Criffel Deer Limited v Chief Executive of the Ministry for Primary Industries
[2025] NZCA 239
•17 June 2025 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA309/2024 |
| BETWEEN | CRIFFEL DEER LIMITED |
| AND | CHIEF EXECUTIVE OF THE MINISTRY FOR PRIMARY INDUSTRIES |
| Hearing: | 29 April 2025 |
Court: | Mallon, Hinton and Whata JJ |
Counsel: | K P Sullivan and J L Verbiesen for Appellant |
Judgment: | 17 June 2025 at 11 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay costs to the respondent for a standard appeal on a band A basis, with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
The Chief Executive of the Ministry for Primary Industries (MPI) refused to grant Criffel Deer Ltd (CDL) a prohibition certificate pursuant to the Farm Debt Mediation Act 2019 (FDMA).[1] CDL’s application for administrative review of this refusal was dismissed in June 2023.[2] CDL appealed that decision on a question of law to the High Court.[3] That appeal was also dismissed.[4] CDL now brings a further appeal to this Court.
The key facts
[1]Farm Debt Mediation Act 2019, s 39.
[2]Section 54.
[3]Section 57.
[4]Criffel Deer Ltd v Chief Executive of the Ministry of Primary Industries [2024] NZHC 862 [judgment under appeal].
In June 2004, CDL purchased a deer farm in Wanaka for approximately $5.8 million using finance obtained from Rabobank New Zealand Ltd (the Rabobank Debt).[5] This debt was secured by a first-ranking mortgage over the farm.
[5]CDL also obtained a $150,000 facility for the purchase of farm equipment.
Mr Michael Garnham is a director of CDL. In 2012, Mr Garnham wanted to purchase the 16-level office building known as the ASB Tower in Wellington. He approached ANZ Bank New Zealand Ltd (ANZ) for lending assistance. In order to meet ANZ’s commercial lending criteria, Mr Garnham offered to include the deer farm owned by CDL and another office building, CIP House, in the equity portfolio that would be used as collateral for the loan. ANZ agreed.
We do not have a copy of the final facility arrangements or security documentation but based on the available material, there were two facilities providing total funding of approximately $35.95 million:[6]
(a)Facility I, for approximately $32 million, listed an unidentified company as the borrower for the purpose of an “[i]nvestment facility”.
(b)Facility II, for approximately $3 million, listed “Criffel Farm” as the borrower for the purpose of “[v]arious funding requirements”.
[6]The total funds available and the individual facility totals are based on the information available to us.
We refer to this as the 2012 Facility Agreement.
Again, based on the available evidence, Facility I was created to pay for the ASB Tower and to repay a loan of approximately $10 million to another bank in respect of CIP House. Facility II was to repay the Rabobank Debt and replace it with a flexible facility for the farm. Underpinning this lending was a composite general security agreement with Mr Garnham’s interests (including CDL), a cross guarantee and indemnity between those interests and Mr Garnham personally, and first ranking mortgages over all three properties. As a consequence of this lending and the security arrangements, the Rabobank Debt was repaid in full.
ANZ claimed there were breaches of the 2012 Facility Agreement. The loan was not repaid when the term expired on 31 July 2014, and by that point it had increased to approximately $40 million.[7] However, in July 2015, an agreement to sell the ASB Tower was executed, which subsequently settled in September 2015. Following settlement, the remaining outstanding debt under the 2012 Facility Agreement related to the deer farm. ANZ then agreed to allow a further period for CDL to refinance and that ANZ would not enforce the remaining indebtedness until 4 February 2016. The remaining debt was not repaid by this time.
[7]The loan term initially expired on 3 February 2014, but was extended by ANZ until 31 July 2014.
On 25 February 2016, ANZ served notices of demand on CDL pursuant to ss 118 and 119 of the Property Law Act 2007 (PLA) in respect of the remaining debt. We refer to this as the ANZ Debt. The notice period expired in May 2016. No further steps were taken by CDL in respect of those notices within that time. ANZ’s solicitors wrote to CDL on 8 August 2016, noting that the PLA demands remained outstanding.
