Owens v Tauranga Marina Society Incorporated
[2025] NZHC 2601
•9 September 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2024-470-0135 [2025] NZHC 2601
UNDERthe Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
IN THE MATTER of the ownership, operation and
administration of the Tauranga Marina by the Tauranga Marina Society and
the Tauranga City Council
BETWEENDOUGLAS CHARLES OWENS, MOHI-TOMA ROBERT TE
KAPUARANGI OWENS and TAMAWERA
PUTAUAKI LOUIS OWENS as trustees of the Nereides TrustApplicants
ANDTAURANGA MARINA SOCIETY INCORPORATED
First respondent
TAURANGA CITY COUNCIL
Second respondent
Hearing: 7 July 2025
(Heard at Hamilton)
Appearances: G J Judd KC and K J Patterson for applicants
D P Weaver and M Paddison for first respondent
S A Armstrong KC and J A Ruddell for second respondent Date of judgment: 9 September 2025
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 9 September 2025 at 12.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
OWENS v TAURANGA MARINA SOCIETY INC [2025] NZHC 2601 [9 September 2025]
[1] The plaintiff trustees—as licensees of a marina berth at the Tauranga Marina (the Marina), and therefore eligible for membership of the Tauranga Marina Society Inc (the Society)—seek judicial review of arrangements between the Tauranga City Council (the City Council) and the Society allegedly in breach of the foundation, objects and terms of those arrangements. The relief sought is some 27 declarations and an order for inquiries and accounts, including declarations the Society has no power to grant or issue berth licences or to lease berths at the Marina.
[2] For my present decision are: the trustees’ 5 September 2024 amended application for interim orders prohibiting the Society from buying or selling berths, or licences for berths, at the Marina; and the City Council’s 19 February 2025 application to strike out so much of the trustees’ claim as relies on s 7 of the Bay of Plenty Harbour Board (Sulphur Point) Vesting and Empowering Act 1981 (the 1981 Act).1
Background
[3] Sections 4–5 of the 1981 Act vested the areas of “land, foreshore, bed of the sea, and water space” of the Marina in the Bay of Plenty Harbour Board (the Board). Section 156 of the Harbour Act 1950 (since repealed) entitled the Board to licence and permit those areas to be used or occupied for specified purposes. Section 7 of the 1981 Act entitled the Board to license and permit the Marina “to be used or occupied for boat harbour purposes”.
[4] By operation of the Local Government (Bay of Plenty Region) Reorganisation Order 1989 (the 1989 Order), the City Council largely succeeded the Board in respect of the Marina. The 1989 Order vested the Board’s land below the mean high water mark in the Bay of Plenty Regional Council (the Regional Council) and transferred any associated property to the City Council.
[5] The Society manages the Marina for the City Council (and, previously, the Board) under contract, in which the City Council’s objectives include “no person shall receive any undue preference to a berth … or any other benefit within the Marina” and
1 The City Council’s application also seeks strike out of other allegations; alternatively, a more explicit pleading of all allegations. I address those aspects at [36] below.
“no person should receive any form of profit from any transfer of any such benefits”. The Society is incorporated under the Incorporated Societies Act 1908, including constitutionally to “provide safe and affordable marina facilities to [holders of berth licences at the Marina]”, “foster, promote and protect the[ir] interests” and “act in the best interests of the majority of the[m]”. It expressly may invest in “the purchase of Berth Licences at the Marina suitable for inclusion in the berth rental pool and/or for the efficient management of the Marina”, subject to provisos.
[6] Under s 384 of the Resource Management Act 1991, licences and permits granted under s 156 of the 1950 Act are deemed coastal permits “granted … by the appropriate consent authority”, here being the Regional Council with power to grant such as a resource consent. On 1 October 2015, the Regional Council granted the Society a coastal permit to occupy the Marina’s space and authorise its use and maintenance of associated structures. On 31 January 2018, in renewal of its contract with the Society for management of the Marina, the City Council vested the Marina’s floating structures in the Society to be held on trust for the City Council as beneficial owner.
