Lu v Auckland Council - [2021] NZHC 1232

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000475

[2021] NZHC 1232

BETWEEN
QIUFEN LU

First Plaintiff

LIANSEN MAO
Second Plaintiff

AND

INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED

First Defendant (STRUCK OUT)

AUCKLAND COUNCIL

Second Defendant

Hearing: 21 May 2021

Appearances:

No appearances for/by First and Second Plaintiffs D W Hebenton for Second Defendant

Judgment:

28 May 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 28 May 2021 at 3.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date ………………………..

LU v AUCKLAND COUNCIL [2021] NZHC 1232 [28 May 2021]

Introduction

[1] The Auckland Council, the second defendant, applies to strike out the plaintiffs’ amended statement of claim dated 16 March 2021 (r 15.1 High Court Rules). It says that the pleading discloses no reasonably arguable cause of action and is not capable of being rectified.

[2] The plaintiffs, Ms Lu and Mr Mao, were the owners of some eight properties in the Auckland region. They say they have been adversely affected by the Auckland Unitary Plan and the zoning changes that resulted from its adoption by the Auckland Council. The amended statement of claim also challenges the provision of services by the Auckland Council when exercising its statutory duties under the Resource Management Act 1991 (RMA).

[3]There are three causes of action advanced:

(a)Breach of fiduciary duty in that the Auckland Council failed to consider the plaintiffs’ commercial interests when it adopted the Unitary Plan, which changed the zoning of the properties;

(b)Commercial duress in that the plaintiffs allege that the Auckland Council provided poor service, which caused a delay in the subdivision process for the property at 13 Memorial Avenue, Mount Roskill;

(c)Breach of the Consumer Guarantees Act 1993 in that the plaintiffs allege they are not satisfied with the service the Auckland Council provided as the unitary authority in Auckland responsible for decision making under the RMA.

[4] By way of relief, the plaintiffs claim $11,970,000 “being the commercial losses of the fair market value of the properties that supported by RV & CV less the force[d] sale values of the properties”.

Factual background

[5] The eight properties referred to in the amended statement of claim were all at one time owned by the plaintiffs. The properties on Norana Avenue (owned by Ms Lu), Weranui Road (owned by Ms Lu) and Memorial Avenue (owned by Mr Mao) were purchased between June 2012 and March 2013.

[6] Public consultation on the draft Auckland Unitary Plan began in March 2013 and the Proposed Auckland Unitary Plan (PAUP) was publicly notified in September 2013. The public had the opportunity to make submissions on the PAUP between September 2013 and February 2014.

[7] The properties at 41 Candia Road (owned by Mr Mao) and 41A Candia Road (owned by Ms Lu) were purchased between August and November 2015, and following public notification of…

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 Lu v Auckland Council

Details

AGLC: Lu v Auckland Council [2021] NZHC 1232
Case: [2021] NZHC 1232
Decision Date: 28 May 2021

CaseChat Overview and Summary

The plaintiffs, Qiufen Lu and Liansen Mao, brought claims against the Auckland Council regarding the adoption of the Auckland Unitary Plan and the zoning changes that resulted from its adoption. The Council applied to strike out the claims, arguing that the pleadings did not disclose any reasonably arguable cause of action and were incapable of being rectified. The central legal issues were whether the Council owed the plaintiffs a fiduciary duty, whether the Council's poor service amounted to commercial duress, and whether the Council's provision of services breached the Consumer Guarantees Act 1993. The Court found that none of the claims disclosed a reasonably arguable cause of action. The fiduciary duty claim was rejected as the relationship between the plaintiffs and the Council did not justify such a duty. The commercial duress claim was dismissed because there was no element of compulsion or illegitimacy in the Council's actions. The Consumer Guarantees Act claim was also flawed as the Act does not apply to the Council when it exercises its statutory duties under the Resource Management Act 1991. The Court granted the Council's application to strike out the proceedings and ordered the plaintiffs to pay the Council's costs.

Orders