Pacific 7 Limited v Tauranga City Council
[2025] NZHC 876
•11 April 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2024-470-000208
[2025] NZHC 876
UNDER Local Government Act 2002, s 79 and Judicial Review Procedure Act 2016, ss 8 and 15 IN THE MATTER OF
An application for judicial review
BETWEEN
PACIFIC 7 LIMITED
Applicant
AND
TAURANGA CITY COUNCIL
First Respondent
TUMBLEHOME BAY LIMITED
Second Respondent
PACIFIC SAFE HARBOURS LIMITED
Third Respondent
Hearing: 25 February 2025 Appearances:
M S King and S P Connolly for Applicant
S V McKechnie and B S Clifford for First Respondent
J W A Johnson, S D Campbell and J W Murison for Second and Third Respondents
Judgment:
11 April 2025
JUDGMENT OF ANDREW J
This judgment was delivered by me on 11 April 2025 at 11 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
PACIFIC 7 LTD v TAURANGA CITY COUNCIL [2025] NZHC 876 [11 April 2025]
TABLE OF CONTENTS
Introduction [1]
Factual background [9]
Tauranga Moana [10]
The development of the Marine Precinct [15]
The Marine Precinct in 2025 [21]
Vessel Works [26]
The costs of operating the Marine Precinct [29]
Upgrade of Marine Precinct wharves and Fisherman’s Wharf [32]
Council decision-making about the Marine Precinct [35]
July–September 2019 [36]
October 2020 [39]
November 2020 [40]
December 2020 [42]
June 2021 [43]
September 2021 [45]
October 2021 [46]
November 2021 [47]
TCC’s December 2021 decisions [49]
March 2022 [52]
November 2022 [54]
December 2022 [55]
January 2023 [56]
July 2023 [57]
Asset Realisation Reserve [58]
Approach by TBL and PSHL to purchase the Marine Precinct [60]
Iwi engagement about the proposed sale [62]
Decision to divest the Marine Precinct [63]
Events of 2024 and decision to enter sale and purchase agreements with
TBL/PSHL [69]
Sale and purchase agreements with TBL and PSHL [74]
Engagement with stakeholders after execution of sale and purchaseagreements [80]
Change from Commissioners to an elected Council [82]
TCC decisions of engagement from October 2024 [83]
The statutory scheme of the LGA [91]
ANALYSIS AND DECISION
Application by TBL and PSHL to strike out [92]Application for rescission [110]
Should the interim orders continue?
Legal principles [126]
The context [128]
Is an interim order necessary to preserve Pacific 7’s position? [133] The discretion and the overall interests of justice [143] Compliance with statutory obligations under the LGA [144]
Alleged incorrect categorisation [159]
Natural justice [160]
Conclusion on the merits [163]
Interests of justice factors [165]
Conclusion — my overall assessment [172]
Result [173]
Introduction
[1] These are judicial review proceedings. The applicant, Pacific 7 Ltd (Pacific 7) challenges the decision of the Tauranga City Council (TCC/the Council) to sell the Tauranga Marine Precinct (Marine Precinct/the Precinct) to the second and third respondents, Tumblehome Bay Ltd (TBL) and Pacific Safe Harbours Ltd (PSHL). TBL and PSHL are to develop a superyacht refit facility on the site. At issue are the consultation obligations of TCC under the Local Government Act 2002 (LGA).
[2] In November 2024, I granted interim orders under s 15(1) of the Judicial Review Procedure Act 2016, restraining the sale.1 Those orders were granted on a Pickwick basis. At very short notice, TCC elected not to oppose the interim orders, but on a temporary basis only. A principal issue I now need to determine is whether those interim orders should continue.
[3] The Marine Precinct is a TCC-owned marine servicing hub for commercial and recreational vessels. It is located at Sulphur Point on the north side of the Tauranga Harbour Bridge. It includes several on-site marine providers to provide haul-out, wash, maintenance, repair and refit services for vessels. The Precinct has deep water access to the Tauranga Harbour and contains berthage facilities.