[7] Among the issues intended for judicial review is the trustees’ allegation the Society’s dealings in berth licences since about 2016 are without its powers, essentially on the basis such dealing is for the City Council to perform in compliance with the 1981 Act (but also contended divergent from the terms of the contract(s) between the City Council and Society for management of the Marina).
Relevant law
—interim orders
[8] Under s 15 of the Judicial Review Procedure Act 2016, I may make interim orders “if, in [my] opinion, it is necessary to do so to preserve the position of the applicant”. ‘Position’ means a currently existing ‘right’ in law or fact, as may be
derived from the meaning of statutory or other public power open to challenge by judicial review.2 ‘Necessary’ means “reasonably necessary”.3
[9] I then have wide discretion to consider all the circumstances of the case in deciding if to grant interim relief, from consideration of the applicant’s case for trial, the strength of that case, and the balance of convenience and overall interests of justice in “all the repercussions, public or private, of granting interim relief”.4 Those factors may include “the extent to which the applicant retained the ability to obtain a remedy in the substantive judicial review proceedings”.5
—strike out
[10] Rule 15.1(a) of the High Court Rules 2016 entitles me to “… strike out all or part of a proceeding if it … discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading”.
[11] An application for strike out proceeds on the assumption the pleaded facts are true, and the impugned pleading so clearly untenable it cannot possibly succeed:6
[T]he jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material; but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction.
As such, the jurisdiction carries “a ‘heavy’ onus and … should be exercised only in exceptional circumstances”;7 “strike out is more concerned with what can and will be
2 Minister of Immigration v Kang [1993] NZAR 456 (CA) at 459–460, citing Nair v Minister of Immigration [1982] 2 NZLR 571 (HC); Forster v New Zealand Chiropractic Education Trust [2010] NZAR 361 (HC) at [38]; Walsh v Pharmaceutical Management Agency HC Wellington CIV-2007-485-1386, 28 August 2007 at [22]; and Internet Group Ltd v Attorney-General HC Wellington CP119/00, 4 July 2000 at [9].
3 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.
4 At 430, approved in Easton v Wellington City Council [2010] NZSC 10, (2010) 20 PRNZ 360 at [4]–[5]. See also Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3] and [8]; Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd v Royal Commission of Inquiry into Historical Abuse in State Care and in Care of Faith-Based Institutions [2024] NZCA 340 at [3]; and Westmoreland v Attorney-General [2025] NZCA 24 at [13].
5 Te Pou Matakana Ltd v Secretary for Māori Development [2025] NZCA 124 at [26].
6 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267 (citations omitted), endorsed in Carter Holt Harvey Ltd v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [10].
7 White v Attorney-General [2021] NZCA 479 at [43], citing Williams v Spautz (1992) 174 CLR 509 (HCA) at 529 and Goldsmith v Sperrings Ltd [1977] 1 WLR 478 (CA) at 498. Similarly, SPAK (1996) Ltd v Leroy [2022] NZCA 564, (2022) 23 NZCPR 769 at [169]–[170], citing Burns v
pleaded, rather than what has been pleaded”.8 The same principles apply to applications to strike out applications for judicial review.9
Discussion
—trustees’ application for interim orders
[12] I am unable to ascertain from the pleadings and evidence filed in relation to the trustees’ application for interim orders any position had by the trustees sought to be preserved, pending determination of their substantive application for judicial review, by prohibiting the Society from buying or selling berths, or licences for berths, at the Marina.
[13] The trustees plead they are licensees of a marina berth at the Marina. While pleading they accordingly are eligible for Society membership, they do not expressly plead to be such members. Neither do they expressly plead to be party to either of the two forms of licence agreements they plead as material to the proceeding. The evidence, however, is the trustees are members of the Society and licensed to occupy a berth in the Marina on terms of the licence agreements.
[14] Nor do the trustees expressly plead to be affected by the Society buying or selling berths, or licences for berths. Instead, their contention is the Society’s dealings in berths is “thereby using the berths for commercial purposes, as well as depriving persons on the waiting list of the opportunity to become licensees”. But there is no suggestion the trustees are among those so deprived.
