Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA571/2013
[2013] NZCA 588

BETWEEN

THE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY
First Appellant

THE CHIEF EXECUTIVE OF THE CANTERBURY EARTHQUAKE RECOVERY AUTHORITY
Second Appellant

AND

FOWLER DEVELOPMENTS LIMITED
First Respondent

QUAKE OUTCASTS
Second Respondents

HUMAN RIGHTS COMMISSION
Intervener

Hearing:	23 October 2013 (Last submission received 28 November 2013)
Court:	O'Regan P, Ellen France and Stevens JJ
Counsel:	D J Goddard QC and A A Jacobs for Appellants S P Rennie and J E Bayley for First Respondent F M R Cooke QC, M S R Palmer and L J C McLoughlin-Ware for Second Respondent V E Casey and M J V White for Human Rights Commission
Judgment:	3 December 2013 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed in part.
BThe orders made in the High Court are set aside and replaced with a declaration that the decision of the second appellant to make offers to purchase the properties of owners of vacant land and owners of uninsured improved properties in the red zone was not lawfully made.
C The appellants must pay to each of the respondents costs for a complex appeal on a band B basis and usual disbursements. We certify for two counsel for each respondent.
D We reserve leave to apply for further directions in the event that there are any practical difficulties in relation to the relief granted in this Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No
Introduction  [1]
Parties  [8]
Issues for determination  [11]
Decisions under challenge  [17]
Factual background  [19]
           June 2011 decision  [22]
           September 2012 decision  [34]
           Other developments  [50]
Statutory context  [51]
           The CER Act  [52]
           State Sector Act 1988 and Public Finance Act 1989  [66]
Residual freedom of executive  [75]
Dealing with the issues  [86]
Could the challenged decisions be made under the residual freedom?
           Scope of the June 2011 decision  [87]
           Legal effect of the red zone decision  [92]
           Did the red zone decision require the exercise of statutory power?      [109]
Did the Chief Executive act consistently and comply with the
           CER Act in making the September 2012 decision?  [134]
Was the High Court right to grant the relief that it granted?  [154]
Result  [168]
Costs  [169]
Leave reserved  [170]

Introduction

This is an appeal against a decision of Panckhurst J in which he upheld applications for judicial review by the respondents, Fowler Developments Ltd (Fowler) and Quake Outcasts. [1]
[1]Fowler Developments Ltd v Chief Executive of the Canterbury Earthquake Recovery Authority [2013] NZHC 2173, (2013) 7 NZ ConvC 96-005 [High Court judgment].
The High Court proceedings were triggered by an offer made to Fowler and to the members of the Quake Outcasts by the second appellant, the Chief Executive of the Canterbury Earthquake Recovery Authority (CERA), to purchase their properties. Their properties are situated in an area of Christchurch which in June 2011 was declared a “red zone” after the significant earthquakes that occurred in Canterbury in 2010 and 2011.[2]
[2]The residential red zone comprises various areas of Christchurch (about six square kilometres in total) in which repairs or rebuilding was not possible in the short to medium term because of the severe impact of the earthquakes. We explain this in greater detail below at [22]–[32].
The underlying grievance of the respondents is that the offer made to them in September 2012 set the price of their properties at 50 per cent of the 2007 rating value of their land. (We will call this the “50 per cent offer”.) This contrasted with an offer that had been made some 15 months earlier to the owners of insured residential properties in the red zone, where the offer price had been 100 per cent of the 2007 rating value of both land and improvements in exchange for the transfer of the property and of the seller’s rights against their insurers and against the Earthquake Commission (EQC).[3] (We will call this the “100 per cent offer”.) The reason the lower offer was made to the respondents was because, in the case of Fowler, it owned undeveloped residential land (on which there were no improvements and which was uninsurable) and, in relation to the members of the Quake Outcasts, because their properties were uninsured.[4] The practical effect of the properties being uninsured was that there was no EQC cover.
[3]EQC provides cover up to specified limits for loss or damage from earthquakes and other natural disasters under the Earthquake Commission Act 1993 to residential property owners who have insurance against fire damage.
[4]The members of the Quake Outcasts own either vacant land or uninsured improved residential properties, with one member owning an uninsured improved commercial property.
In the High Court, Panckhurst J made declarations that:
(a)the decision to create the red zone did not lawfully affect the property rights of the respondents;[5] and
(b)the decision to offer to purchase the properties of the respondents on the terms announced by the Minister for Canterbury Earthquake Recovery (the Minister)[6] and the offers subsequently made by the Chief Executive of CERA (the Chief Executive) were not made according to law.[7]
[5]At [81].
[6]The Minister for Canterbury Earthquake Recovery, both now and through the period to which these proceedings relate, is the Hon Gerry Brownlee.
[7]At [102].
The Judge effectively found that the red zone was not lawfully established, but did not grant a declaration to that effect because he mistakenly thought the Quake Outcasts had abandoned their application for such a declaration.[8]
[8]This misunderstanding was confirmed in a minute issued by the Judge: Quake Outcasts v Minister for Canterbury Earthquake Recovery HC Christchurch CIV-2013-409-843, 2 September 2013.
The Judge set aside the offers made to the respondents and directed that the first appellant, the Minister, and the Chief Executive reconsider and reach a new decision to purchase the respondents’ properties, such decision to be made in accordance with law as required by the purposes and principles of the Canterbury Earthquake Recovery Act 2011 (CER Act) and with regard paid to the reasons contained in Panckhurst J’s judgment. The direction did not extend to the offers made to offerees other than the respondents.[9]
[9]At [102].
The Minister and the Chief Executive appeal. They argue both decisions were lawful and effective.

