Hojsgaard v Chief Executive of Land Information New Zealand
[2019] NZCA 257
•26 June 2019 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA223/2018 CA520/2018 [2019] NZCA 257 |
| BETWEEN | PETER HOJSGAARD |
| AND | CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND |
| Court: | French, Clifford and Gilbert JJ |
Counsel: | P H Thorp for Appellant |
Judgment: | 26 June 2019 at 11 am |
JUDGMENT OF THE COURT
The application for recall is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
On 2 April 2019, this Court allowed in part Mr Hojsgaard’s appeal against a decision of the High Court.[1]
[1]Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84 [Court of Appeal decision].
He has now applied for our judgment to be recalled on the grounds it contains an error.
Background
The appeal concerned a cadastral survey of land neighbouring Mr Hojsgaard’s property. The survey had been undertaken by the second respondent Mr Brill. Mr Brill’s survey was approved by the Chief Executive of Land Information New Zealand for integration into the cadastre under the Cadastral Survey Act 2002. Mr Hojsgaard contended the boundaries depicted in Mr Brill’s survey did not allow for the location of an historic stream which he claimed used to run along his western boundary and that this omission adversely affected him.
Mr Hojsgaard then commissioned his own survey (the Thomson survey) which in his view did accurately depict the boundaries and the location of the historic stream. After unsuccessfully requesting the Surveyor-General to correct the Brill survey, Mr Hojsgaard issued proceedings in the High Court. He sought judicial review of the Chief Executive’s decision approving the Brill survey and also declarations to the effect that the Thomson survey was correct and should replace the Brill survey in the cadastre.
The High Court Judge found that in deciding whether to approve the Brill survey, the Chief Executive had failed to consider a relevant mandatory consideration and directed him to reconsider his decision.[2] The Judge was not however prepared to quash the Chief Executive’s approval decision.[3] He was also not prepared to grant any of the declarations sought by Mr Hojsgaard.
[2]Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750, [2018] 3 NZLR 99 at [97], [105] and [110].
[3]At [106]–[108].
On appeal, we held the Judge should have quashed the Chief Executive’s decision but in all other respects upheld the Judge’s decision. We made a formal order quashing the decision and directing the Chief Executive to re-consider the correctness of Mr Brill’s survey in light of all the evidence now available to the Chief Executive.[4]
The application for recall
[4]Court of Appeal decision, above n 1, at [111]–[112].
The alleged error is said to have occurred in a section of the judgment which discussed Mr Hojsgaard’s contention the Judge had been wrong to refuse to make any declaration based on the respective merits of the Brill and Thomson surveys. We found that it was not possible on the material before the Judge for him to have responsibly made definitive findings. We then addressed a further argument advanced on behalf of Mr Hojsgaard that, although it might not be possible on the evidence to say one survey was right and the other wrong, resolution of the dispute between the surveyors was still possible by simply applying the presumption of correctness.[5]
[5]At [16]–[17]; and Chief Executive Land Information New Zealand v Te Whanau O Rangiwhakaahu Hapu Charitable Trust [2013] NZCA 33, [2013] NZAR 539 at [91] and [107].
The presumption of correctness means that once approved and integrated into the cadastre, a survey is presumed to be correct and in the event of a conflict between it and a later survey, compelling evidence is required before a decision maker can conclude the earlier plan is in error and should be replaced. A very high standard of satisfaction as to the existence of error is required.
Mr Hojsgaard submitted that the Thomson survey was consistent with an earlier 1991 survey of his own property which had been approved. The 1991 survey was therefore protected by the presumption of correctness. There was insufficient evidence to show it was wrong and therefore insufficient evidence to show the Thomson survey was wrong.[6]
[6]Court of Appeal decision, above n 1, at [84].
We rejected that contention on two grounds. First, that the interpretation of the 1991 survey was not clear cut, and therefore it was debatable whether the Thomson survey was in fact faithful to the 1991 survey as Mr Hojsgaard assumed.[7] Secondly, the argument also assumed that a hydro parcel was the inevitable consequence of establishing that the stream formerly ran along his western boundary.[8] And that, we held, was not the case because, as was common ground, in order to sustain a hydro‑parcel Mr Hosjgaard must still establish some sort of proprietary right.[9] We then traversed the difficulties with the various types of rights Mr Hojsgaard was claiming.
[7]At [86].
[8]At [87].
[9]At [88].
In the application for recall, Mr Hojsgaard claims we have misrepresented his position. In particular he contends it was not his position and therefore not common ground that he needed to establish any proprietary right. He says all he sought in his declaration and submissions was the correct determination of the southern and eastern boundary of the land surveyed by Mr Brill. Rights over or ownership of the alleged hydro-parcel were irrelevant to that determination. It is not something that needs to be resolved in the determination of the underlying survey dispute.
Mr Hojsgaard says further that he is concerned that unless corrected and clarified as he requests, the judgment may be interpreted otherwise and impact on the Chief Executive’s reconsideration of his approval decision. The Chief Executive may consider she is unable to apply the presumption of correctness to determine the outcome unless Mr Hojsgaard can establish a proprietary right concerning the alleged hydro-parcel.
Mr Brill and the Chief Executive both abide the Court’s decision on the application for recall.
Our view
We do not accept there are grounds to recall the judgment. In our view, the impugned paragraphs accurately capture the position as it was advanced by Mr Hojsgaard’s counsel at trial and in this Court.
As mentioned, the declarations sought by Mr Hojsgaard included a declaration that the location and area of the hydro-parcel in the Thomson survey was correct and that only a survey consistent with the Thomson survey should be approved. Further, his whole justification for invoking the Court’s declaratory jurisdiction was that the historic location of the stream founded some sort of proprietary right in him. On appeal, his counsel told us we were not required to determine the extent of those rights — which we did not do — but it was a recurring theme that the Brill survey had dispossessed him of his riparian “rights”, deprived his land of its status as waterfront and left it landlocked. His land was said to have been dispossessed of rights in whatever form.
In any event, we also do not accept the impugned paragraphs have the potential to unfairly prejudice Mr Hojsgaard. As the Chief Executive has herself reaffirmed in her response to the recall application, what she is obliged to do is to undertake the reconsideration of the Brill survey in accordance with the requirements of the Cadastral Survey Act and having regard to all the evidence now available.
Result
The application for recall is declined.
Solicitors:
Glaister Ennor, Auckland for Appellant
Crown Law Office, Wellington for First Respondent
Gilbert Walker, Auckland for Second Respondent
0
2
0