse Avenue in substitution for that taken. A Compensation Panel (“the Panel”), heard the claim on 26 June 2015 and the Associate Minister, as the Minister’s delegate, attended the hearing. The Panel reported to the Associate Minister and a decision issued on 29 October 2015 held that Ace was entitled to compensation of $3,378,899.11 plus interest.

[5] Ace appeals against that decision under s 69(1A) of the CER Act, to which appeals pt 20 of the High Court Rules applies. The appeal proceeds by way of rehearing. It involves analysis of the evidence given before the Panel. Ace sought to improve its evidential position by seeking leave to adduce additional evidence on this appeal, but leave was refused by Gendall J,1 and an appeal against that
judgment was also dismissed.2

1 Ace Developments Ltd v Attorney-General [2016] NZHC 2467.
2 Ace Developments Ltd v Attorney-General [2017] NZCA 409, [2017]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ace Developments Limited v Attorney-General

Details

AGLC: Ace Developments Limited v Attorney-General [2018] NZHC 1705
Case: [2018] NZHC 1705
Decision Date: 11 July 2018

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Ace Developments Limited against the decision of the Associate Minister, who found that Ace was entitled to compensation of $3,378,899.11 plus interest for its property compulsorily acquired by the Crown for the Metro Sports Facility in Christchurch. Ace argued that it should have been compensated for the cost of developing a substitute site to replicate the improvements taken, which it claimed amounted to $2,059,000. The central legal issue was whether the cost of developing a substitute site could be claimed as a “disturbance” payment under section 66 of the Public Works Act 1981 (PWA). The court concluded that such costs were not compensatable as they represented double recovery or betterment. The court held that full compensation should be fair and reasonable, reflecting the replacement of the physical space and utility of the land and improvements taken, with any betterment adjusted to avoid a windfall. However, the lack of evidence meant the appeal had to be dismissed. The court also found that the compensation for valuation and legal costs was appropriate and reasonable, and any further costs related to the redevelopment proposal would result in double recovery and betterment. The appeal on the substantive legal issues was dismissed, and no further compensation was payable. The appeal against the refusal to order further professional fees, demolition costs, and marketing fees was adjourned part heard.

Orders