[4] Pacific 7 has been a long-term user of the Marine Precinct. It owns and operates “black boats”. “Black boat” is a term that includes commercial fishing boats and working boats, such as tugboats and marine engineering vessels.2 By contrast, “white boats” are recreational vessels, including superyachts. The director of Pacific 7, Mr Sean Kelly, played a key role in the establishment and development of the Marine Precinct and has had a long association with it.
[5] Pacific 7 says that, as a result of TCC’s failure to comply with its statutory and common law obligations of consultation, TCC has failed to make an informed decision about the sale of the Marine Precinct. It says that TCC is misinformed about:
1 Pacific 7 Ltd v Tauranga City Council HC Tauranga CIV-2024-470-208, 21 November 2024 (Interim Orders).
2 Black boat operators that use the Marine Precinct primarily do so to access berthage at Bridge Wharf, load and unload cargo at Cross Road Wharf and haul out and fitout services.
(a)the size of the black boat fleet that would be displaced by the sale, and how many of those black boats cannot fit under the Harbour Bridge to access Fisherman’s Wharf (i.e. the proposed alternative);
(b)the lack of alternative berthage, loading and unloading, refuelling and ice facilities for the black boats that cannot fit under the Harbour Bridge; and
(c)the short and long-term unsuitability of the proposed alternatives, including the use of Fisherman’s Wharf and the Port of Tauranga.
[6] In the substantive proceedings, Pacific 7 seeks relief that includes orders setting aside TCC’s decision and the sale and purchase agreements themselves.
[7] In the present interlocutory applications, the second and third respondents seek orders:
(a)rescinding the initial interim orders on the grounds of material non-disclosure; and
(b)striking out the whole of the proceedings on the grounds of an abuse of process. It is said that the proceedings have been brought for the predominant improper purpose of triggering a discretionary cancellation clause by TCC in the sale and purchase agreement.
[8] If those two applications are not successful, then I will need to determine the interim orders application on a de novo basis.3 Having previously agreed to the interim orders on a temporary basis,4 TCC now opposes their continuing in force. The principal issues are whether, under s 15(1) of the Judicial Review Procedure Act, an interim order is necessary to preserve the position of Pacific 7 and whether, as a matter of discretion, it should be declined.
3 In my minute of 6 December 2024, I directed that the hearing in February 2025 would deal with the entirety/totality of the interim orders.
4 See Interim Orders, above n 1, at [9].
Factual background
[9] It is necessary to set out the relevant events in some detail. As Mr Johnson, for TBL and PSHL submitted, the particular procedural steps taken by TCC are critical to addressing the key substantive issue of whether TCC made a sufficiently informed decision to dispose of the Marine Precinct.
Tauranga Moana
[10] The Marine Precinct covers approximately 2.98 hectares, including some privately owned parcels of land. A map of the Precinct and the wider Tauranga Harbour is reproduced as the appendix to this judgment.
[11] The Precinct is zoned for port industry. It includes a substantial amount of undeveloped land. Pacific 7 was previously a landowner in the Precinct.
[12] Sulphur Point, the location of the Marine Precinct, is a piece of land that juts out into the harbour. It includes a number of marine-related facilities, including jetties, boat launching ramps, and boat storage.
[13] Sulphur Point and the wider Harbour provide the facilities to support the commercial fishing and aquaculture industries within the Bay of Plenty. This includes public wharves offering short or long term berthage and areas for offloading catch and loading ice.
[14] One of the facilities is Fisherman’s Wharf, which is located on the south side of the Tauranga Harbour Bridge, close to Tauranga City. That wharf is only suitable for vessels that have folding masts or are able to safely navigate under the Harbour Bridge. It provides long term berthage and a location for the unloading of catch. The suitability of Fisherman’s Wharf for the black boat fleet is at issue.
The development of the Marine Precinct
[15] The land on which the Marine Precinct is located was originally owned by the Port of Tauranga. In 2004, when the construction of the second Tauranga Harbour Bridge commenced, TCC needed to purchase part of the Marine Precinct land from
the Port of Tauranga to provide for a slip lane onto the Bridge. That was part of a Harbour Link roading project. At that time, TCC decided to also acquire the remaining land parcel not specifically needed for the roading project to develop for future marine use. The purchase of the land was a commercial strategic decision to ensure the land was retained and developed for marine-related purposes.