[15] Instead, the interim order is sought on the basis the Society’s continued dealing in berths “threaten [the Society’s] financial viability”, because it “has paid for berth licences it cannot lawfully hold”. For the trustees, Gary Judd KC submits those
National Bank of New Zealand Ltd [2004] 3 NZLR 289 (CA) at [37], Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267, Smith v Fonterra Co-Operative Group Ltd [2021]
NZCA 552, [2022] 2 NZLR 284 at [38], Gartside v Sheffield, Young & Ellis [1983] NZLR 37 at
45 and Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641.
8 Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5 at [49], n 92, endorsing Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [123].
9 Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [16], citing Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63.
licences accordingly are “of no value to [the Society]”. He further argues, as the Society is said to lack power to sell or issue licences, it is liable to repay licence fees calculated in the “[m]illions of dollars”. On at least those bases, said to constitute the Society’s unlawful operation, he contends the Society risks liquidation or refusal of re-registration under the Incorporated Societies Act 2022.
[16] All that is founded on the assumption the trustees will be successful in relevant aspects of their substantive claim for judicial review; none is claimed with reference to any currently existing right had by the trustees. The trustees have their licence, whether or not valid, and there is no suggestion it may be affected by the Society’s dealings in other licences (such as are sought to be prohibited by the interim order). That the trustees have an interest in the outcome of the substantive proceeding, even if as members of the Society, is not enough; in the present disputed context, Mr Judd’s claimed justification for interim relief—“… further unlawful action should not be permitted to make the situation worse”—is conclusory and premature. Mr Judd’s alternative proposal for an interim declaration fails for the same reason.
[17] Without any position sought to be preserved, no interim order is available to the trustees. I therefore do not go on to consider the circumstances of the case, to decide if to grant interim relief necessary to preserve such a position. Had I to do so, I should have concluded the application’s sought disruption of nearly a decade’s operation by the Society, with indeterminate impact on third party actual and prospective licensees and for which the substantive proceeding would provide the trustees with adequate remedy if successful, was disqualifying of interim relief.
[18]I will dismiss the trustees’ application for interim orders.
—City Council’s application for strike out
[19] Assuming the trustees’ pleaded facts to be true for the purposes of the City Council’s strike out application,10 the trustees plead the City Council’s asserted vesting
10 The trustees’ pleading denies an allegation raised by the City Council in its defence to the trustees’ original pleading. From the position of that denial, the impugned pleading follows.
of the Marina’s floating structures in the Society to be “unlawful and invalid” on grounds including the 1981 Act:
… requires the Harbour Board, and therefore the [City] Council as its successor, to continue as owner to police the trading or the assignment of licences or other authorities conferring the right to use or occupy Marina berths.
On a construction of the pleading most favourable to the trustees, in which they plead the 1981 Act’s requirement partly to found the City Council’s “statutory responsibilities”, the trustees plead the City Council’s arrangements with the Society in respect of the Marina are deficient in particularised ways.11
[20] For the City Council, Sarah Armstrong KC submits, on repeal of s 156 of the 1950 Act, “there was no role left for s 7” of the 1981 Act. Mr Judd argues the 1981 Act “has full force and effect to identify [the City Council] as the only body having development and redevelopment, and licence granting authorities”.
[21] It accordingly is necessary to trace the applicability of the 1981 Act to the City Council.
[22]Section 150 of the Harbours Act 1950 provided:
150 Foreshores to be granted only under special Act—
Except as hereinafter provided, no part of the shore of the sea, or of any creek, bay, arm of the sea, or navigable river communicating therewith, where and so far up as the tide flows and reflows, nor any land under the sea or under any navigable river, except as may already have been authorised by or under any Act or Ordinance, shall be granted, conveyed, leased, or disposed of to any Harbour Board, or any other body (whether incorporated or not), or to any person without the authority of a special Act.