Parties

Fowler is a property developer. It owned 11 vacant residential sections in the red zone. Its claim was narrower than that of the Quake Outcasts, focused only on the decision to make the 50 per cent offer (so the relief it claimed was limited to that described at [4](b) above). Its counsel, Mr Rennie, adopted the submissions made by Mr Cooke QC for the Quake Outcasts and made additional submissions addressing matters in respect of which Fowler’s position differed from that of the Quake Outcasts.
Quake Outcasts is an unincorporated body of 46 owners of properties in the red zone. All were eligible to receive the 50 per cent offer, although their positions are not all the same. Some own undeveloped, vacant land. Some own uninsured residences. One owns an uninsured commercial property. Fowler and some of the Quake Outcasts have accepted the 50 per cent offer subject to an agreement that the present proceedings could still proceed. Others of the Quake Outcasts received, but did not accept, the 50 per cent offers, while some did not complete the necessary consent form and did not therefore receive any offer.
The Human Rights Commission was given leave to intervene. We considered the written submissions provided by its counsel but did not call upon her to address us.

Issues for determination

At the heart of the case is the proper identification of the source of executive authority under which the decision to declare the red zone and the consequent decisions to purchase properties located in the red zone were made. The High Court Judge determined that the red zone decision had to be made pursuant to the powers contained in the CER Act. The appellants contend that the decision could be, and was, made under the residual freedom of the Government to do anything that is not in conflict with any obligation under common law or statute, sometimes also referred to as the “third source” of authority. We will explain later what that concept entails. It was common ground that the residual freedom (as we will call it) did not provide authority to take action impacting on the rights of those affected by the action.
There was no dispute that the executive has a residual freedom to act in the absence of statutory or common law constraints. But there was a dispute about the nature and scope of this source of executive authority. There was also a dispute about the nature of the decisions under challenge, particularly whether they affected rights and whether they were in the field of activity governed by the CER Act. The parties identified two issues for determination:
(a)Was the High Court right to conclude that the rights of property owners, including their human rights, were affected by the decisions challenged in this case?
(b)Was the High Court right to conclude that the decisions challenged in this case could be made only pursuant to provisions of the CER Act?
We have found it more convenient to combine these and deal with this aspect of the case as one issue, namely, could the decisions under challenge be made under the residual freedom? Those two questions encompass the nature and scope of the residual freedom and the applicability or otherwise of the constraints on its exercise. That is the first issue.
The second issue focuses on the decision made by the Chief Executive to offer to purchase the properties of the respondents (and others in similar positions) which was made pursuant to a power given to the Chief Executive under s 53 of the CER Act. The issue, as framed by the parties, is whether the High Court was right to conclude that the decision did not adequately take into account the purposes of the Act and the position of the applicants in light of a duty to act consistently.
The final issue arises for determination if we find any of the decisions under challenge were not lawfully made. The issue is whether the High Court was right to grant the relief that it did.
Before dealing with these issues, we need to consider the scheme of the CER Act and other applicable legislation, to provide a basis for our consideration of the first two issues. We also need to explain what is meant by the residual freedom, and outline its potential application on the facts of this case. The analysis of both of these aspects of the law relating to the appeal needs to be made in the context of the facts of this case, and we will start by identifying the decisions under challenge and outlining the background to the making of those decisions. We will analyse the findings of the High Court Judge in the context of each of the issues as we deal with the relevant issue.

Decisions under challenge

It is important to isolate exactly what decisions are challenged in the present case. The resolutions of Cabinet underpinning the decisions and authorising the making of offers to insured residential owners of red zone properties in June 2011 and to the respondents and other uninsured owners in September 2012 were not decisions having legal effect. Decisions of that kind are not reviewable. As Richardson J explained in New Zealand Maori Council v Attorney-General, a decision of Cabinet to authorise the exercise of a power is a “mere preliminary” to the exercise of the power and has no legal significance until the power is actually exercised.[10]
[10]New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 at 160.
The decisions declared unlawful by the Judge were the decision made by the Minister in September 2012 to make the 50 per cent offers and the consequent decision by the Chief Executive to exercise his power under s 53 of the CER Act to make the offers. As already noted, Panckhurst J did not declare the decision to create the red zone to be unlawfully made. He did, however, find that such a decision could be lawfully made only by the Minister exercising a power conferred on him personally under s 27 of the CER Act. His analysis was focused on that power, not on the Cabinet committee resolutions relating to the red zone.

Factual background

The first of the serious earthquakes that occurred in the Canterbury region happened on 4 September 2010. Immediately after that, Parliament passed the Canterbury Earthquake Response and Recovery Act 2010 (the 2010 Act), which came into force on 15 September 2010.[11]
[11]The Canterbury Earthquake Response and Recovery Act 2010 was repealed by the Canterbury Earthquake Recovery Act 2011, and it was common ground that there is nothing in the 2010 Act that is of relevance to the present proceedings.
A second major earthquake occurred in Canterbury on 22 February 2011. This was a particularly devastating event, with substantial loss of life. Significant additional property damage also resulted.
On 28 March 2011, CERA was established by an Order in Council made under the State Sector Act 1988.[12] The Bill which became the CER Act was introduced to Parliament and passed through all parliamentary stages on 12 April 2011. It received Royal assent on 18 April 2011 and came into force on 19 April 2011.

June 2011 decision

[12]State Sector (Canterbury Earthquake Recovery Authority) Order 2011.