[16] To ensure the majority of the site was developed and operated for future marine use, the site was sold with land covenants. They require the land to be used predominantly for “Marine Related Activities”.5
[17] At the time of purchase, the land had a fishing, loading and unloading wharf and a commercial boat ramp. TCC started planning for the initial development of the Precinct between 2004 and 2007.
[18] TCC progressed with the initial development of the Marine Precinct from 2014. This included consulting on the first stage of the proposed development of the Precinct as part of the 2014–2015 Annual Plan process.
[19] The strategic vision for the Marine Precinct set by TCC in 2015 was the first of a number adopted by TCC. A consistent theme has been using the Marine Precinct to provide servicing for the marine industry as a whole and to attract and grow the economic return of the marine sector for Tauranga.
[20] Mr Kelly and Pacific 7 have been using the Bridge Wharf since 1995 and have since relied on the facilities at the Marine Precinct. This has included the berthing of vessels and the loading and unloading of goods.
5 “Marine Related Activities” are defined in Annexure Schedule 1 to the Covenant as: “Marine Industry operations or activities the predominant purpose of which is to provide goods and/or services to the marine industry, and includes but not by way of limitation, boat haulage and storage, water blasting, sand blasting, painting, refurbishment, re-fitting, loading and re-loading of boats or vessels, warehousing and other storage related to the Marine Industry, marine electronics, engineering, fabrication and manufacturing, boat building and repair, chandlery, boat storage, cafes, restaurants and shops serving the Marine Industry and visitors to marine industry facilities.”
The Marine Precinct in 2025
[21] The Marine Precinct now provides haul-out, washing, berthage, and storage facilities. These include a 6,300 m2 hardstand, a large travel lift and vessel hoist capable of hauling vessels up to 350 tonnes, a refit wharf, a washdown pad, and deep-water marina berths. The Marine Precinct is also a place of first arrival and a transitional facility, meaning that vessels arriving in New Zealand can clear Customs at the Precinct.
[22] Pacific 7 is one of the many marine businesses that currently use the Marine Precinct.6 Other users include the commercial fishing fleet (black boats), including RMD Marine Ltd, Eco Marine Holdings Ltd, Oceanic Fishing Ltd, Two Way Fishing Ltd, and Oceanic Charters Ltd.7
[23] Another user, Sunchaser Freight Ltd, owns and operates a barge called Deliverance. The barge provides transportation services to Motiti Island and services the large avocado orchard located there. Deliverance has been berthed at Bridge Wharf in the Marine Precinct since it was brought to Tauranga in 2004.8
[24] A Pacific 7 vessel, the White Lady, is currently undergoing a large refit in the Vessel Works hardstand. It has a 27-metre mast and cannot fit under the Harbour Bridge.9
[25] The Tauranga Barge Company Ltd owns and operates the barge called the MV Skookum — a 30-metre roll on/roll off vehicle barge. It operates from Bridge Wharf and services the forestry industry on Matakana Island.10
6 In the affidavit of Ms Erika Harvey filed in support of the interim orders and sworn on 21 November 2024, it is recorded that 95 per cent of Pacific 7’s work is “black boat” work. The extensive use of the Marine Precinct by Pacific 7 is set out in the affidavit of Mr Sean Kelly.
7 Mr Daniel Rawlinson, director and shareholder of RMD Marine Ltd and shareholder of Eco Marine Holdings Ltd, has sworn an affidavit in support of the applicant. So, too, has Mr Robert Kusabs, director and shareholder of Oceanic Fishing Ltd, Two Way Fishing Ltd and Oceanic Charters Ltd.
8 Mr Mark Yortt, director of Sunchaser Freight Ltd, has sworn an affidavit in support of the applicant.
9 In his affidavit, Mr Kelly says that Pacific 7 has intentions to purchase a very large non-powered barge (approximately 70 metres long) and a combination large tug of approximately 30 metres in length.
10 Mr Philip Taylor, director of Tauranga Barge Company Ltd, has filed an affidavit in support of the applicant.
Vessel Works
[26] Vessel Works, a TCC-owned entity established in 2018, oversees the day-to-day access and management of the Marine Precinct. The business is managed by a contractor who reports directly to TCC management.