[23]Section 156 then relevantly provided:
156 Foreshore may be used and occupied for certain purposes—
A Board or local authority may from time to time … license and permit any land vested in it (being part of the foreshore or of the bed of the harbour or the sea) and any part of the bed of the harbour or the sea immediately contiguous to any such land included in the licence to be used or occupied for all or any of the following purposes:
11 I address the adequacy of the trustees’ pleading at [34] and following below.
…
(b) The erection and use of any boatshed, slipway, ramp, pipeline, pile, boat-grid, groyne, seawall, fence, mooring, landing place, or wharf:
…
(e) Any other purpose relating to the convenience of shipping or of the public, or for any local enterprise or object which the Governor-General by Order in Council, or the Minister may approve.
[24] The 1981 Act “is a special Act within the meaning of the Harbours Act 1950”.12 With effect from 20 October 1981, it vested specified parts of land in the Board,13 defining those parts as the Marina.14 It authorised the Board to develop the Marina “for the purposes of a boat harbour”,15 “boat harbour” being defined as meaning:16
… a harbour or part of a harbour or an anchorage used for the purpose of constructing, fitting out, mooring, sheltering, or servicing boats; and includes any land or building used in conjunction therewith and, without limiting the general import of that term, includes—
(a) any slipway, launching ramp, dock, pier, marina pier, quay, wharf, jetty, landing place, hoist, hoist-well, bridge, float, pontoon, boatshed, boat repair facilities, boatyard, breakwater, wave screen, embankment, marine service station, or fuelling pier or facility, facilities for the hire, sale, or dry storage of boats and for the sale of marine equipment and accessories, including ship’s chandlery, or any other boating or aquatic structure, service, or amenity for the use and convenience of the boating public; and
(b) any shop, restaurant, car park, club premises, or facility, or any other commercial or recreational amenity for the use and convenience of the general public as well as that of the boating public—
and reference to a boat harbour shall be deemed to be a reference to any part of any facility, structure, service, amenity, or use included in a boat harbour.
[25]Section 7 then provides:
7 Authority to license
(1) The Board may exercise the powers conferred on it by section 156 of the Harbours Act 1950 to license and permit any part or parts of the Tauranga Marina or any building, structure, or facility therein, to be used or occupied for boat harbour purposes, and in respect of any such licence the provisions of that section shall be deemed to be enlarged accordingly and any provisions of that section or of any other section of the Harbours Act 1950 which are inconsistent shall be deemed to be modified to the extent necessary to give effect to this section.
12 Bay of Plenty Harbour Board (Sulphur Point) Vesting and Empowering Act 1981, s 3.
13 Section 4.
14 Section 5.
15 Section 6.
16 Section 2, definition of “boat harbour”.
(2) Any licence granted pursuant to subsection (1)—
(a)may be for any period not exceeding 21 years or for an initial period including a right or rights of renewal which will not in the aggregate exceed 21 years, provided that the period may be extended beyond 21 years, but not exceeding 50 years, if the Board is satisfied that special circumstances exist requiring or justifying a longer term:
(b)may grant the right of exclusive use of the water space of any marina berth or pile mooring or the site of a swing mooring:
(c)shall be construed as a licence, any rule of law to the contrary notwithstanding:
(d)may provide for payment of service fees and for rentals and for those charges to be payable in advance and shall not be deemed in contravention of anything contained in section 118 of the Harbours Act 1950:17
(e)shall contain provisions regulating, controlling, or prohibiting the trading or the assignment of licences or other authorities conferring the right to use or occupy marina berths or pile or swing moorings or the sites thereof:
(f)may be granted notwithstanding that the licensed rights may interfere with or restrict any public right of navigation or the public convenience.
