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Aztek v Attorney-General

Aztek v Attorney-General

Case [2020] NZCA 249 24 June 2020

Jurisdiction

Statutory Interpretation

Remedial Action

Offer Back Obligations

Administrative Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA482/2018
[2020] NZCA 249

BETWEEN	AZTEK LIMITED First Appellant TRESTA MAY PRUJEAN Second Appellant
AND	THE ATTORNEY-GENERAL Respondent

Hearing:	24 October 2019
Court:	French, Miller and Cooper JJ
Counsel:	M E Casey QC and A J Casey for Appellants J R Burns for Respondent
Judgment:	24 June 2020 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe Chief Executive’s decision of 21 February 2011 to exempt the land from the requirement to offer back under s 40 of the Public Works Act 1981 is set aside and is to be reconsidered in accordance with this judgment.
CThe appellants are entitled to costs calculated for a standard appeal on a band A basis together with usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No
Introduction  [1]
Background  [6]
The High Court judgment  [19]
Appellants’ argument  [27]
Respondent’s argument  [35]
Analysis  [45]
         Statutory purpose  [46]
         The text  [54]
Discretion  [86]
Relief  [110]
Result  [114]

Introduction

This case concerns the proper interpretation and application of s 40 of the Public Works Act 1981 (the Act) in circumstances where:
(a)at the time of a determination that land was no longer required for a public work, the company from which the land had been acquired had ceased to exist because it was no longer on the register of companies; and
(b)the company was able to be restored to the register.
Because of its central importance to the judgment, we set out s 40 of the Act at the outset. It provides as follows:
40       Disposal to former owner of land not required for public work
(1) Where any land held under this or any other Act or in any other manner for any public work—
(a)       is no longer required for that public work; and
(b)       is not required for any other public work; and
(c)       is not required for any exchange under section 105—
the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, as the case may be, shall endeavour to sell the land in accordance with subsection (2), if that subsection is applicable to that land.
(2) Except as provided in subsection (4), the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, unless—
(a) he or it considers that it would be impracticable, unreasonable, or unfair to do so; or
(b) there has been a significant change in the character of the land for the purposes of, or in connection with, the public work for which it was acquired or is held—
shall offer to sell the land by private contract to the person from whom it was acquired or to the successor of that person—
(c) at the current market…

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 Aztek v Attorney-General

Details

AGLC: Aztek v Attorney-General [2020] NZCA 249
Case: [2020] NZCA 249
Decision Date: 24 June 2020 at 10 am

CaseChat Overview and Summary

The appeal of Aztek Limited and Tresta May Prujean (appellants) was allowed by the New Zealand Court of Appeal. Aztek had sold two properties to the Crown for roading works in 2005. In 2010, the New Zealand Transport Agency (NZTA) determined that the land was no longer required for those works. However, the Chief Executive of Land Information New Zealand decided in 2011 that it was impracticable to offer the land back to Aztek because it no longer existed as a company. Aztek was restored to the register of companies in 2015 and the appellants sought a declaration that the respondent should offer to sell the land to Aztek at its market value. The Court of Appeal held that the Chief Executive should have made reasonable inquiries to ascertain whether Aztek's shareholders wished to have it restored to the register, as it would have been reasonable and practicable to offer the land back to Aztek. The Court of Appeal also held that there were no valid reasons to decline relief on the basis of the discretionary considerations the High Court judge had addressed. The appeal was allowed and the Chief Executive's decision of 21 February 2011 to exempt the land from the requirement to offer back under s 40 of the Public Works Act was set aside and is to be reconsidered in accordance with this judgment.

Orders