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Chetham v Mighty River Power Limited

Chetham v Mighty River Power Limited

Case [2014] NZHC 3202 12 December 2014

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-488-000074 [2014] NZHC 3202

UNDER the Judicature Act 1908

IN THE MATTER

of an application for an interim injunction

BETWEEN

JULIANE KATHRYN CHETHAM, PATRICIA CATHERINE HEPERI, JARAD AARON PAKI PITMAN, GILBERT PATRICK HOLMES PAKI, WILLIAM RAYMOND WASSELL, ANI RAMARI PITMAN (as trustees of Patuharakeke Te Iwi Trust Board) Applicants

AND

MIGHTY RIVER POWER LIMITED First Respondent

THE ATTORNEY-GENERAL Second Respondent

Hearing: 1 December 2014

Appearances:

P J Tamatekapua and A S Castle for Plaintiffs
J Hodder QC and L Fraser for First Respondent
J R Gough and C C McKay for Second Respondents

Judgment:

12 December 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 12 December 2014 at 4.30 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Chapman Tripp, Auckland
Crown Law, Wellington

Copy to: P Tamatekapua, Auckland
J Hodder QC, Auckland

CHETHAM & Ors (as trustees of Patuharakeke Te Iwi Trust Board) v MIGHTY RIVER POWER LTD [2014] NZHC 3202 [12 December 2014]

Introduction

[1] Mighty River Power Limited (MRP) owns land at Marsden Point. It wants to sell some of the land that it no longer has a use for. The Patuharakeke Te Iwi Trust Board (PTB) has claims before the Waitangi Tribunal (the Tribunal) which are as yet unresolved. The land MRP proposes to sell falls within the Tribunal’s Te Paparahi o Te Raki inquiry district.

[2] PTB seeks injunctive relief halting the sale of the land by MRP until the outcome of a hearing into the sale of the land is concluded and findings in relation to PTB’s claims are made by the Tribunal. It also seeks declarations that the decision by MRP to sell the land is inconsistent with the principles of the Treaty of Waitangi (Te Tiriti o Watangi) (the Treaty) and that, in assisting in the sale, the Crown’s actions are inconsistent with the principles of the Treaty.

[3] MRP and the Attorney-General consider that the PTB’s amended statement of claim does not disclose a reasonably arguable cause of action. Nor is the relief sought available to PTB. They seek to have the claims against them struck out.

Factual basis

[4] I take the following factual basis from the pleaded amended statement of claim. PTB has a comprehensive claim before the Tribunal: WAI 745. It is prosecuted in conjunction with WAI 1308, a claim specific to lands contained in various Pukekauri and Takahiwai land blocks compulsorily acquired by the Crown. PTB has filed an application for urgency with the Tribunal in relation to the sale of the MRP land.

[5] The principal claims of PTB include:

(a) the confiscation of Te Poupouwhenua;

(b) the failure by the Crown to protect the land base of Patuharakeke. [6] The background to the Te Poupouwhenua claim is:

– land at Te Poupouwhenua was confiscated by the Crown for an alleged

raid of a settler’s house at Matakana in 1844 by three Maori men;

– only one…

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 Chetham v Mighty River Power Limited

Details

AGLC: Chetham v Mighty River Power Limited [2014] NZHC 3202
Case: [2014] NZHC 3202
Decision Date: 12 December 2014

CaseChat Overview and Summary

The applicants, comprising Patuharakeke Te Iwi Trust Board and others, sought injunctive relief and declarations against Mighty River Power Limited (MRP) and the Attorney-General, arguing that MRP’s proposed sale of certain land parcels was inconsistent with the principles of the Treaty of Waitangi and in breach of the Memorandum of Understanding (MOU) between MRP and the applicants. MRP and the Attorney-General sought to have the claims struck out. The applicants argued that the Crown, as majority shareholder of MRP, was in breach of s 45Q of the Public Finance Act 1989 by not acting in a manner consistent with the principles of the Treaty. They also claimed that MRP’s decision to sell the land was contrary to the understandings set out in the MOU. The Court found that MRP was not subject to s 45Q, as it was not the Crown but a mixed ownership model company operating under distinct rules and principles. The Court further held that the Crown, through its shareholding, could not direct MRP’s Board in relation to the sale of private land. Additionally, the Court determined that the MOU did not create any binding contractual obligations or enforceable rights, and therefore could not support the relief sought by the applicants. Consequently, the applicants' claims against MRP and the Attorney-General were struck out, and costs were reserved.

Orders