(3) Should the Board, pursuant to section 161 of the Harbours Act 1950, revoke any licence in respect of the Tauranga Marina granted or agreed to before or after the passing of this Act and which provides for refund of rental or fee paid in advance in certain events, then notwithstanding the provisions of the said section 161, the Board shall make to the licensee such refund as is provided for in the licence as if the revocation was such an event.18
[26] In the course of comprehensive local government reorganisation, cl 155(2) of the Local Government (Bay of Plenty Region) Reorganisation Order 1989 vested property “vested in the … Board as at the 31st day of October 1989” in “the territorial authority, in whose district it is situated”. By ‘property’, the subclause included “a marina, wharf, jetty, boat ramp or other harbour facility, used principally for recreational purposes” and items of “plant or equipment used principally in association with the maintenance, use or operation” of those facilities. Notwithstanding cl 155(2), cl 155(6) vested “any land vested in the … Board as at the 31st day of October 1989
17 Section 118 of the 1950 Act exempted particular vessels (including “[p]leasure yachts (being ships however propelled used exclusively for pleasure and not carrying goods or passengers for hire)”) from harbour dues (with exceptions).
18 Section 161 of the 1950 Act entitled the Board “at any time during the currency of any licence granted under the authority of section 156” to “revoke the licence … without payment of compensation or liability to any action or claim for damages in respect of the revocation” on three months’ notice with proportionately abatable rent.
and which is below the mean high water mark” in the Regional Council. Subsequently, the effect of the Marine and Coastal Areas Act (Takutai Moana) 2011 was to divest the Councils “of every title as owner … of any part of the common marina and coastal area”,19 relevantly being below “mean high-water springs”,20 while the City Council continued to have any interest in appurtenant structures as “personal property”.21 So far as the Marina is concerned, except for land below the mean high water mark or springs, the Board’s recreational harbour facilities thus were vested in the City Council (as the territorial authority became).22
[27] Comprehensive reorganisation also of coastal marine controls was pursued under the Resource Management Act 1991, in part by restricting other than permitted activities in the coastal marine area, except with a resource consent (a “coastal permit”) issued by the relevant consent authority.23 Section 384(1) of the 1991 Act relevantly provides:
Every—
…
(b) licence or permit granted under … section 156 … of the Harbours Act 1950 …
…
in respect of any area in the coastal marine area, being a … licence … in force immediately before the date of commencement of this Act, shall be deemed to be a coastal permit granted under this Act on the same conditions (including those set out in any enactment, whether or not repealed or revoked by this Act, except to the extent that they are inconsistent with the provisions of this Act) by the appropriate consent authority; and the provisions of this Act shall apply accordingly.
Section 425(3) also relevantly provides:
Except as provided in section 384(1)—
(a) every licence or permit granted under … section 156 … of the Harbours Act 1950; …
… —
19 Marine and Coastal Areas Act (Takutai Moana) 2011, s 11(3).
20 Section 9(1), definition of “marine and coastal area”.
21 Section 18(3).
22 Local Government (Tauranga City Council) Order 2003, cl 3.
23 Resource Management Act 1991, ss 12, 87 and 87A.
shall, notwithstanding the amendment of that Act by this Act, continue in force after the date of commencement of this Act on the same conditions and with the same effect as if that Act had not been so amended.
The 1991 Act also amended the 1950 Act by repealing (among other provisions) its ss 150 and 156.24 (The balance of the 1950 Act ultimately was repealed by s 10 of the Local Government Amendment Act (No 2) 1999.)
[28] The question, therefore, is if the 1991 Act’s amendment of the 1950 Act—to repeal its ss 150 and 156—had any impact on the 1981 Act, on which the trustees rely in part for their claim to judicial review of the City Council’s exercise of public or statutory powers.
[29] Section 7(1) of the 1981 Act only is derivative of powers conferred by s 156 of the 1950 Act. It does not establish any standalone power to license and permit use of the Marina for the purposes of a boat harbour, but instead deems s 156 to be “enlarged accordingly”. ‘Enlargement’ was at least desirable given the absence of any express reference in the 1950 Act to licensing of use for the purposes of a boat harbour (to avoid doubt, if not empowered by s 156’s purposes).
[30]To that degree, s 7 is distinct from s 6, which provides:
Subject to Part 20 of the Local Government Act 1974, the Board may develop and redevelop from time to time the whole or any parts of the Tauranga Marina for the purposes of a boat harbour and may, subject to the Harbours Act 1950, carry out all such works as may be necessary for that purpose, and all such works shall be deemed to be harbour works for the purposes of the Harbours Act 1950.
