Flath v Minister for Land Information - [2024] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-797

[2024] NZHC 544

IN THE MATTER of a claim for compensation under Part 5 of the Public Works Act 1981

IN THE MATTER

of an appeal under s 26 of the Land Valuation Proceedings Act 1948

BETWEEN

TORBIS KATHARINGA FLATH,

STEPHEN BRENT MACKAY AND SAS CORPORATE TRUSTEES LIMITED

Appellants

AND

THE MINISTER FOR LAND INFORMATION

Respondent

Hearing: On the Papers

Appearances:

C M Stevens and C M McCracken for Appellants D J Watson and G Allan for Respondent

Judgment:

14 March 2024

JUDGMENT OF GRICE J

(Costs)

[1]The appellants and the respondent each seek costs on this matter.

[2] The appeal relates to a decision of this Court constituted under s 3 of the Land Valuation Proceedings Act 1948, on an appeal from the Land Valuation Tribunal.1 The hearing time for the appeal was set for two days but took two and a half days. We also took an additional half day to inspect the property.

1 Flath v The Minister for Land Information [2024] NZHC 36 (the Decision).

FLATH v THE MINISTER FOR LAND INFORMATION [2024] NZHC 544 [14 March 2024]

[3] The appellant points to the fact that the appeal was allowed and says the successful party is entitled to costs. The respondent says the appeal was allowed but the figure assessed for compensation by the Tribunal was substantially confirmed as correct and adjusted only for minor arithmetical errors.

Background

[4] This case was an appeal against the decision of the Land Valuation Tribunal concerning assessment of value of land taken and injurious affection compensation for a public work, the Kāpiti Coast Mackays to Peka Peka Expressway. The property involved was 1.084 ha (before the land take) with a residential home at the front and vacant land at the rear lower part of the property. From that, 1,917 m² of land was taken.2 The Tribunal assessed the value of the land taken and compensation payable at $38,000, being the value of the land taken together with compensation for injurious affection of $32,700.3 The Crown had agreed in 2016 to pay compensation of approximately $79,000 to the appellants in advance. The date for assessing compensation was 18 July 2013.4 In reliance on the evidence of their valuer, the appellants had claimed in the Tribunal a sum for compensation of $350,000, being
$210,000 for the land take (reduced by the appellants in the course of the Tribunal hearing to $195,000) and $140,000 for injurious affection. With the adjustments, the appellant’s total claim was $350,000.

[5] The two Crown valuers had valued the land using a before/after valuation methodology, assessing the compensation at $36,000 and $40,000 respectively.

[6] We found that the Tribunal’s approach to the valuation of the land, using a “willing buyer/willing seller” methodology, was correct in the circumstances.5

[7] The appellant raised numerous grounds on appeal. Most of these were dismissed apart from the allegation that the Tribunal failed…

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: [2024] NZHC 544
Decision Date: 14 March 2024

CaseChat Overview and Summary

The High Court of New Zealand was presented with an appeal by Torbis Katharinaga Flath, Stephen Brent Mackay, and SAS Corporate Trustees Limited against the Minister for Land Information. The appeal concerned the valuation of land taken and compensation for injurious affection related to the Kāpiti Coast Mackays to Peka Peka Expressway. The Land Valuation Tribunal had assessed the value of the land taken and compensation payable at $38,000. The appellants had claimed compensation of $350,000, which was significantly higher than the Tribunal's assessment. The primary legal issue before the court was whether the Tribunal's valuation methodology and the reasons provided for its assessment were adequate and correct.

The court found that the Tribunal's approach to valuation, using a "willing buyer/willing seller" methodology, was correct. However, the Tribunal was found to have failed to provide adequate reasons for its valuation, particularly concerning how it carried out its assessment. The court allowed the appeal on this basis and adjusted the compensation figure by correcting an arithmetical error, resulting in a $1,000 increase in the compensation amount. The court dismissed other grounds of appeal, including claims for fencing costs and relocation interest, as they were outside the scope of the appeal.

The court ruled that the appellants were the successful party in the appeal due to the Tribunal's inadequate reasons for its valuation. However, the court also noted that the appeal was unnecessarily prolonged by numerous arguments that lacked merit, which significantly increased the respondent's costs. Consequently, the court reduced the costs award to the appellants by 20% to reflect this. The court also considered the Crown's argument that the Advance Compensation Agreement should influence the costs decision but concluded that it was not a relevant factor in this context.

The final order of the court was that costs were awarded in favour of the appellants on a 2B basis, reduced by 20%, while the disbursements claimed remained unaffected.

Orders