In April 2011, officials from Treasury, EQC and CERA began considering the impact of land and property damage in the Christchurch area and the identification of the worst affected areas. This included consideration of whether people would need to be relocated out of some of the worst affected areas and, if so, whether voluntary or compulsory acquisition of their properties would be needed.
On 23 May 2011, Cabinet delegated power to act to eight Cabinet ministers (we will refer to this group as the Cabinet committee). This delegated power allowed those ministers to make Cabinet decisions on matters relating to Canterbury earthquake land damage and remediation issues.
On 13 June 2011, another serious earthquake occurred.[13] This appears to have been a catalyst to expedite the work relating to land remediation issues.
[13]Coincidentally, the Chief Executive of the Canterbury Earthquake Recovery Authority, Mr Roger Sutton, was appointed on the same day.
On 22 June 2011, the Cabinet committee reached agreement on a detailed strategy for identifying areas of Christchurch or “zones” and for the Crown to purchase properties in the worst affected areas. Surprisingly, no record of the meeting of the Cabinet committee was in evidence in the High Court. Nor was it before us at the time of the hearing of the appeal. We did, however, have a report to Cabinet dated 24 June 2011 which recorded the decisions that were made by the Cabinet committee on 22 June 2011. These decisions were publicly announced on 23 June 2011, and the decisions were formally noted by Cabinet at its meeting on 27 June 2011.
We expressed concern at the hearing that we did not have before us a record of the decisions made by the Cabinet committee or a copy of the paper presented to the meeting of the Cabinet committee on 22 June 2011. After the Registry notified counsel of the imminent delivery of this judgment we received a memorandum from counsel for the appellants disclosing that a paper dated 21 June 2011, which appears to be the paper presented to the 22 June 2011 meeting, had recently been found in the office of the Minister. We deferred the delivery of the judgment. We have now received a copy of the paper and submissions from counsel on it. It is similar to the report to Cabinet dated 24 June 2011, but there are some differences. In particular, the report to Cabinet dated 24 June 2011 contained detail on the likely gross cost of the 100 per cent offer and the likely recovery from the Crown’s assumption of offerees’ rights against EQC and insurers. This detail was missing from the newly discovered paper dated 21 June 2011. We have considered and taken into account the 21 June 2011 paper and the submissions made on it. The discovery of the 21 June 2011 paper does not dispel our concern about the unsatisfactory nature of the records of decisions made by the Cabinet committee (exercising delegated powers to make Cabinet decisions).
Although the focus of the litigation has been on the creation of the red zone, the decisions made by the Cabinet committee on 22 June 2011 in fact created four zones, and also decided on the policy for the making of offers to purchase insured residential properties in the red zone. The executive summary of the report to Cabinet of 24 June 2011 described the four zones as follows:
10Four “zones” have been identified based on the severity and extent of land damage, the cost-effectiveness and social impacts of land remediation.
a)In the Green Zones, there are no significant issues which prevent rebuilding in these areas, based on current knowledge of seismic activity.
b)For the Orange Zones, further work is required to determine if land repair is practical and if the areas are suitable for rebuilding on in the short-to-medium term.
c)In the Red Zones, rebuilding may not occur in the short-to-medium term because the land is damaged beyond practical and timely repair, most buildings are generally rebuilds, these areas are at high risk of further damage to land and buildings from low-levels of shaking (eg aftershocks), flooding or spring tides; and infrastructure needs to be rebuilt.
d)The White Zones include the Port Hills – the earthquakes on 13 June 2011 caused further extensive damage, which needs mapping and assessment. This is underway.
The Crown offer to purchase insured residential properties in the red zone was described in the report in the following terms:
53I propose that the following offers be extended to landowners in the Red Zones.
Insured residential properties
54Insured residential property owners will have the choice of two offer packages:
Option A
55The Crown will offer to purchase the entire property at the 2007 capital value rating valuation (less any land and dwelling insurance payments already made). The Crown will also take an assignment of all earthquake related insurance claims. There will be a process through which any property owners who consider that there is a material discrepancy between the 2007 rating valuation and the market value of their property (e.g. because of subsequent improvements) can raise their concerns.
OR
Option B
56The Crown will offer to purchase the land only at the greater of the following (less any EQC land payments already made):
a) 2007 land value rating valuation; or
b) EQC valuation for the minimum lot size applicable.
The Crown will also take an assignment of the EQC land claim, and landowners will be free to pursue their private insurance company for any other insurance claims they have.
...
Uninsured residential properties and vacant lots
62Neither uninsured residential properties nor vacant lots are covered by the EQC land or improvements insurance. For residential owners, the risks of not having insurance were risks that ought to have been considered when making the decision to invest in the property. Residential owners should have been aware of the risks when choosing not to purchase insurance. Vacant lot owners were not eligible for EQC or private insurance cover.
63Consideration will need to be given over time to the position of these people.

The decision to omit uninsured property owners from the acquisition proposal seems to have been made at the last minute. A draft of the paper presented to the Cabinet committee dated 21 June 2011 (the day before their meeting) refers to a proposed offer to purchase their properties for 100 per cent of the 2007 rating value of the land (double the price eventually offered). The newly discovered paper, which is also dated 21 June 2011 (and which seems to be the paper actually considered by the Cabinet committee), omits this reference and instead says the following:
Uninsured residential properties and vacant lots
62Neither uninsured residential properties nor vacant lots are covered by EQC land or improvements insurance. For residential owners, the risks of not having insurance were risks that ought to have been considered when making the decision to invest in the property. Residential owners should have been aware of the risks when choosing not to purchase insurance. Vacant lot owners were not eligible for EQC or private insurance cover.
63Consideration will need to be given over time to the position of these people.
The report to Cabinet dated 24 June 2011 records that the anticipated cost of purchasing the insured residential properties was up to $1.7 billion, but this was expected to be offset by recoveries from EQC and insurers, leaving a net cost of between $485 million and $635 million. It is significant, in the context of the 50 per cent offer made to the respondents, that the Crown envisaged that it would recoup between 60 per cent and 70 per cent of the cost of buying the insured properties from EQC and insurers. However, as Mr Cooke pointed out in his submissions on the newly discovered paper of 21 June 2011, this level of detail was not before the Cabinet committee on 22 June 2011 so does not seem to have loomed large in its decision making.
The Chief Executive then in August 2011 exercised his power under s 53 of the CER Act to make offers to insured residents. The process involved seeking the consent of the insured owners to receive an offer and then making an offer to them. As recorded in the High Court judgment, the fact sheet accompanying the offer made to each resident included the following statement:
What will happen to my property if I decide that I do not want to accept the Crown’s offer?
If you decide that you do not want to accept the Crown’s offer you should be aware that:
The Council will not be installing new services in the residential red zone.
If only a few people remain in a street and/or area, the Council and other utility providers may reach the view that it is no longer feasible or practical to continue to maintain services to the remaining properties.
Insurers may cancel or refuse to renew insurance policies for properties in the residential red zones.
While no decisions have been made on the ultimate future of the land in the residential red zones, CERA does have powers under the Canterbury Earthquake Recovery Act 2011 to require you to sell your property to CERA for its market value at that time. If a decision is made in the future to use these powers to acquire your property, the market value could be substantially lower than the amount that you would receive under the Crown’s offer.
These rather foreboding comments were repeated by both the Minister and the Chief Executive through the media.[14]
[14]The Christchurch City Council had estimated an annual ongoing infrastructure costs per household of over $16,000, compared to a pre-earthquake cost of about $600 per household. This was anticipated to increase as people moved out of the red zone.
The offers and accompanying information were sent to those eligible to receive them (red zone residential property owners who had insurance and therefore EQC cover, and who had consented to receiving an offer). In November 2011 the Minister used his power under s 27 of the CER Act to create new residential zoning in areas designed to provide places for displaced red zone residents to build new houses. Also in November 2011 the Minister made announcements resolving the position of some properties in the orange zone (declaring them either red zone or green zone).