Although ss 6 and 7 of the 1981 Act are titled “Authority to …” respectively develop and license, only s 6 provides standalone authority to develop and redevelop a boat harbour (albeit subject to Part 20 of the Local Government Act 1974, and to and deemed harbour works for the purposes of the 1950 Act); s 7 expressly relies on the powers conferred on the Board by s 156 of the 1950 Act.
[31] However, notwithstanding repeal of s 156 of the 1950 Act, while s 384 of the 1991 Act deems licences granted under s 156 of the 1950 Act coastal permits issued
24 Section 362.
by the relevant territorial authority on the same conditions as the licence, those licences also continue in force—again, on the same conditions—under s 425 of the 1991 Act. Section 7(2) of the 1981 Act thus continues to stipulate the mandatory and permissive content of licences granted by the City Council in relation to the Marina prior to 1 October 1991 (the commencement date of the 1991 Act). Given s 7(2)(a)’s 50-year maximum period for the grant of any such licence, it is at least in prospect there may be such licences continuing in force until 1 October 2041.
[32] Otherwise, s 7 of the 1981 Act has no residual function to perform, because there no longer are any powers conferred on the City Council by s 156 of the 1950 Act. Except in relation to any licences granted prior to 1 October 1991—as to which there appears no distinct pleading, the pleading focusing instead on licences commencing on or about 1 July 2000, said to expire on 30 June 2021, or issued since 1 July 2021—the trustees cannot plead the City Council’s exercise of public or statutory power under s 7. To that extent, the trustees’ claims are liable to be struck out, exactly because they are so ‘clearly untenable’ they cannot and may not be pleaded.
[33] The subject of judicial review is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.25 ‘Statutory power’ is defined, extending to a power or right conferred by or under “the constitution or other instrument of incorporation, rules, or bylaws of any body corporate”, with reference to specified “things”.26 Relief is consequential.27 Judicial review of other exercises of public power also is available at common law.28 But the fact an entity, such as the Society, is incorporated is not in itself a sufficient ground to render its every decision subject to judicial review.29 An organising principle for public powers susceptible to the supervisory jurisdiction of this Court is they be independent powers to regulate the
25 Judicial Review Procedure Act 2016, s 4.
26 Section 5.
27 Sections 17(1).
28 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [75], n 62, referring to Burt v Governor-General [1992] 3 NZLR 672 (CA) at 676 and 678. See also pt 30 of the High Court Rules 2016, and in particular r 30.2(b)’s reference to declarations in relation to “the breach … of a duty of … a person exercising public functions”.
29 Te Whakakitenga o Waikato Inc v Martin, above n 9, at [20], referring to Phipps v Royal Australasian College of Surgeons [1997] 2 NZLR 598 (HC) at 606–607 and Hopper v North Shore Aero Club Inc [2007] NZAR 354 (CA) at [11]–[12].
affairs of others. Such description catches the extent to which non-public entities may be susceptible to judicial review.30 That there may be private or public interest in an entity’s activities is insufficient.
[34] The trustees’ amended claim for application for judicial review is not well pleaded. Substantial portions of the amended claim make no factual allegation but instead assert conclusions contended open to being drawn, obtaining repeated responses from the City Council (and Society) it is not required to plead to such allegations as being of submission. It is difficult to discern from the pleading exactly what reliance the trustees place on s 7 of the 1981 Act as the source of any statutory power exercised by the City Council.