Following negotiations in late 2016, an understanding appears to have been reached between ANZ and Mr Garnham that the 2012 Facility Agreement would be replaced with a new facility agreement. The terms of that facility included an upfront payment of $1.5 million to reduce the balance owing, and a further $1.5 million payment within 18 months. ANZ approved a three-year term for repayment of the total balance, provided both capital reduction payments were made. ANZ’s solicitors were instructed to prepare a new draft facility document and by 12 December 2016, the first payment of $1.5 million had been received. Two new accounts were established and held in quarantine, with new interest rates applied to the borrowing.
However, a new facility agreement was never executed and the second payment was not received within the specified 18 months. Then, in December 2018, ANZ’s solicitors wrote to CDL about the ANZ Debt, reminding CDL that the facilities “remain long overdue” and that what had been agreed, including the obligation to make the second payment, “was an important condition of ANZ agreeing to redocument [CDL’s] facilities and forbearing from taking any action”. The letter recorded that ANZ reserved its position under the expired 2012 Facility Agreement documentation.
No further activity between ANZ and CDL stands out for mention until March 2021 when CDL proposed meditation. ANZ declined to participate. In August 2021, CDL, Mr Garnham and a related entity commenced proceedings in the High Court against ANZ in relation to the 2012 Facility Agreement. The claim was struck out primarily on limitation grounds, with Churchman J finding that the draft new facility was never executed and CDL was liable still under the 2012 Facility Agreement upon its expiry in July 2014.[8] In a subsequent costs decision, the Judge awarded indemnity costs against CDL.[9]
Application to MPI for prohibition certificate
[8]Criffel Deer Ltd v ANZ Bank New ZealandLtd [2022] NZHC 1851, [2022] NZCCLR 8 [strike‑out judgment of Churchman J] at [30] and [52].
[9]Criffel Deer Ltd v ANZ Bank New Zealand Ltd [2022] NZHC 2418 [costs judgment of Churchman J] at [30].
On 2 November 2022, ANZ set about terminating the banking relationship with CDL, giving them until 30 January 2023 to either refinance or face receivership. In response, CDL requested mediation under the FMDA on 7 November 2022. ANZ refused, via letter dated 24 November 2022, stating that it was “neither obliged to nor inclined” to enter mediation with CDL because the FDMA did not apply to the ANZ Debt. CDL maintained its position that the FDMA was applicable.
CDL applied to MPI for a prohibition certificate under the FDMA on 16 January 2023 — outside the 10-working day timeframe for doing so.[10] If granted, the prohibition certificate would have the effect that ANZ could not enforce the ANZ Debt without first engaging in mediation under the FDMA, or until the certificate was no longer in force.[11]
[10]Farm Debt Mediation Act, s 36(1). An application for a prohibition certificate on the ground that a party declined to mediate must be applied for within 10 working days after the grounds arise. The date on which CDL was required to make an application was 8 December 2023.
[11]Section 11(2). A prohibition certificate remains in force for six months for the date of issue: see s 42(1)(c).
In any event, the application was declined by MPI on 31 January 2023. The reason given for this decision was that enforcement action had been taken in relation to the ANZ Debt prior to the commencement of the FDMA. On that basis, MPI was satisfied that ANZ had provided “good reason” to decline the mediation request in accordance with s 18(1) of the FDMA.
CDL then sought an administrative review of that decision on 14 February 2023, describing the decision to reject the application as “flawed”.[12] ANZ gave a response, via a letter to MPI dated 3 March 2023, in which they raised additional grounds for refusal. MPI accepts that a copy of that letter was not provided to CDL and as a result, CDL was not given an opportunity to respond to the additional grounds raised by ANZ.
[12]Section 50(1)(a).
The application for review was referred to Mr Nick Story, Director of Rural Communities and Farming Support. In an internal email, he identified the following grounds for confirming the decision to decline the application for prohibition certificate:
· that enforcement action commenced 6 years prior to the [FDMA]
· the lending agreement was for a commercial property and not for the purpose of primary production (the debt wasn’t incurred on behalf of the farm)
· is outside of the timeframe prescribed in [s 36 of the FDMA s]
· has been noted that the farming entity is under a separate liquidation
· and a fair and reasonable extension process has been followed to ensure thorough assessment of the grounds for the application
This decision was communicated to CDL and ANZ by letter dated 16 June 2023. In that letter, the following reasons for the decision were given:
· The application for a Prohibition Certificate was outside of the timeframe prescribed in the Farm Debt Mediation Act 2019 (section 36).