September 2012 decision

Although media statements made about the time of the 22 June 2011 decisions had given indications that the position of uninsured red zone property owners would be resolved within weeks, this did not occur.
In April 2012 CERA provided a report to the Minister setting out its initial thinking about property owners in the red zone who had not received a 100 per cent offer.
The initial thinking paper considered five classes of property owners who had not received a 100 per cent offer. These were owners of:
(a)       residential properties under construction;
(b)       vacant land;
(c)       commercial and industrial properties;
(d)       properties owned by not-for-profit organisations; and
(e)       Waimakariri leasehold properties.
CERA recommended 100 per cent offers be made to all of these categories, apart from the uninsured property owners, which were not dealt with in the paper. In relation to those with partially completed houses, the CERA advice was:
CERA assesses that this option [100 per cent offer, giving value for the uncompleted residence] is consistent with the Crown’s recovery objectives, and it does not exclude those red zone property owners from Government support based on their inability to obtain home insurance. Without support from the Crown this group of property owners may have difficulty re‑establishing themselves and moving on with their lives with certainty and confidence.
In relation to vacant land, it also suggested that the Minister consider extending an offer at 100 per cent of land value. The advice was:
CERA considers that a similar approach is warranted here to allow owners of vacant land to move on with their lives with certainty and confidence. This approach is consistent with the Crown’s recovery objectives.
In relation to commercial properties the recommendation was that the Crown make an offer modelled on the offer made to insured residential property owners, modified to take into account the absence of land insurance policies. Moreover 100 per cent offers were recommended for the not-for-profit organisations.
In May 2012, after further discussion with the Minister and further consideration, CERA recommended that offers be made on the same basis as for insured owners to those owning properties under construction and those owned by not-for-profit organisations, for which EQC cover was unavailable. Cabinet resolved to do this in June 2012.
The Cabinet decision in relation to the offers under challenge was made by the Cabinet Business Committee on 3 September 2012.[15] A supporting paper explaining the background to this decision, signed by the Minister on 31 August 2012, said that in relation to properties with no insurance (vacant land and improved but uninsured residential properties) there were three broad options, namely:
(a) no offer;
(b) an offer at a reduced rate in valuation; or
(c)an offer on the same terms as for insured residential properties (that is, the same as the 100 per cent offer).
[15]In this decision Cabinet also agreed to make 100 per cent offers to insured owners of the Waimakariri leasehold properties, on condition that the leaseholders enter into agreements with the Council to acquire a freehold interest in the land.
The first of these was not recommended, because “there are good reasons to support exit from the red zones”.
The third was also not recommended. The Cabinet paper said:
There are strong arguments for not extending an offer to these property categories on the same terms as for insured properties. It would compensate for uninsured damage, be unfair to other red zone property owners who have been paying insurance premiums, and it creates a moral hazard in that incentives to insure in the future where insurance is available are potentially eroded.
Support for the second option was indicated, to recognise that red zone properties were worth a lot less than they had been before the earthquakes, that the property damage they had suffered was not insured and that there was some residual property value.
In relation to vacant land, the paper recorded that there were 65 vacant sections. The Valuer-General had indicated that the market value of this land might be only 10 per cent of the pre-earthquake value. The Minister recommended an offer at 50 per cent of rateable value on the basis that this would:
... ensure that the offer is not below the post-earthquake value (given individual properties’ values may vary from the 10% estimate), and help support the signal that the Government wants to encourage property owners to move on from the red zone.
In relation to uninsured improved properties, the paper noted that there were 50 of these in the red zones. Further, some of these had consciously chosen not to insure, whereas some had been insured at some point but did not meet the insurance continuity requirements for the 100 per cent offer. Again, an offer at 50 per cent of rateable land value was suggested, but with property owners retaining salvage rights to uninsured buildings. The reasoning for setting the offer at this level was as follows:
This offer supports the signalling objective for the red zone while providing some support for recovering elsewhere and acknowledging that the owners were not fully insured throughout the whole process. I would expect that for most red zone property owners in this position, the offer would be in the order of $60,000–$100,000.
In relation to commercial properties that were insured but did not have EQC cover a variant on the offer was proposed, reflecting the absence of EQC cover. The options involved the most recent rating value as before the improvements and 50 per cent of the most recent valuation for the land, or 50 per cent of the most recent rating valuation of the land with the owner retaining the insurance claims in relation to the improvements.
Following the Cabinet Business Committee decisions, the Minister publicly announced the 50 per cent offers on 13 September 2012, and the offers were sent out to those who had returned consent forms on 5 November 2012.
The material sent with the offer made to each property owner included the same statement about the possible detrimental outcome for those who chose not to accept the offer as had appeared in the documentation accompanying the 100 per cent offer.[16]

Other developments

[16]This is quoted at [29] above.

In the period between June 2011 and September 2012, there were a number of other developments. Areas of the orange zone were classified as red zone or green zone. The Minister used his power under s 27 of the CER Act to amend district plans to create new residential zones to which displaced red zone property owners could move. The process of developing and consulting on the Recovery Strategy required by the CER Act was undertaken and the Recovery Strategy was approved and Gazetted on 31 May 2012.

Statutory context

We now turn to the statutory context. The CER Act is the key aspect of this, but Mr Goddard QC submitted that both the State Sector Act 1988 and the Public Finance Act 1989 are also important features of the statutory context.