[35] In at least this respect, the scope of strike out sought is fraught. The City Council seeks strike out of paras 19–25, 46, 48(a), 49–51, 76–78, 86, 122–123, 132, 137, 140–141 and 144(a)–(b) of the trustees’ amended statement of claim. At paras 22–25, the trustees plead the City Council “as successor to the Harbour Board … has all the powers, authorities and duties conferred and imposed by s 7”. Seemingly in reference to s 7, the pleading contends the City Council “has no power to divest itself of the responsibilities it has succeeded to” or “to render it[self] incapable of discharging its responsibilities”, but in which it refers non-specifically to the 1981 Act. The trustees allege at paras 49–51 the City Council has failed appropriately to discharge its “statutory responsibilities” in the terms of its contract(s) with the Society, without better specifying those contended responsibilities. A particular focus of the trustees’ pleading (at para 48(a)) is s 7(2)(e)’s mandatory requirement any Marina licence granted under the 1950 Act’s s 156 contain “provisions regulating, controlling, or prohibiting the trading or the assignment of licences”, contended to constrain the City Council’s dealings with the Society. Many subsequent paragraphs appear particulars of alleged breach of such constraint, interspersed with seemingly standalone allegations of the Society’s breach of its own contended obligations under
30 See, for example, Stininato v Auckland Boxing Association Inc [1978] 1 NZLR 1 (CA); Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 11–12; and Hopper v North Shore Aero Club Inc, above n 29, at [9]–[10] and [12]. Although applicants in such cases may have contracted to be subject to powers exercised by such entities, those powers have independent foundation such that they cannot be adjusted exclusively between the applicant and the entity, justifying characterisation as ‘public’.
the 1908 Act or otherwise. Given the state of the pleading, I am unable to isolate precisely which paragraphs of the trustees’ claim impermissibly plead the City Council’s exercise of public or statutory power under s 7.
[36] To the extent any aspect of the trustees’ claim relies on s 7 of the 1981 Act as the source of any public or statutory power exercised by the City Council, as I have explained at [32] above, it cannot be pleaded. The City Council’s application for strike out extends to other aspects of the trustees’ pleading, including allegations it characterises as being to fraud and as to resource and building consents, the terms of its contract(s) with the Society and third party declarations. But each of those other allegations seem pleaded in some manner tied back to the trustees’ allegation of the City Council’s breach of its ‘statutory responsibilities’. For example, at para 179, the trustees plead the City Council “has failed to ensure that [the Society] had complied with its obligation to keep accurate and true accounts and has failed to exercise the powers it has to ensure compliance” (emphasis added). Similarly, the “fraud” allegations at paras 175–176 refer back to the City Council’s objectives in its contract(s) with the Society,31 which contracts the trustees plead at paras 49–51 to be the City Council’s “discharge of its statutory responsibility”; and the “resource and building consent” allegations include at para 173 an allegation the City Council “failed and/or refused to require” the Society to comply with its obligations under the contract(s). None of the declarations sought expressly engages with the exercise of any public or statutory power.
[37] On judicial review, this Court assesses if some identified public or statutory power is exercised “in accordance with law, fairly and reasonably”.32 ‘Fair’ and ‘reasonable’ are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational.33 If not so exercised, there is specified relief the Court may grant,34 and it generally is discretionary,35 if presumed in circumstances in which a claimant is substantially prejudiced by a public
31 See [5] above.
32 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
33 Stafford v Attorney-General [2022] NZCA 165 at [67] and [87]; Dunstan v Credit Union South
[2021] NZCA 656 at [23(c)].
34 Judicial Review Procedure Act, ss 16–19.
35 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
decision-maker’s error on exercise of its power.36 Available relief is focused on the impugned exercise of the power.37
[38] Without necessarily being prescriptive, an orthodox application for judicial review would specify:
(a)what specific right, obligation or interest had by the applicant is affected by a public or statutory decision-maker’s impugned conduct;38
(b)by reference to some specific statutory provision, what particular public or statutory power the decision maker is said to have exercised;
(c)which specific actions of the decision-maker are at issue as exercises of that power (and, if they are actions specified in a document issued by the decision-maker, what are those documents);39
(d)in relation to each such action, what of it is alleged not to be exercised in accordance with law, or to be unfair or unreasonable in a judicial review sense, and how; and
(e)with reference to s 16 of the Judicial Review Procedure Act 2016 or pt 30 of the High Court Rules 2016, what relief the applicant seeks the Court grant.