· The debt was not incurred, solely or principally for the purpose of conducting a primary production business or related activities as described in the Farm Debt Mediation Act 2019 (section 6).
· Enforcement action commenced prior to the commencement of the Farm Debt Mediation Act 2019 (schedule 1, part 1, section 2).
Following that determination, CDL was placed into receivership. The receivership concluded on 8 August 2023 when CDL refinanced and the ANZ Debt was repaid.
The statutory scheme
The FDMA came into force in 2020. Its purpose is:[13]
… to provide parties to farm debt with the opportunity to use mediation to reach an agreement on the present arrangements and future conduct of financial relations between them before an enforcement action is taken in relation to farm property.
[13]Section 3.
As s 4 states, the FDMA “requires parties to a farm debt to engage in mediation before the creditor can take an enforcement action in relation to farm property”.
Farm debt is defined in the FDMA as:[14]
… a debt incurred by a farmer (whether as principal debtor or guarantor) that,—
(a)at the time it is incurred, is incurred solely or principally for the purpose of conducting a primary production business or any related activities; and
(b)is secured wholly or partly by a security interest in farm property (whether granted by the farmer or a guarantor)
[14]Section 6 definition of “farm debt”.
An enforcement action, defined under s 10:
… in relation to a security interest in farm property,—
(a)means an action that is taken to enforce a security interest in farm property following a default; and
(b) includes—
…
(iii)serving a notice under section 119 or 128 of the Property Law Act 2007; …
Of particular relevance, s 11 of the FDMA states that:
(1)A creditor must not take an enforcement action in relation to a security interest in farm property unless an enforcement certificate is in force in respect of the relevant farm debt.
(2)A creditor must not take an enforcement action in relation to a security interest in farm property if there is a prohibition certificate in force in respect of the relevant farm debt.
…
The FDMA contains the following transitional provision:[15]
Section 11 does not apply to an enforcement action (the action) if—
(a)the action was commenced or was in progress before the commencement of that section; or
(b)the action is linked to another enforcement action, and that other enforcement action was commenced or was in progress before the commencement of that section
[15]Schedule 1 cl 2.
A farmer who owes a farm debt may request mediation in accordance with the FDMA in relation to the farm debt at any time, unless there is an enforcement certificate in force in respect of that debt.[16] A creditor may request meditation at any time after default of farm debt, but they may not request mediation if there is a prohibition certificate in force in respect of that debt.[17] A party must reply to a mediation request within 20 days.[18] The process for mediation is laid out in sub-pt 3.
[16]Section 15.
[17]Section 16.
[18]Section 17.
Sub-part 4 deals with enforcement and prohibition certificates, which are issued by MPI. An enforcement certificate will only be issued if the farmer refuses to participate in mediation, or where the creditor participated in the mediation process in good faith but no resolution was reached — including if the creditor had good reason to decline to mediate.[19] A farmer who owes a farm debt may apply for a prohibition certificate if the creditor declined to mediate or the creditor did not participate in the mediation process in good faith.[20] An application for a certificate on the grounds that a party declined to mediate must be made within 10 days after the grounds arise.[21] MPI may extend this period for as long as necessary if they consider an extension is reasonably required in the circumstances.[22] Notice of the application must be given to the other party by MPI and must state the grounds on which the application is made.[23]
[19]Section 34.
[20]Section 35.
[21]Section 36(1).
[22]Section 36(3).
[23]Section 37.
An enforcement certificate must be issued if the farmer is in default of the farm debt, there is no prohibition certificate in force in respect of that debt and MPI is satisfied the grounds are established.[24] Similarly, MPI must issue a prohibition certificate if there is no enforcement certificate in force in respect of the farm debt and MPI is satisfied that the grounds for issuing a prohibition certificate are established.[25] This process does not apply to enforcement action that was commenced or was in progress before the commencement of s 11 of the FMDA, which came into force on 1 February 2020.[26]
[24]Section 38.
[25]Section 39.
[26]Schedule 1 cl 2(a) and section 2(1).