The CER Act

As noted earlier, the CER Act was passed after the second major earthquake. It replaced the 2010 Act. This Court analysed the CER Act in its decision in Canterbury Regional Council v Independent Fisheries Ltd.[17] We adopt that analysis. The Court described the CER Act as “legislation imposing obligations and conferring wide powers on the executive branch of government to make decisions to ensure the expeditious recovery of Christchurch in the wake of both the September 2010 and the February 2011 earthquakes”.[18]
[17]Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 57 at [12]-[71].
[18]At [13].
The CER Act sets out its purposes in s 3:
3        Purposes
The purposes of this Act are—
(a)to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:
(b)to enable community participation in the planning of the recovery of affected communities without impeding a focused, timely, and expedited recovery:
(c)       to provide for the Minister and CERA to ensure that recovery:
(d)       to enable a focused, timely, and expedited recovery:
(e)to enable information to be gathered about any land, structure, or infrastructure affected by the Canterbury earthquakes:
(f)to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:
(g)to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities:
(h)to provide adequate statutory power for the purposes stated in paragraphs (a) to (g):
(i)to repeal and replace the Canterbury Earthquake Response and Recovery Act 2010.
Part 2 of the Act is headed “Functions and Powers to assist recovery and rebuilding”, and is divided into a number of subparts. Subpart 1 provides for “input into decision making by community and cross-party forums”. It provides for community forums and cross-party Parliamentary forums.
Subpart 2 sets out the functions and powers of the Minister and Chief Executive. The Minister’s functions are set out in s 8, and include: developing and approving a Recovery Strategy and Recovery Plans; suspending, amending or revoking RMA documents; and directing councils to carry out certain functions.
Under s 9 the Chief Executive is responsible for: developing a Recovery Strategy and Recovery Plan if directed to do so by the Minister; commissioning and disseminating information; controlling building, demolition and removal work; and closing or restricting access to roads. Significantly in the context of the present appeal, he is also authorised to acquire land and property under s 53.
Section 10 requires that the Minister and the Chief Executive exercise their powers under the Act in accordance with the purposes set out in s 3 and only where he or she reasonably considers it necessary to do so.
Subpart 3 concerns the “Development and implementation of planning instruments”, and contains a series of provisions elaborating on the functions of the Minister and the Chief Executive relating to the development of a Recovery Strategy.
Section 11 requires the Chief Executive to develop a Recovery Strategy and submit it to the Minister for approval, who is then responsible under s 11(2) for recommending to the Governor-General that it be approved by Order in Council. Subsection (3) describes the “Recovery Strategy” as an overarching, long-term strategy for the reconstruction, rebuilding, and recovery of greater Christchurch.
This Court commented on the significance of s 11 in Independent Fisheries:
[51] It is clear from this definition that the development and approval of the Recovery Strategy is an essential feature of the Act. The definition also serves to confirm the wide approach to the interpretation of the purposes of the Act to which we have already referred. Significantly for the present case, it is clear from s 11(3) that it is the Recovery Strategy that is intended to address the “long-term strategy” for the reconstruction, rebuilding and recovery of greater Christchurch, including the identification of areas for rebuilding and redevelopment, their sequencing and the location of “existing and future infrastructure”. These provisions suggest strongly that Parliament intended planning certainty in the long-term to be addressed, at least principally, in the Recovery Strategy.
The Recovery Strategy is required to be developed in consultation with local councils and Te Rūnanga o Ngāi Tahu,[19] the draft is required to be publicly notified,[20] and public hearings are required while the Strategy is being developed.[21] Once approved, the Recovery Strategy will prevail over any “RMA document” and other instruments set out in s 26(2) (which includes a wide range of local and regional planning and policy documents).[22]
[19]Section 11(4).
[20]Section 13.
[21]Section 12(1).
[22]Section 15. An “RMA document” is defined in s 4 as a regional policy statement, a proposed regional policy statement, a proposed plan, or a plan made under the Resource Management Act 1991, or a change or variation to any of those documents.
Provision is also made for Recovery Plans, which must also be approved by the Minister.[23] A Recovery Plan must be consistent with the Recovery Strategy. However, in recognition of the fact that the Recovery Strategy would take some time to develop and finalise, provision is made for a Recovery Plan to be developed and approved before the Recovery Strategy is approved.[24] A Recovery Plan may deal with “any social, economic, cultural, or environmental matter” or “any particular infrastructure, work, or activity”.[25] A draft Recovery Plan must be publicly notified and available for written comment.[26] Once a Recovery Plan has been approved by the Minister in accordance with s 21, any person exercising specified functions or powers under the Resource Management Act 1991 (RMA) must not make a decision or recommendation that is inconsistent with the Recovery Plan.[27] In addition, s 26(1) provides that instruments described in s 26(2) must not be inconsistent with a Recovery Plan. Section 26(3) requires that such instruments must be amended if that is required by the Recovery Plan.
[23]Sections 16–26.
[24]Section 18(2).
[25]Section 16(2).
[26]Section 20.
[27]Section 23(1).
Also within subpart 3 is s 27, which provides that the “Minister may, by public notice, suspend, amend, or revoke” the whole or part of a series of listed instruments and plans, including RMA documents and council plans or policies that relate to greater Christchurch. Section 27(2) allows the Minister, by public notice, to suspend or cancel: any resource consent; any use protected or allowed under ss 10, 10A or 10B of the RMA; or any certificate of compliance under the RMA. Section 27(7) provides that no compensation is payable under the CER Act in respect of any action taken under s 27. In Independent Fisheries, this Court held that s 27 is not an alternative and independent mechanism for the Minister to use in situations where the Recovery Strategy or a Recovery Plan should be used.[28]
[28]At [61]–[69].
Subpart 4 provides the Chief Executive with various powers, such as information gathering and dissemination, surveying and powers of acquiring and disposing of property. It also gives powers of entry onto private premises and to undertake building or demolition works. Of particular relevance to the present appeal is s 30, which empowers the Chief Executive to “disseminate information and advice on matters relating to work and activities under the Act”.
Section 53 states that the Chief Executive may, in the name of the Crown, purchase or otherwise acquire land and personal property. Property may be acquired voluntarily under s 53, and the Crown offers made to purchase red zone land were made under s 53. The Act also sets out provisions through which the Minister may compulsorily acquire land.[29] Sections 64–67 set out the compensation provisions applying when compulsory acquisition takes place, and s 68 provides a right of appeal to the High Court.

