KI Commercial Limited v Christchurch City Council

[2017] NZHC 28

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-001004 [2017] NZHC 28

BETWEEN

KI COMMERCIAL LIMITED

Appellant

AND

CHRISTCHURCH CITY COUNCIL Respondent

Hearing:	20 January 2017 via telephone conference
Appearances:	J E Hodder QC & D O Pedley for the Appellant S J Scott for the Respondent C E Robinson for the Independent Hearings Panel
Judgment:	20 January 2017

JUDGMENT OF NATION J

Background

[1]      On 14 October 2016, the appellant filed a notice of appeal against a decision of the Independent Hearings Panel (the panel) for the Christchurch Replacement District Plan (the replacement plan). That decision was dated 9 September 2016.

[2]      The appeal set out nine questions of law which were the subject of the appeal. A first case management conference was scheduled for 25 October 2016.  Counsel for the parties filed a joint memorandum.   In that memorandum, the respondent asked for an early hearing date of the appeal given the legislative time constraints the panel were under and the administrative pressure the respondent Council was under to make relevant parts of the replacement plan operative.  There was no objection to that request.

[3]      Counsel for the respondent also suggested that certain parts of the appeal did not raise genuine questions of law and sought a direction that any preliminary legal

KI COMMERCIAL LTD v CHRISTCHURCH CITY COUNCIL [2017] NZHC 28 [20 January 2017]

issues and applications which the Council might seek to pursue in respect of those matters be filed by 1 November 2016. There was no objection to that request.

[4]      On the basis of that memorandum, I issued a minute of 20 October 2016 directing the respondent to file a memorandum as to any preliminary legal issues and applications by 1 November 2016.  I allocated the earliest date then available of 22

February 2017 for the hearing of the appeal.  I again made timetabling directions as to the steps which had to be taken to ensure the appeal could be heard on that date. That included a direction that a common bundle be filed and served 20 working days prior to the hearing and the appellant’s submissions and a chronology be filed and served 15 working days prior to the hearing.

[5]      On 28 October 2016, counsel for the respondent asked for an extension of the deadline  for  filing  its  memorandum  on  preliminary  legal  issues  to  Tuesday  22

November 2016 submitting that, with the allocated hearing date, there would be no prejudice as a result of this.  I allowed the extension but with leave for the appellant to be heard as to this if required. The appellant took no steps in this regard.

[6]      On 16 December 2016, the appellant filed an application for an adjournment of the appeal fixture together with an affidavit from the appellant’s chief executive, Mr Paul Keung and a memorandum from counsel.

[7]      On 19 December 2016, counsel for the respondent set out in an email for the

Court a summary of the basis on which it opposed the adjournment request.

[8]      On 21 December 2016, a memorandum was filed by counsel for the panel recording their concern that an adjournment would further delay the relevant chapter of the replacement plan becoming operative.

[9]      On 17 January 2017 the parties were advised that I was prepared to make a decision on the request on the papers but that, if any of the parties wished to be heard, I would hear them through a telephone conference.

[10]     The appellant requested a telephone conference.  This conference occurred at

10.00 am on Friday 20 January 2017.  I thus heard from counsel for all parties.  I

also received a further affidavit sworn by Mr Keung on 18 January 2017.

The appellant’s position

[11]     The appellant seeks a delay in the hearing of the appeal essentially on the basis the company has been incapable of addressing appeal matters within the time available because of difficulties Mr Keung has faced as a result the Kaikoura earthquakes,   the   damage   to   the   appellant’s   residential,   corporate   and   rural investments in Kaikoura and also particular demands on Mr Keung over his father’s health and other family matters.  These particular difficulties were summarised in Mr Keung’s initial affidavit and further detailed in his affidavit of 18 January 2017.  Mr Keung has said he is the only person within the appellant company who has been directly involved with the events leading up to the current appeal.  He is the person responsible for discussing the issues for the company with the legal advisors.   He said it has not been possible for him to do so.

[12]     During  the  telephone  conference,  Mr  Hodder  highlighted  the  difficulties which Mr Keung faced and Mr Keung’s desire, consistent with his normal practice, to be personally involved in dealing with the appeal.

[13]     Mr  Hodder  submitted  that  an  adjournment  of  the  appeal  would  not significantly prejudice any party because the appeal related to a particular decision which was site-specific and thus affected only properties owned by the appellant.  He said the Council was already dealing with resource consent applications as if the replacement plan had been notified so that, while the continuation of the appeal was delaying the plan becoming operative, this was not significantly impacting on the way the Council or other parties had to deal with the plan.

[14]     Mr Hodder said the panel had been established with its powers and functions to continue until it had been able to deal with any issues arising out of an appeal to the High Court so the way it was set up did not necessitate an early hearing of the appeal.

Appearance for the panel

[15]     Ms Robinson appeared as counsel for the panel to assist the Court.   She accepted that there was no time constraint already in place which would prevent the panel from dealing with any issues that might arise out of an appeal.  She confirmed however that the panel was concerned that any delay in the hearing of the appeal would delay the replacement plan becoming operative.

The respondent’s position

[16]     Ms Scott accepted there was no time limit on the panel’s power to deal with any issue arising out of a successful appeal.   She accepted the panel’s decision, which is being appealed, is site-specific.