A refusal to issue a prohibition certificate may be administratively reviewed.[27] The application for review must be made within 10 working days on which notice of the decision is given, and the other party must be notified and must be afforded an opportunity to file submissions.[28] The application acts as a stay.[29] MPI must review the legal basis of, and any assessment or other matters relevant to, the decision under review.[30] The review must be determined on the papers unless MPI considers it is not appropriate to do so.[31] The determination must be made within 20 working days from receipt of the application unless extended by MPI.[32] MPI must either confirm the decision or withdraw the decision and, if appropriate, substitute a new decision in its place.[33] A review decision may only be appealed to the High Court on a question of law.[34]
High Court appeal
[27]Section 50(1)(a).
[28]Sections 50(2) and 52.
[29]Section 56.
[30]Section 53(1).
[31]Section 53(2).
[32]Section 54(1) and (3).
[33]Section 54(2).
[34]Section 57.
CDL’s appeal to the High Court raised the following key issues:[35]
(a)Was the appeal moot?
(b)Did the FDMA’s transitional provisions apply to prevent CDL from relying on the requirement to mediate on the basis that ANZ had already started enforcement action prior to the commencement of the FDMA?
(c)Was the ANZ Debt a “farm debt” for the purposes of the FDMA?
(d)Did CDL apply for a prohibition certificate out of time?
(e)Was there a procedural deficiency in the MPI’s administrative review process by failing to provide ANZ’s written submissions to CDL before making its decision?
[35]Judgment under appeal, above n 4, at [64]–[65].
In addition, there were two ancillary issues:[36]
(a)Should two affidavits filed by MPI have been admitted as fresh evidence?
(b)Were the strike-out and costs decisions of Churchman J inadmissible by virtue of s 50 of the Evidence Act 2006?[37]
[36]At [66].
[37]Evidence Act 2006, s 50(1).
On 19 April 2024, Grau J dismissed CDL’s appeal. The Judge found (in summary):
(a)The affidavits were filed too late and, in any event, were not crucial to the resolution of the proceedings.[38]
(b)The decisions of Churchman J were admissible because the MPI process was not a civil proceeding and therefore not subject to s 50 of the Evidence Act. In any event, CDL was estopped from denying key factual findings relating to the relationship between CDL and the ANZ. In addition, the findings were clearly relevant to MPI’s decision and to the High Court appeal.[39]
(c)The appeal was moot because the issues raised were now academic and did not raise matters of genuine public importance.[40] However, given the natural justice complaint, it was appropriate to exercise the discretion of the Court to determine the appeal.[41]
(d)ANZ commenced an enforcement action by way of serving a PLA notice in respect of a 2012 Facility Agreement in 2016 and contrary to CDL’s claim, there was no subsequent new loan agreement.[42] The transitional provisions were clear — the FDMA did not apply to enforcement actions commenced or in progress before the commencement of that Act. Given this, ANZ was not required to meet mediation requirements under the FDMA in respect of the ANZ Debt.[43]
(e)The ANZ Debt, at the time it was incurred, was not farm debt because it was not incurred for the sole or principal purpose of conducting a primary production business, but rather it was incurred to enable the purchase of commercial property in Wellington.[44]
(f)Even though the application was filed outside the 10-working day timeframe for filing, MPI was incorrect to have regard to that fact in its determination, given that CDL was entitled to think that MPI had accepted the application for consideration.[45]
(g)Dealing with the alleged procedural unfairness, MPI was only obliged to invite ANZ to submit whereas the applicant had no statutory right of reply;[46] the additional grounds raised by the ANZ were well known to CDL so there was no material prejudice to it;[47] and there is no evidence of any apparent bias or other improper purpose in MPI’s decision‑making.[48]
Issues on appeal
[38]Judgment under appeal, above n 4, at [73].
[39]At [81]–[84]. The Judge noted at [85] that, in any case, she had considered the evidence to “come to [her] own conclusion as to the relationship between the ANZ and [CDL]”.
[40]At [107]–[108].
[41]At [109]–[110].
[42]At [114] and [122].
[43]At [122] and [127].
[44]At [132] and [137].
[45]At [140]–[141].
[46] At [147].
[47]At [150].
[48]At [151]–[152].
The parties agreed that the issues to be determined on this appeal were:
(a)Is the appeal moot and if it is, should this Court nevertheless exercise its discretion to hear it?[49]
(b)Did the transitional provisions of the FDMA apply so as to preclude MPI granting CDL a prohibition certificate?
