Ace Developments Ltd v Attorney-General - [2016] NZHC 2467

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-485-000933 [2016] NZHC 2467

BETWEEN
ACE DEVELOPMENTS LIMITED

Appellant

AND

HER MAJESTYʼS ATTORNEY- GENERAL

Respondent

Hearing: 21 September 2016

Appearances:

G Jones and M T Henderson for Appellant
P H Higbee and N C Anderson for Respondent

Judgment:

17 October 2016

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Ace Developments Limited (ADL) appeals to this Court a compensation decision in respect of land it previously owned in Moorhouse Avenue, Christchurch (and formerly leased for a motor vehicle yard) compulsorily acquired by the Crown for the purposes of the proposed Metro Sports Facility in that city. The compensation decision was made under the provisions of the Canterbury Earthquake Recovery Act 2011 (the CER Act).

[2] The land in question had vested in the Crown on 14 August 2014 and the compensation decision which is the subject of the substantive appeal in this proceeding was made on 29 October 2015. The compensation decision was one made in terms of the CER Act by the Associate Minister for Canterbury Earthquake Recovery following recommendation from a Compensation Panel which heard
extensive submissions on the issue. It determined that ADL was entitled to

ACE DEVELOPMENTS LIMITED v ATTORNEY-GENERAL [2016] NZHC 2467 [17 October 2016]

compensation of $3,378,899.10 plus interest. The CER Act contains a right of appeal to this Court which must be brought in accordance with the High Court Rules.

Application for leave to adduce further evidence

[3] The present application before this Court is an application by ADL for leave to adduce further evidence for the appeal. It is brought pursuant to r 20.16 of the High Court Rules.

[4] From ADL’s application itself, the further evidence it seeks leave to adduce is

particularly:

(a) Evidence as to the sums being invested and likely return on such investment by other business people acquiring land in the vicinity of Moorhouse Avenue, Christchurch, for development as motor vehicle dealerships.

(b) Expert evidence comparing the economics of the appellant’s proposal to relocate its business to another site in Moorhouse Avenue against the economics of the investments of the other business people making or proposing similar projects.

[5] The grounds stated by ADL in its application on which the order is sought are:

(a) The appellant claims compensation for the cost of acquiring and developing substitute premises on or near Moorhouse Avenue to enable it to relocate its business.

(b)One of the grounds upon which the Associate Minister disallowed that part of the claim was that no reasonable businessperson using their own money would embark on a project such as that proposed by the appellant.

(c) To enable this Court to properly and justly determine the appeal it needs to have evidence upon which it can determine whether the appellant’s proposed project is reasonable.

(d)It was not possible for the appellant to obtain that evidence for the hearing before the decision maker because there were no powers available to compel production of that evidence.

(e) There is…

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 Ltd v Attorney-General

Details

AGLC: Ace Developments Ltd v Attorney-General [2016] NZHC 2467
Case: [2016] NZHC 2467
Decision Date: 17 October 2016

CaseChat Overview and Summary

Ace Developments Limited (ADL) appeals against a compensation decision made under the Canterbury Earthquake Recovery Act 2011, which provided for the compulsory acquisition of ADL's land for the Metro Sports Facility in Christchurch. The Associate Minister for Canterbury Earthquake Recovery determined that ADL was entitled to compensation of $3,378,899.10 plus interest, which ADL considered inadequate. ADL sought leave to adduce further evidence in support of its appeal, particularly evidence of investments made by other business people acquiring land in the vicinity of Moorhouse Avenue for development as motor vehicle dealerships and expert evidence comparing the economics of ADL's proposal against other similar projects. The Attorney-General opposed the application, arguing that the evidence was not relevant to the determination of the appeal and there were no special reasons for hearing the evidence.

The Court found that there were no special reasons for hearing the evidence as it was not new or fresh, and ADL had chosen not to provide any additional evidence on the issue of reasonableness before the Associate Minister. Additionally, the proposed evidence was not relevant to the appeal as it related to compensation that was not available under the applicable statutory provisions. The evidence ADL sought to adduce related to compensation for the cost of acquiring and developing a substitute property for leasing to commercial tenants, in addition to the market value of the compulsorily acquired property. The Court concluded that such loss was not normal or direct but rather, consequential loss particular to ADL, and it could not be claimed as proper compensation under the CER Act.

The Court dismissed the leave application by ADL and awarded costs to the respondent (Attorney-General) on a category 2B basis together with disbursements as fixed by the Registrar.

Orders