[17]     Ms Scott said the terms of reference for the panel made it clear that, to assist in Christchurch’s recovery from the Canterbury earthquakes, the finalisation of decisions on the commercial chapter of the replacement plan is to be dealt with as a priority.

[18]     Ms Scott acknowledged that there were four other appeals relating to the replacement plan but detailed how they related to other parts of the plan.   One of those appeals had been set down for hearing in the High Court in May 2017.  She said it was indicated the earliest dates available for the hearing of the other appeals could be in the final quarter of 2017.   The respondent is concerned that, if the hearing date of 22 February 2017 was lost, there would be considerable uncertainty and potentially further significant delays until this appeal could be resolved.

[19]    In counsel’s written communication to the Court, it was made clear the respondent opposes any delay in the hearing of the appeal.

[20]     The  respondent  submits  the  difficulties  Mr  Keung  has  faced  should  not prevent the appellant’s counsel from taking the steps required to ensure the appeal is ready for hearing.

[21]     The respondent responded to the suggestion from Mr Keung that the issues the appellant is concerned with might be resolved through a new resource consent application process.  The respondent argues that there is too much uncertainty as to this for the hearing of the appeal to be delayed so that the appellant can pursue that process before having to commit to all the work required to argue the appeal which has already been filed.

Discussion

[22]     At the conclusion of the telephone conference, I advised all counsel that I would not be allowing the requested adjournment and the hearing of the appeal would have to proceed on 22 February 2017.   I now give brief reasons for that decision.

[23]     The appellant committed itself, all parties and the High Court to do what was required to have the appeal heard and resolved when the appellant filed its notice of appeal on 14 October 2016.  Mr Keung says he has not had the time or ability to consider or discuss issues relating to appeal in the time that has been available since then and that he will not be able to do so before the hearing of the appeal.  Given the appellant had already committed itself and other parties to the appeal and the appeal is to relate to questions of law, what has to be done to ensure the appeal is ready for hearing is a matter primarily for the appellant’s counsel. The appellant is represented by senior counsel and solicitors with specialist experience in this area.  There is no suggestion that they are unable to deal with the particular legal issues in the time that is available.  It is apparent from the notice of appeal that the particular grounds of appeal have already been considered in detail by the appellant’s counsel.  Given Mr Keung’s desire to be involved in these matters, I assume that he would also have been aware of the arguments that were to be advanced on the appellant’s behalf through the appeal at that stage.

[24]     Counsel and the appellant’s legal advisors may need to discuss their views and advice with Mr Keung.  Despite all the distractions and pressure he faces as a result of personal issues and the consequences of the Kaikoura earthquake, I do not accept that they will be unable to do this in the time which is still available.

[25]     In  his  first  affidavit,  Mr  Keung  said  that,  in  the  time  since  the  panel’s decision, the appellant had been able to “go with” the suggestion made by the panel and Christchurch City Council that a resource consent would be the best place to address some of the key issues for the company’s properties in Addington.   In his first affidavit, he requested that the appeal be adjourned to enable to the resource consent  application  to be prepared  and  processed  and  to  allow the appellant  to resume business as usual.

[26]    During the telephone conference, Mr Hodder said it was anticipated the appellant would be able to continue working on this and would be able to file such a resource consent application in late February or early March 2017.

[27]    If Mr Keung and the appellant are able to progress a resource consent application in the immediate future, they must be able to deal with the appeal in the immediate future to the extent that this is necessary.

[28]     Mr Keung has made comments in his second affidavit to the effect that an adjournment of the appeal would allow further time for the appellant to consider its legal options.  The appeal is however concerned with legal issues arising out of the panel’s decision.  The appellant and Mr Keung must have been aware and advised fully as to the errors of law which it wishes to address through an appeal.   The appellant committed itself and the other parties to the hearing of an appeal when it lodged its notice of appeal as to those issues.

[29]     Having filed the notice of appeal, the appellant was committed to do what was required to ensure the appeal could be heard and decided in accordance with the directions of the High Court.

[30]     If one of the options for the appellant is to abandon the appeal, a decision as to that should be made without delay.   Given the appeal can succeed only if the appellant can establish that there were errors of law in the panel’s decision and there are no constraints on counsel to prevent them giving the necessary advice as to the merits of the appeal, there is no reason why the hearing of the appeal should be

delayed because of the possibility that ultimately the appellant might choose to abandon that appeal.

[31]     I accept that, given the terms of reference for the panel, this Court should be doing what it can to avoid unreasonable delay in the hearing of the appeal.

[32]     For all those reasons, the application to vacate the hearing scheduled for 22

February 2017 is denied.

[33]     There  will  however  be  an  amendment  to  the  timetable,  as  discuss  with counsel  during  the  conference.     The  bundle  of  documents,  the  appellant’s submissions and (if relevant) a chronology are to be filed and served by 5.00 pm on

10 February 2017.   The respondent’s submissions and a separate chronology (if relevant) are to be filed and served by 5.00 pm on 17 February 2017.

[34]     Costs in respect of this application are reserved.

Solicitors:

Adderley Head, Christchurch

Simpson Grierson, Christchurch

Rhodes & Co., Christchurch.