(c)Was the ANZ Debt owed by CDL to the ANZ a “farm debt” as defined in s 6 of the FDMA?
(d)Did MPI undertake its role in accordance with the FDMA and its purpose?
(e)Does any procedural defect in MPI’s consideration of the application for a prohibition certificate or subsequent administrative review provide an independent basis for allowing the appeal?
(f)Did s 50 of the Evidence Act preclude either MPI or the High Court from considering or relying on the findings of Churchman J in earlier proceedings between CDL and the ANZ?
(g)Should the Court have admitted two affidavits from officials responding to CDL’s allegations of procedural impropriety? If not, did the High Court rely on those affidavits?
[49]CDL did not agree that this Court could address whether the High Court was correct to determine the matter as there was no cross-appeal on this point. We address that contention below.
For reasons we will shortly explain, we advised counsel at the hearing that we considered the appeal to be moot and that, in the exercise of our discretion on a moot appeal, we would hear from them orally only on the issue of whether the ANZ Debt was a “farm debt”. This was on the basis that this might raise a question of broader public interest. However, again for reasons we explain below, we have concluded that this issue is not solely a question of law, and we do not have the full facts on which to determine the question, nor is one of the critical parties (ANZ) before us. It is not therefore appropriate to issue what would be an advisory opinion on an incomplete basis in these circumstances.
The appeal is moot
We agree with the High Court that the appeal is moot because there is now nothing to mediate under the FDMA. There is no debt to enforce and there is no meaningful relief that can now be granted. CDL nevertheless submitted that the High Court was wrong because the Judge failed to take into consideration the fact that the right to appeal from a MPI decision would be rendered nugatory if the taking of immediate enforcement action by the relevant creditor caused the appeal to become moot. In oral argument Mr Sullivan, counsel for CDL, developed this point by emphasising that ANZ triggered receivership on 21 June 2023, only three working days after notification of the MPI review decision.
We are not satisfied that this point should dissuade us from finding that the appeal is moot. First, ANZ declined to enter into mediation in November 2022, several months prior to commencing the receivership. This is not a case where CDL was caught by surprise, nor where ANZ acted in a precipitously underhanded way. Second, Mr Garnham is clearly a sophisticated commercial businessman, who is well able to protect his commercial interests. Third, the appeal was not rendered nugatory by the receivership. An application for stay of the review decision and or injunctive relief could have been made to preserve the status quo. No applications of this kind were made and, in our view, it is now too late to complain about that fact.[50]
Residual discretion to hear moot appeal
[50]We acknowledge that this was a difficult time for Mr Garnham as his wife was very ill and nothing we say here is meant to be a criticism of the decisions made at the time. But it is necessary to note that the fact of appointing the receiver did not automatically render the appeal moot.
We turn then to the issue of the exercise of this Court’s residual discretion to hear the appeal. CDL submitted that we ought not to revisit this issue as there was no cross‑appeal by MPI on this aspect of the decision.[51] While that may be so, this Court is in any event governed by the principles applying to all moot appeals. It must exercise its own discretion as to whether to entertain a moot appeal in accordance with those principles — more so, given that this is a second appeal and appellate judicial resources are limited.
[51]We also note that CDL challenged the finding of mootness in its appeal.
As to the applicable principles, we refer to the summary of the principles applying to moot appeals set out by this Court in Thornley v Ford:[52]
[45] The traditional position was that an appeal would not be heard “where the substratum of the … litigation between the parties ha[d] gone and there [was] no matter remaining in actual controversy and requiring decision”. However, whether to entertain a moot appeal is now a matter of discretion rather than jurisdiction. In exercising this discretion, the courts generally do not decide appeals where the decision will have no practical effect on the rights of the parties before the court in relation to what was in issue between them in lower courts. This policy of restraint reflects the adversarial nature of the appellate process, the need for economy in the use of the limited resources of appellate courts and that advisory opinions are generally not within the court’s proper role in the system of government.