[39] As I have illustrated in part at [35] above, the trustees’ pleading sorely is deficient in at least those respects. There can be no controversy a statement of claim predominantly is to give ‘fair notice’ of the facts it alleges to found in law the relief sought;40 no different threshold applies to an application for judicial review.41 The
36 Air Nelson Ltd v Minister of Transport [2008] NZCA 26 at [61], referring to Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 (HC) at 122 and Unison Networks Ltd v Commerce Commission CA284/05 19 December 2006.
37 Judicial Review Procedure Act, ss 16(2) and 17(1).
38 Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094 at [2].
39 High Court Rules, r 5.20.
40 Morris v Halpin [2025] NZCA 223 at [9].
41 Reay v Attorney-General [2016] NZCA 519, [2016] NZAR 1672 at [16]–[18].
Court of Appeal endorses the approach advocated in the New Zealand Judicial Review Handbook.42
[40] Rule 5.26 of the High Court Rules 2016 requires a claim “show the general nature of the plaintiff's claim to the relief sought”, with “sufficient particulars … to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action”. The rules require pleadings to be divided into consecutively numbered paragraphs, each “so far as possible be[ing] confined to a single topic”;43 to set out “distinct causes of action … founded on separate and distinct facts … if possible … stated separately and distinctly”.44 “Fair notice” of the cause of action is required.45 Care is to be taken “to ensure the statement of claim is not a compendium of the evidence but a distillation of the facts essential to the claim”.46
[41] Given the pleading’s lack of clarity as to at least the source of public or statutory powers on which the trustees rely, the City Council’s alternative interlocutory application for the trustees to file and serve a more explicit statement of claim is justified.47 I will direct accordingly.
Result
[42]The trustees’ 5 September 2024 application for an interim order is dismissed.
[43] The City Council’s 19 February 2025 application is granted to the extent the trustees are to file and serve a more explicit statement of claim.
42 At [16], referring to Matthew Smith New Zealand Judicial Review Handbook (Thomson Reuters, Wellington, 2011) at 415.
43 High Court Rules, r 5.14.
44 Rule 5.17(1).
45 Rule 5.21.
46 Morris v Halpin, above n 40, at [10], citing Rule v Simpson [2017] NZHC 2154 at [39], Red Stag Timber Ltd v Juken New Zealand Ltd [2023] NZHC 2947 at [47], Reay v Attorney-General, above n 41, at [16], Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [84] and Cayman Spectrum (NZ) Co v Spark New Zealand Trading Ltd [2023] NZCA 428, (2023) 26 PRNZ 332 at [40].
47 Reay v Attorney-General, above n 41, at [13], referring to Andrew Beck Principles of Civil Procedure (3rd ed, Thomson Reuters, Wellington, 2012) at [5.4.3]: “In most cases, however, the court will order an amendment of the pleading rather than striking it out and leaving the party to try again if it is able to” (citing Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) and Pearce v Accident Compensation Corporation (1991) 5 PRNZ 297 (HC)).
Next steps
[44]I direct:
(a)with regard for [38] and [40] above, the trustees file and serve a more explicit statement of claim within 20 working days of the date of this judgment;
(b)any response be filed and served within 10 working days of service; and
(c)the proceeding thereafter be recalled in a civil callover list.
Costs
[45] In my preliminary view, as the unsuccessful party48—in this proceeding of average complexity,49 in which a normal amount of time is considered reasonable for each step50—the trustees should pay each the City Council and Society 2B costs and disbursements on their opposition to the application for interim orders and the City Council alone 2B costs and disbursements on its interlocutory application.
[46] If any party disagrees, and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages—annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate—to be filed and served by the City Council and Society within 10 working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
Counsel/Solicitors:
G J Judd KC, Kerikeri
S A Armstrong KC, AucklandK J Patterson, Barrister, Tauranga D P Weaver, Barrister, Tauranga Harris Tate Limited, Tauranga
Rice Spier, Auckland
48 High Court Rules, r 14.2(1)(a). 49 Rules 14.2(1)(b) and 14.3(1). 50 Rules 14.2(1)(c) and 14.5(b).
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