[27] Vessel Works allows all customers to enter the Precinct and access services, as long as they have a service agreement in place with Vessel Works, have completed a site-specific induction before entry, and supply proof that they hold specific and valid liability insurance to a nominated value.
[28] The Vessel Works service agreements operate on a month-to-month and ongoing basis. They can be cancelled by either party with 10 days’ notice.
The costs of operating the Marine Precinct
[29] TCC says that the Marine Precinct has been consistently operating at a net loss to it since 2018. Council records show that TCC has sustained an average loss of
$1.5 million per annum over the last five years.
[30] In 2024, as part of the 2024–34 Long Term Plan, TCC adopted the Revenue and Financing Policy 2024 (R&F Policy), which sets out the funding sources and reasoning for TCC’s activities over the next 10 years. The R&F Policy records that “user fees” are the key funding source for the Marine Precinct, which reflects the private benefit of an activity.
[31] The draft policy, which was publicly consulted on, and the final adopted R&F Policy record “[TCC]’s intention to dispose of the Marine Precinct prior to 1 July 2024, and therefore disestablish [the] activity” and that “in the event of a delay, the intended funding of the activity is as shown” in the R&F Policy.
Upgrade of Marine Precinct wharves and Fisherman’s Wharf
[32] TCC says that the Bridge and Cross Road Wharves within the Marine Precinct are “nearing the end of their life”. They require significant upgrades and ongoing maintenance to ensure they can be operated safely in the long term.
[33] In May 2024, the need for wharf infrastructure upgrades to continue to support black boat operators was outlined in a TCC report prepared by TCC officers, dated 20 May 2024. TCC subsequently committed up to $37 million for the development of an alongside floating wharf, the replacement and upgrade of Bridge Wharf within the Precinct, and the replacement and upgrade of Fisherman’s Wharf. It was decided that a portion of the funding for these upgrades was to come from the sale of the Precinct.
[34] These wharves will continue to be owned by TCC post the sale of the Marine Precinct and TCC is, therefore, responsible for the upgrade and replacement of the wharf structures. The developer, TBL, will be responsible for the annual maintenance programme of the Bridge and Cross Road Wharves within the Marine Precinct. This is recorded in the Development Agreement (defined below at [73]).
Council decision-making about the Marine Precinct
[35] Prior to its decision to divest the Marine Precinct, TCC completed a range of work to consider issues and options for the Precinct over the period of 2019 to the end of 2022. A number of these work streams overlapped and ran in parallel to one another.
July–September 2019
[36] In 2019, TCC began planning the next stage of development for the Marine Precinct. This was intended to be informed by a strategic review of the operations of the Precinct as part of establishing a strategic plan for all marine facilities. To assist, TCC procured a review of the Marine Precinct in 2019 by Max Pedersen Consulting (the Pedersen report). That involved engagement with the Marine Precinct users about the then operations of the Precinct and how well TCC had delivered on its undertakings made to stakeholders, users, and investors of the Marine Precinct.
[37] The Pedersen report found that TCC had developed the Marine Precinct in accordance with undertakings it made to stakeholders, users, and investors. It recommended the establishment of a Marine Precinct Advisory Group (MPAG) to
provide a forum for stakeholders and users of the Marine Precinct to discuss operational matters and issues.
[38] The recommendation was actioned by TCC in July 2019 and the MPAG met nine times throughout the course of 2019 to 2021. Mr Kelly was a member of that Group.
October 2020
[39] On 6 October 2020, TCC officers presented and recommended to elected members a proposed workplan to develop a Marine Precinct Facility Strategy and a Marine Facilities Development and Management Plan (Marine Facility Strategy Plan). The Marine Facility Strategy Plan highlighted the need to engage with marine users and stakeholders to fully understand how those groups wished to use Tauranga’s marine infrastructure, including access, berthage, and operations.
November 2020
[40] In November 2020, TCC engaged Ernst and Young (EY) to undertake an operating model review of the Marine Precinct and to investigate alternative models for the Precinct. TCC was concerned that the Marine Precinct’s existing operating model was not fit for purpose. As part of this work, discussions with Vessel Works and TCC stakeholders occurred. This review ran in parallel to the Marine Facility Strategy Plan.