[46] As to when the discretion should be exercised to hear a moot appeal, in Baker v Hodder the Supreme Court said:
[33] … It is not possible to state a “test” governing the exercise of the discretion, or to give a comprehensive statement of the circumstances in which it might properly be exercised. All that can be said is that, in light of the considerations underlying the policy of restraint, a decision to hear a moot appeal should be made only in exceptional circumstances. These might be found in the circumstances of the particular case (for example, serious procedural unfairness at the first hearing) or the broader public interest (for example, where an important legal point is raised).
[47] In Baker v Hodder, shareholders were in dispute over whether to sell a farm which was the primary asset of the company. The shareholders wishing to sell the farm successfully obtained from the High Court relief under s 174 of the Companies Act 1993 requiring the farm to be sold. This Court declined to hear the appeal on the basis that the appeal was moot because by then the farm had been sold. The Supreme Court allowed the appeal.
[48] In exercising its discretion to hear the appeal, the Supreme Court considered that this Court should have determined the appeal because: there remained a real dispute about costs; there were issues of fairness arising from the procedure adopted in the High Court; there was a proper concern as to whether the decision could affect the ability of the party against whom the relief was ordered to pursue a future claim against the other shareholders who had sought that relief; - co_footnote_1577332~FULLTEXT~FTNT.!34 there were important company law issues at stake that could affect future transactions; as the parties were ready to argue the appeal, the Judges would have already read the written submissions, and the appeal was on a confined point, this Court's resources would not have been stretched; and there was nothing about the case that gave rise to any issue of sensitivity in relation to the Court's proper role.
[52]Thornley v Ford [2024] NZCA 154, (2024) 25 NZCPR 422, citing Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 (footnotes omitted).
While we heard from the parties on the subject of the meaning of “farm debt”, we ultimately decided, in accordance with the principles discussed in Baker v Hodder, that there were no exceptional circumstances for hearing the moot appeal even in that regard. As we explain below, none of the potentially dispositive issues of appeal involve matters of broader public interest.
There were three potentially dispositive issues: whether the transitional provisions relating to pre-FDMA enforcement action apply; whether the ANZ Debt was a “farm debt”; and whether there has been a material breach of natural justice in the failure by MPI to provide ANZ’s further submissions to CDL and then allegedly rote adopting those submissions. The other issues are ancillary matters only.
The first dispositive issue turned on whether the alleged financing arrangements that occurred in 2016 amounted to a new debt (and if so the transitional provisions relating to enforcement proceedings do not apply):[53]
… a[n] … agreement was reached with ANZ in December 2016, evidenced by new 3 year facility for [CDL] set out in the exchange of emails, payment of $1.5 million, ANZ discharging covenants, setting up new accounts, [CDL] paying interest at a new rate for the 3 years, ANZ making demand for $1.5M.
[53]A useful summary provided by Mr Sullivan in oral argument.
This issue was fact-specific, canvassed fully in the High Court and of interest only to the immediate parties. The High Court exercised its discretion to consider this issue because of the alleged breach of natural justice. With the High Court having done so for that purpose, the natural justice issue has been remedied. On the face of it, there is nothing to indicate that the High Court erred. There was no formal executed new agreement and ANZ’s s 119 PLA notice is a qualifying form of enforcement action under s 10 of the FDMA. We see no reason to explore this issue further.
The second dispositive issue went to the meaning of “farm debt”. That is an issue of potentially wider public interest. For that reason, we explored this issue at length with counsel. The fact that CDL was a “farmer” under the FDMA was not in dispute between the parties.[54] The key statutory criterion was therefore whether, at the time the ANZ Debt was incurred, that is at the time of the 2012 Facility Agreement, it was incurred “solely or principally for the purpose of conducting a primary production business or any related activities”.[55]
[54]Farm Debt Mediation Act, s 6 definition of “farmer”.
[55]Section 6 definition of “farm debt”.
Mr Sullivan maintained that the ANZ Debt was a separate facility provided to CDL for the specific purpose of refinancing the existing Rabobank Debt. The lending was thus simply a continuance of the original Rabobank Debt which had been incurred to purchase the farm. On that basis, taking a farmer-centred purposive approach to the FDMA, the ANZ Debt was therefore a “farm debt”.
Mr Orpin-Dowell, however, contended that the entire purpose of the ANZ lending to CDL was to enable Mr Garnham’s interests to complete the purchase of the ASB Tower. Put simply, that lending and associated security over the farm formed part of a package of lending established to enable the purchase of the ASB Tower.
