Bennett v Auckland Council - [2013] NZHC 1357

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-007348 [2013] NZHC 1357

UNDER the Public Works Act 1981

BETWEEN JANICE AILEEN BENNETT, GILLIAN MADGE CLARK, and ROSALIE HILDA MAITLAND
Plaintiffs

ANDAUCKLAND COUNCIL Defendant

CIV-2006-404-001881

BETWEEN PATRICIA DORA MARY SPENCER- WOOD
Plaintiff

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-007350

BETWEEN DAVID JOHN McCORMICK Plaintiff

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-007095

BETWEEN THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND, DONALD ALEXANDER McINTOSH and LYNDA ANNE RYAN
Plaintiffs

ANDAUCKLAND COUNCIL Defendant

BENNETT & ORS v AUCKLAND COUNCIL [2013] NZHC 1357 [10 June 2013]

CIV-2005-404-004351

BETWEEN INEZ BEVERLEY LAVELL and LESLEY ANNE HENSLEY Plaintiffs

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-004280

BETWEEN CHARLES WILLIAM WILLIAMS and
JEAN ELIZABETH MORLEY Plaintiffs

ANDAUCKLAND COUNCIL Defendant

CIV-2005-404-007351

BETWEEN DONALD MICHAEL STEWART Plaintiff

ANDAUCKLAND COUNCIL Defendant

Hearing: 17 May 2013

Appearances: C R Carruthers QC, W L Aldred and P M Cassin for Plaintiffs
M E Casey QC and G Milner-White for Defendant

Judgment: 10 June 2013

JUDGMENT OF VENNING J DISCOVERY/INTERROGATORIES

This judgment was delivered by me on 10 June 2013 at 4.00 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: P Cassin, Auckland
Kensington Swan, Auckland

Copy to: C Carruthers, Wellington
M Casey, Auckland

Introduction

[1] The Auckland Council (the Council) seeks orders directing the plaintiffs in the above proceedings to provide further and better discovery and to answer certain interrogatories.

Background/Parties

[2] The Council is the successor of the Waitakere City Council and Waitakere

Properties Ltd (a local authority trading enterprise under the Local Government Act

1974). From 1989 it also became responsible for the Auckland Harbour Board’s (the

Harbour Board) operations and obligations.

[3] In September 1951 the Harbour Board acquired certain land from its original owners under the Public Works Act 1928. The land was acquired for the purposes of port facilities and associated industrial and commercial purposes.

[4] The various plaintiffs claim to be the successors of the original owners. They say that, with the coming into effect of the Public Works Act 1981 (the Act) on 1
February 1982, the Harbour Board became obliged to offer the land to them as it was no longer required for public works. The plaintiffs seek orders declaring the Council is to offer the balance land to them (where the land or part of it is still retained) at a price to be fixed as at 1 August 1983 and, in addition, where the land has been sold, the plaintiffs seek damages following an inquiry (with the damages to be fixed as the difference between the price at which the land should have been offered to the plaintiffs and the market value of the land on the dates that it was disposed of).

[5] The Council denies that the Harbour Board became obliged to offer to sell the land to the original owners or the plaintiffs under the Act. It says the land was not, on the coming into force of the Act, held for any public work, but alternatively, if it
was, it…

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.

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Details

Case: [2013] NZHC 1357
Decision Date: 10 June 2013

CaseChat Overview and Summary

The case of Bennett v Auckland Council involves multiple plaintiffs seeking orders from the Auckland Council to provide further and better discovery and answer certain interrogatories. The plaintiffs, who are successors to the original landowners, claim that the Council is obliged to offer them the land at a price fixed as at 1 August 1983, and seek damages if the land has been sold. The Council denies these claims and argues that the plaintiffs' claims are statute-barred or should be refused on discretionary grounds. The court considered four categories of information sought by the Council, including the circumstances of the land acquisition, the financial position of the plaintiffs in August 1983, the plaintiffs' knowledge of their rights, and the litigation funding issue. The court allowed some of the interrogatories and further discovery, but disallowed others as being oppressive, burdensome, or irrelevant. The plaintiffs were ordered to provide a redacted copy of the litigation funding arrangement, while discovery of correspondence with the litigation funder was not required. Costs were to lie where they fall on this application.

Orders