State Sector Act 1988 and Public Finance Act 1989

[29]Sections 53–58.

Mr Goddard submitted that the State Sector Act and the Public Finance Act have an important bearing on the present appeal. He said Panckhurst J was wrong to dismiss the submissions made in the High Court on these two Acts as “something of a distraction”.[30]
[30]High Court judgment, above n 1, at [73].

Mr Goddard highlighted ss 32, 33 and 34 of the State Sector Act.
Section 32 provides that a chief executive of a Government Department (such as CERA) is responsible to the relevant Minister for carrying out the functions and duties of the Department, including those imposed by an Act or by Government policy.
Section 33 says chief executives act independently of the Minister only in relation to employment matters.
Section 34 confers on a chief executive all the powers necessary to carry out his or her functions, responsibilities and duties under the State Sector Act or any other Act (the CER Act being the obvious “other Act” in this case).
The point Mr Goddard drew from these provisions was that the Chief Executive of CERA was responsible to the Minister in relation to the performance of his functions unless another Act required him to act independently.
Mr Goddard’s submissions in relation to the Public Finance Act emphasised the controls on expenditure of public money. He argued that the effect of these controls was that the Chief Executive could not make offers to purchase properties, thereby committing the Government to substantial expenditure, without having first obtained the necessary financial authority. So any decision by the Chief Executive had to take into account the amount of available funding.
We were concerned that Mr Goddard was suggesting that compliance with the Public Finance Act obviated the need for the Chief Executive to comply with s 10(1) of the CER Act. He assured us that was not his submission.
We record Mr Goddard’s submissions but we agree with Panckhurst J that they do not greatly assist us in resolving the issues in dispute. We will explain why later.

Residual freedom of executive

The residual freedom is a concept that is controversial. It is often referred to as the third source of authority.[31] There is no dispute about its existence in this case but there is a dispute about its scope.
[31]Other names given to the residual freedom include “de facto powers”, “common law discretionary powers”, “common law personified powers”, “secondary prerogative powers”, “pretended prerogatives”, “non-statutory powers” and “capacities”: see BV Harris “The ‘Third Source’ of Authority for Government Action Revisited” (2007) 123 LQR 225 at 225 [Harris (2007)].
The essence of the concept is the idea that the executive is free to do anything that is not prohibited by law (either statute or common law).[32] The reason it has been given the label “third source” is to distinguish this source of executive authority from powers granted under statute (the “first source”) and prerogative powers (the “second source”).[33]
[32]BV Harris “The ‘Third Source’ of Authority for Government Action” (1992) 109 LQR 626 at 626 [Harris (1992)].
[33]Prerogative powers in this context means the prerogative rights that Courts have recognised as powers that are unique to the Crown. For example, the power to grant a pardon. There is still debate about the distinction between the prerogative and the residual freedom. See, for example, GDS Taylor Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010) at [2.18], Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Thomson Brookers, Wellington, 2007) at [17.3.2(1)] and HWR Wade “Procedure and Prerogative in Public Law” (1985) 101 LQR 180 at 191–194.
Professor Harris describes the residual freedom as being subject to any constraints which may be imposed by either common law or statute.[34] In a more recent article, he describes it as the freedom to do anything that is not in conflict with positive law.[35] Examples that have been given in academic commentaries of government action that might be taken under the residual freedom are the publication of information, the entering into of contracts, and the making of ex gratia payments.[36]
[34]Harris (1992) at 626.
[35]Harris (2007) at 249.
[36]Harris (1992) at 627 and Jeff Simpson “The Third Source of Authority for Government Action Misconceived” (2012) 18 Auckland U L Rev 86 at 88.
The residual freedom cannot authorise government officials to act in conflict with the legal rights and liberties of citizens.[37] This includes rights and liberties recognised in statute, such as the New Zealand Bill of Rights Act 1990 (or, relevantly to this case, the RMA), and common law rights, such as the protection to property given by the law of trespass.
[37]Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48 at [97].
Nor can the residual freedom be authority for executive action where the field of that action is covered by statute. That principle is based on Attorney-General v De Keyser’s Royal Hotel Ltd,[38] though that case was dealing with a prerogative power, not the residual freedom. However, it has been applied also to the residual freedom.[39] In the De Keyser’s case, Lord Atkinson said:[40]
It is quite obvious that it would be useless and meaningless for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the Legislature (in the absence of compelling words) an intention so absurd. ... after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.
[38]Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (HL) at 528 and 539–540.
[39]R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148, [2008] 3 All ER 548 at [50]. See also Simpson at 91–92.
[40]At 539–540.
The extent to which this observation applies to the residual freedom is unclear. But Mr Goddard accepted that the Crown could not rely on the residual freedom if a statute “occupied the field”, so we do not need to form a view on the issue.[41]
[41]Wade and Forsyth say the residual freedom (or “common law powers” as they call the concept) “cannot be exercised inconsistently with a statute”: HWR Wade and CF Forsyth Administrative Law (10th ed, Oxford University Press, Oxford, 2009) at 183.
The exercise of the residual freedom is reviewable by the courts.[42] The focus of any such review will be on the question of whether any legal rule prohibits the action or requires the action to be taken under a statutory power,[43] but review may also be on reasonableness/rationality grounds.[44]
[42]Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) confirmed that the exercise of non-statutory executive power is reviewable. McGrath J in Ngan v R at [98] considered that residual freedom action was reviewable, as do Wade and Forsyth at 183.
[43]Simpson at 89–90.
[44]Simpson at 91.
In New Zealand, McGrath J in the Supreme Court recognised the existence of the residual freedom in Ngan v R[45] and in Rogers v Television New Zealand.[46] In the former case, McGrath J described the residual freedom as follows:[47]
It is, however, a residual form of authority which is subject to statutory and common law constraints. It does not permit government officials to act in conflict with the rights and liberties of citizens. In particular the residual freedom of officials is constrained by the Bill of Rights Act. Residual freedom to act can never justify a breach of protected rights. Wherever residual freedom conflicts with a statutory or common law rule it must give way to that rule. No balancing of the relevant interests is permitted because the residual freedom only exists to the extent that there is no other positive law that deals with the circumstances in question.

