Houston v Attorney-General - [2015] NZHC 2298

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2008-485-002689 [2015] NZHC 2298

BETWEEN
MATILDA ISABELLE HOUSTON

Plaintiff

AND

THE ATTORNEY-GENERAL First Defendant

THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND Second Defendant

NEW ZEALAND TRANSPORT AGENCY

Third Defendant

CIV-2011-485-000633

BETWEEN BRADLEY S BUILDINGS LIMITED (IN LIQUIDATION)
Plaintiff

ANDTHE ATTORNEY-GENERAL First Defendant

THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND Second Defendant
NEW ZEALAND TRANSPORT AGENCY
Third Defendant

CIV-2011-485-000701

BETWEEN HOWARD CHRISTOPHER SMITH Plaintiff

ANDTHE ATTORNEY-GENERAL First Defendant

THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND

HOUSTON v ATTORNEY-GENERAL [2015] NZHC 2298 [22 September 2015]

Second Defendant

NEW ZEALAND TRANSPORT AGENCY
Third Defendant

Hearing: Dealt with on the papers

Judgment:

22 September 2015

JUDGMENT OF GENDALL J (As to costs)

[1] The defendants apply for costs following the discontinuance of these proceedings by the plaintiffs. The plaintiffs say that they should not have to pay costs, or at least should only have to pay costs on a greatly reduced basis because the defendants were guilty of extensive delay in disclosing documents to the plaintiffs which they say should have been disclosed much earlier in the case. The plaintiffs say that if they had received those documents when they should have been disclosed they would have appreciated then that their claims could not succeed.

[2] These files and the submissions from counsel have only recently been referred from Wellington to me in Christchurch (where I now sit) for consideration of this costs issue. I regret therefore the delay in this costs decision being provided to the parties.

[3] In their various proceedings, the plaintiffs sought declaratory relief in respect of the taking of certain parcels of land in Wellington (the subject lands) under the Public Works Act 1928. While the subject lands were taken by the Crown on various dates between 1965 and 1971 “for better utilisation”, the defendants acknowledged in their statements of defence that the principal purpose of the acquisitions was in connection with the construction of a motorway from Ngauranga to the Basin Reserve (the project).

[4] In their consolidated statement of claim the plaintiffs contended that the third defendant (or its predecessor Transit New Zealand) (Transit) knew as early as July
1984 (or if not, by no later than June 2003) that no part of the subject lands, which had been acquired from them or from parties to whom they are successors, would be required for the project. In those circumstances, they allege that the second defendant was obliged by s 40(2) of the Public Works Act 1981 (the Act) to offer to sell the land back to the plaintiffs. They asked for declarations that the defendants were required to offer the land for sale to them at prices to be fixed as at one of a number of alternative dates (the date adopted would depend on when the Court considered an offer should have been made to sell the land to the plaintiffs ).

[5] There were initially three separate proceedings. Proceeding CIV-2008-485-

2689 (the Houston…

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 Houston v Attorney-General

Details

AGLC: Houston v Attorney-General [2015] NZHC 2298
Case: [2015] NZHC 2298
Decision Date: 22 September 2015

CaseChat Overview and Summary

The plaintiffs, Matilda Isabelle Houston, Bradley S Buildings Limited (in liquidation), and Howard Christopher Smith, sought declaratory relief in relation to certain parcels of land in Wellington taken under the Public Works Act 1928. The defendants were the Attorney-General, the Chief Executive of Land Information New Zealand, and the New Zealand Transport Agency. The plaintiffs alleged that the defendants knew that the subject lands would not be required for a motorway project, and that the second defendant was obliged under section 40(2) of the Public Works Act 1981 to offer to sell the land back to the plaintiffs. The defendants acknowledged that the principal purpose of the acquisitions was in connection with the motorway project. The plaintiffs sought declarations that the defendants were required to offer the land for sale to them at prices to be fixed as at one of a number of alternative dates. The consolidated proceedings were discontinued by the plaintiffs on 8 November 2011. The defendants applied for costs following the discontinuance of the proceedings by the plaintiffs. The defendants sought total costs and disbursements for the first and second defendants of $19, 255.51 and for the third defendant of $30,654.88. The plaintiffs contended that they should not have to pay costs, or at least should only have to pay costs on a greatly reduced basis because the defendants were guilty of extensive delay in disclosing documents to the plaintiffs which they say should have been disclosed much earlier in the case. The plaintiffs say that if they had received those documents when they should have been disclosed they would have appreciated then that their claims could not succeed. The court found that the defendants were entitled to an award of costs and disbursements, given the decision of the plaintiffs to discontinue their proceedings. The court found that the plaintiffs should meet the total reasonable scale costs of the defendants, less an allowance which was set at 30% as an appropriate figure for the discovery issues mentioned. The court ordered that the plaintiffs pay to the first and second defendants costs totalling $12,611.20 together with disbursements totalling $1239.51, and they pay to the third defendant, costs totalling $18,886 together with disbursements totalling $6034.88.

Orders