Both positions are fact dependent and require interrogation of the evidence in order to resolve what was agreed and the structure and purpose of the lending. Problematically also, a final agreement recording the precise basis of the original 2012 Facility Agreement is not before us, ANZ is not a party to this appeal and there is no industry evidence of any kind addressing whether the loan facilities are “separate” facilities or subparts of an overarching master facility.
Given this, much like the first issue, we consider that the resolution of the “farm debt” issue is fact dependent and therefore of value to the parties only. To the extent there is any wider public interest, the resolution of this issue would inevitably stem from an unsatisfactory factual basis given the incomplete state of the evidence. This is doubly problematic because our findings would then amount to an advisory opinion as to the nature and type of lending based on unclear facts that could then have wider consequences for lending practice and policy.[56]
[56]Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721 at [18].
The final dispositive issue related to the alleged breach of natural justice and drove off two key claims. The first was based on a procedural error on the part of MPI in failing to provide CDL with ANZ’s submissions. The second was based on an allegation that MPI “rubber stamped” ANZ’s position, as set out in their submissions, and accordingly, there was apparent bias. Unlike Baker v Hodder, where procedural fairness in the High Court was in issue,[57] the procedural error was admitted and already subject to a finding of the High Court.[58] That claim has therefore already been addressed.[59] Little will be served by saying more about it. There is therefore no point in examining that issue further. Finally, we see nothing in the second claim of apparent bias arising from the alleged rubber stamping. It is entirely speculative.
[57]Baker v Hodder, above n 52, at [44].
[58]Judgment under appeal, above n 4, at [148] and [152].
[59]Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [109].
Given the foregoing, we see no merit in resolving fact-specific issues or otherwise providing what would effectively be an advisory opinion, with wider potential consequences for lending, based on an unsatisfactory factual basis. Nor did CDL identify any claim that might be better advanced by a determination of the merits by us. Mr Sullivan referred to an as-yet unformulated potential claim against MPI, but he could not help us with what the content of that claim might be. That is not a sound basis to advance a moot appeal.
We make one final but important point. Only appeals on points of law are available from an administrative review decision under the FDMA.[60] Ordinarily to show an error of law, it will be necessary for the appellant to show that the fact-finder has misdirected itself on a principle of law in some material way or the ultimate conclusion is so insupportable as to amount to an error of law.[61]
[60]Farm Debt Mediation Act, s 57. We note for completeness, there is no express right of appeal under the Farm Debt mediation Act to the Court of Appeal. Accordingly, there may be an issue as to this Court’s jurisdiction to hear the appeal. Our tentative view is the right of first appeal from a decision of the High Court at s 56(1)(a) of the Senior Courts Act 2016 is engaged. However, as there was no objection to, or argument about appellate jurisdiction, we have not determined this issue preferring to leave that to a case where it is necessary to do so.
[61]Bryson v Three Foot Six [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[26].
As this Court in Chorus Ltd v Commerce Commission highlighted:[62]
[112] In the absence of a right of general appeal, it is not the role of the Court in an appeal on a question of law to undertake a broad reappraisal of the Commission's factual findings or the exercise of its evaluative judgments. Care should also be taken to avoid a technical and overly semantic analysis of the Commission's determination in an endeavour to create a question of law. In making factual findings it is for the Commission, and not the Court, to decide what weight should be given to the relevant evidence and what inferences, if any, should be drawn from the evidence. An inference must be logically drawn from proven facts and not be mere speculation or guesswork. At the same time … if the Commission has made a factual error that makes its application of the statutory provisions “unsupportable” it will have erred in law.
[62]Chorus Ltd v Commerce Commission [2014] NZCA 440 (footnote omitted).
As far as we can tell, the appeal, including before us, has instead been advanced as a general appeal against the factual findings made by the statutory reviewer. This is contrary to a legislative scheme clearly designed to achieve efficient disposition of FDMA applications. While the High Court was prepared to address the matter fully given the natural justice issues, we do not consider it is appropriate for this Court to also review factual findings on an appeal on a question of law in a moot appeal.
Result
The appeal is dismissed.
The appellant must pay costs to the respondent for a standard appeal on a band A basis, with usual disbursements.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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