The Chief Justice expressed the view that there is no residual freedom in Hamed v R, stating in that decision that “public officials do not have freedom to act in any way they choose unless prohibited by law, as individual citizens do.”[48] That observation was made in the context of a surveillance operation of an area of public land. However, in the same case, Tipping J reiterated his view from Ngan that police officers are entitled to do what any member of the public can lawfully do in the same circumstances and do not need any specific authority to do so.[49]

[45]Ngan v R at [93]–[100]. Tipping J also recognised the existence of the residual freedom in Ngan v R at [45].

[46]Rogers v Television New Zealand [2007] NZSC 91, [2008] 2 NZLR 277 at [110].

[47]Ngan v R at [97].

[48]Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [24].

[49]At [217]. In Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729 at [26]–[38], this Court concluded that, despite the division of views about the residual freedom in the Supreme Court, the combined effect of the decisions in Ngan, Rogers and Hamed was that there is a residual freedom that authorises executive action unless there was a statutory or common law prohibition against it.

The position is similar in the United Kingdom, where the existence of the residual freedom has been confirmed, although with some reluctance. The most recent statement comes from Lord Sumption, speaking for the majority of the United Kingdom Supreme Court in R (New College London Ltd) v Secretary of State for the Home Department:[50]
[28] ... It has long been recognised that the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority: see B.V. Harris, “The ‘Third Source’ of Authority for Government Action Revisited” (2007) 123 LQR 225. The extent of these powers and their exact juridical basis are controversial. In R v Secretary of State for Health Ex p C [2000] 1 FLR 627 and Shrewsbury and Atcham Borough Council v Secretary of State for Communities and Local Government [2008] 3 All ER 548, the Court of Appeal held that the basis of the power was the Crown’s status as a common law corporation sole, with all the capacities and powers of a natural person subject only to such particular limitations as were imposed by law. Although in R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681, para 47 Lord Hoffmann thought that there was “a good deal of force” in this analysis, it is open to question whether the analogy with a natural person is really apt in the case of public or governmental action, as opposed to purely managerial acts of a kind that any natural person could do, such as making contracts, acquiring or disposing of property, hiring and firing staff and the like.
[50]R (New College London Ltd) v Secretary of State for the Home Department [2013] UKSC 51, [2013] 1 WLR 2358. See also Shrewsbury & Atcham Borough Council v Secretary of State for Communities and Local Government [2007] EWHC (Admin) 2279 at [17] per Underhill J. For a fuller discussion of recent English and United Kingdom cases see BV Harris “Government ‘Third Source’ Action and Common Law Constitutionalism” (2010) 126 LQR 373 at 374–376 [Harris (2010)].
While this statement of the law confirms the residual freedom as a source of executive authority under the law of England, it is unclear whether the reference to “general administrative powers” limits its scope. On the face of it, it appears to be a narrower formulation than that of the New Zealand Judges referred to above. House of Lords decisions that have been interpreted as supporting the existence of the third source are R (Anufrijeva) v Secretary of State for the Home Department[51] and R (Hooper) v Secretary of State for Work and Pensions.[52]
[51]R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604, where the majority held that the common law right of an asylum seeker to be informed of the outcome of her application before it took effect thwarted any government action to use the third source to terminate income support before notification had occurred. See Harris (2010) at 378.
[52]R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2005] 1 WLR 1681, where the majority accepted that the government could pay pensions to widowers even though payment was not positively authorised by statute using its “common law powers”.
Opposition to the concept of the residual freedom was expressed by Lord Carnworth in his minority opinion in New College London Ltd,[53] and by Laws J in R v Somerset County Council, ex parte Fewings.[54]

Dealing with the issues

[53]At [34], noting his views in Shrewsbury and Atcham Borough Council, above n 41, at 562–564.

[54]R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513 (HC) at 524, although the comments in that case should be considered in light of their context as being about the powers of local authorities. Sir John Laws has underscored his opposition to the third source extra-judicially in “Public Law and Employment Law: Abuse of Power” [1997] PL 455.

We now turn to the issues identified at [13]-[15] above.

Could the challenged decisions be made under the residual freedom?

Scope of the June 2011 decision

The June 2011 decision had a number of components. First, the identification of the red zone, green zone, orange zone and white zone, based on the assessment made by engineering consultants engaged by EQC. Second, the decision that offers should be made to insured residential property owners, but that no offer should be made to uninsured property owners until further consideration had been given to their positions.
It was notable that throughout the oral submissions made by the respondents, reference was made only to the red zone aspect of the decision. There is no suggestion that there was anything amiss with the decisions relating to the green, orange and white zones, and the respondents expressly did not challenge the decision to make the 100 per cent offers to the insured residential property owners in the red zone. It was also notable that the respondents did not suggest that the information underpinning the red zone decision was inaccurate or incorrect. In other words, they did not challenge the substance, but rather the process of the decision making.
There was no dispute that the decision made by the Chief Executive to make an offer to each of the insured residential property owners was made pursuant to s 53 of the CER Act. The Chief Executive confirmed in his evidence that this was the legal basis on which he made the offer. That being the case, the offer was subject to the requirements of the CER Act, particularly the requirement of s 10(1) that any decision be made in accordance with the purposes of the CER Act set out in s 3. As there is no challenge to the legality or validity of the 100 per cent offers, there is no need for us to form a view about compliance with that requirement, though in saying that we do not suggest that we have any basis to suggest non-compliance.
Because the only aspect of the June 2011 decision that was challenged was the red zone aspect of that decision, we will refer to “the red zone decision” from now on, unless we are referring to all aspects of the June 2011 decision.
In order to determine whether the red zone decision was lawfully made, we must consider whether the decision affected legal rights, and whether it was required to be made under the CER Act.

Legal effect of the red zone decision

The red zone decision could not be made using the residual freedom if it interfered with the rights and liberties of red zone property owners.
The High Court Judge accepted a submission that the red zone decision affected legal rights.[55] He said that the reality of the decision meant that over time the red zone would cease to be residential and would become open space. In the meantime, the residential zones under the District Plan subsisted, but in reality were no longer operative. He said that this meant that, although property owners in the red zone had the right to establish and live in their homes in the red zone subject to compliance with the relevant plan, the principle that people in communities can order their lives under the RMA with some assurance no longer applied to them.[56]
[55]High Court judgment, above n 1, at [60]-[65].
[56]The reference to people ordering their lives with some assurance comes from the judgment of the Chief Justice in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597 at [10].
This finding led the Judge to conclude that the red zone decision did, in effect, override the relevant planning documents and also interfered with the human rights of the affected residents (their right to enjoyment of the home). He found that the practical implications of the red zone were such that it was necessary for legally binding and compulsory powers to be used, overriding by law the relevant RMA documents and Local Government Act 2002 (LGA) obligations applying to red zone residents.
Having made that decision, it was then a logical consequence that the Judge found that the red zone decision could be made only by the Minister under s 27, and that recourse to that statutory power was required.[57] Since that did not happen, the decision to create the red zone had not been done lawfully.
[57]At [70].
In this Court the parties characterised the nature of the June 2011 decision quite differently. For the appellants, Mr Goddard suggested that the creation of the red zone, green zone, orange zone, and white zone was simply a reflection of the engineering advice received and the dissemination of that information to affected residents. The red zone decision was simply the publication of information and did not have any legal effect, or affect rights and liberties. He said the provision of accurate information about land, and the making of offers that property owners were free to accept or reject, could not be characterised as interference with rights. He said that the number of residents in the green zone massively outnumbered those in the red zone, and the decision to create the green zone was an extremely important step for them as well, because it paved the way for the process of settling claims and remediating property damage to begin.
On the other hand, Mr Cooke said that the practical effect of the creation of the red zone had to be examined. He said that the deliberations of officials and Ministers in the period preceding the June 2011 decision indicated that attention was focused on the “retirement” of land in the worst affected suburbs of Christchurch. A paper setting out the options for achieving this “retirement” set out five options, all but one of which appeared to involve the use of powers under the CER Act. They were:
(a) voluntary or compulsory acquisition (under s 53);
(b)use of the power under s 27 to amend the land use zoning in the city plan;
(c) using s 27 to remove existing use rights;
(d)the Minister directing a Recovery Plan be produced setting out the amendments required to the city plan and any other relevant RMA document; and
(e)the Christchurch City Council amending the city plan to change their land zoning.
None of these options included the provision of information to residents to make it clear that rebuilding would not be possible in the short term and offers to encourage them to leave voluntarily. None involved the use of the residual freedom.
Mr Cooke said it could be inferred from the newly discovered paper dated 21 June 2011, considered by the Cabinet committee on 22 June 2011, as well as the report to Cabinet of 24 June 2011, when read in the light of earlier advice and drafts of those papers, that the Crown was pursuing a clearance programme (that is, a programme to remove all buildings and improvements from red zone land, followed by removal of infrastructure) in declaring the red zone and making the 100 per cent offer. He said the intention was to entice the majority of residents to leave voluntarily, leaving a bleak situation for the remainder who could then be pressured into leaving or, ultimately, subject to compulsory acquisition. We consider this reads too much into the comments about the difficulties of continued occupation of the red zone in those papers.

Those considerations do not apply to the same extent to the September 2012 decision. In particular, it cannot fairly be said that delay is a significant factor, given that only a few months passed between the making of the September 2012 decision and the commencement of the present proceedings.[73] Similarly, the much smaller number of offerees under the 50 per cent offer, as compared to the 100 per cent offer, means that the logistical difficulties that would have applied to an order affecting the validity of the former do not apply to a declaration in relation to the latter.[74]

[73]Fowler filed its application for review five months after the announcement of the September 2012 decision, and before the time for accepting the Government’s offer had closed. Quake Outcasts filed their application just under three months after Fowler’s application was filed.

[74]The Cabinet paper noted that there are 65 vacant sections in the red zone and 50 uninsured improved properties. The June 2011 paper indicated that there were 5,176 total red zone properties at that time.

We cannot see any valid reason not to make a declaration in relation to the September 2012 decision. The Crown will then be required to respond in a way which addresses the findings made by this Court. This will allow sufficient flexibility for a reconsideration of the policy relating to vacant land and uninsured residences in the red zone if necessary.
Accordingly, we conclude that the making of a declaration is the appropriate outcome in the present case.

Result

For the reasons we have set out, we allow the appeal in part. We set aside the orders made in the High Court, and in their place we make a declaration that the September 2012 decision by the Chief Executive to offer to purchase the properties of owners of vacant land and owners of uninsured improved properties in the red zone was not lawfully made.

Costs

Although the relief granted in this Court differs from that granted in the High Court, Fowler has been largely successful in upholding the High Court judgment, and for that reason is entitled to costs in this Court. The Quake Outcasts cast the net of their proceedings more widely, and in this Court have not succeeded in having the Judge’s orders in relation to the June 2011 decision upheld. They have, however, upheld the finding that the September 2012 decision was not lawfully made, and the relief granted in this Court substantially vindicates their position. In the circumstances we consider they are entitled to their full costs as well. We therefore make an order that the appellants must pay both Fowler and the Quake Outcasts costs for a complex appeal on a band B basis, plus usual disbursements. We certify for two counsel in relation to both respondents (but not for three counsel in relation to the second respondents).

Leave reserved

We reserve leave to apply for further directions in the event that there are any practical difficulties in relation to the relief granted in this Court.

Solicitors:
Crown Law Office, Wellington for Appellants
Rhodes & Co, Christchurch for First Respondent
G C A Lawyers, Christchurch for Second Respondents

[2013] NZCA 588

3 December 2013 at 10 am