[41]The EY review was discussed at a MPAG meeting on 29 April 2021.
December 2020
[42] TCC’s Significance and Engagement Policy (SEP) was revised in December 2020.11
11 Section 76AA of the Local Government Act 2002 requires every local authority to adopt a SEP setting out, among other things, its general approach to determining the significance of decisions, and its criteria or procedures to be used in assessing the extent to which decisions are significant. The purpose of the SEP is to enable the local authority and communities to identify the degree of significance attached to particular decisions, and to provide clarity about when communities will be engaged in decisions and to what extent.
June 2021
[43] As part of considering its options for developing the Marine Precinct, TCC commissioned TwentyTwo Consultants (TwentyTwo) in June 2021 to assess and provide future development and operating model options for the Marine Precinct.
[44] TwentyTwo’s initial findings report, presented to TCC in August 2021, identified groups of key stakeholders that should be engaged with as part of the Marine Precinct spatial planning work.
September 2021
[45] TwentyTwo undertook the engagement discussed in its initial findings report throughout September 2021. TwentyTwo met individually with Marine Precinct stakeholders throughout this period. These included Mr Kelly, as director of Pacific 7, and the Harvey Family Fishing Group.
October 2021
[46] EY’s October 2021 report found several deficiencies with the operating model and presented to TCC a full or partial divestment of the Marine Precinct as one of the options to address the identified inefficiencies.
November 2021
[47] On 25 November 2021, TwentyTwo presented its Spatial Plan and Economic Assessment Report (the update report) to the Commissioners.12
[48] In parallel to the TwentyTwo workstream, the development of the Marine Facility Strategy Plan was underway. As part of this, engagement was undertaken with users of the Marine Precinct, alongside wider community and iwi engagement. The engagement was in the form of one-on-one meetings and publicly available surveys.
12 From February 2021 to July 2024, four Commissioners were appointed to TCC in place of a mayor and councillors, following “significant governance issues” with TCC; “Appointment of Commission to Tauranga City Council” (5 February 2021) New Zealand Gazette No 2021-go384; and “Termination of the Current Commission and Appointment of a Further Commission to the Tauranga City Council” (21 April 2022) New Zealand Gazette No 2022-go1531. Also see below at [82].
TCC’s December 2021 decisions
[49] At a TCC meeting on 13 December 2021, the TwentyTwo update report, EY report, and advice from Council officers were tabled and discussed and TCC made several decisions. In summary, the key decisions included:
(a)agreeing a Marine Precinct vision;
(b)adopting a second TwentyTwo spatial concept plan; and
(c)agreeing to approach Quayside Holdings (the investment arm of the Bay of Plenty Regional Council) with the intention of investigating a potential sale of the Marine Precinct and assets to Quayside Holdings.
[50] TCC classified its December 2021 decisions as being of “high significance” under its SEP.
[51] From January to March 2022, TCC ran several waterfront workshops as part of developing a City Centre Action and Investment Plan. TCC envisaged at that time that the Marine Precinct could be a superyacht commercial area, to provide both economic benefits and interests to the Tauranga city centre.
March 2022
[52] On 24 March 2022, a Consultation Document and supporting material for the 2021–31 Long-Term Plan Amendment were adopted by TCC. The Consultation Document records that TCC may investigate assets sales, including of the Marine Precinct.
[53] TwentyTwo held a workshop with Marine Precinct stakeholders on 31 March 2022 to report back on TCC’s December 2021 decisions. Their presentation highlighted that TCC was “working through the best ownership and development entity” and that covenants would be put in place to protect any decisions made.
November 2022
[54] In November 2022, TwentyTwo met with key Marine Precinct users to get their views on the specific requirements for the Precinct, who they would like to see run the Precinct in the future, and the potential parties that might be interested in operating the Precinct.
December 2022
[55] TwentyTwo provided its Comparison of Future Development and Operating Model Options Report (Options Report) to TCC in December 2022. The report stated that stakeholders generally supported the development and operation of the Precinct by a more “commercial” entity, being either a TCC-controlled trading organisation or a private company. The Options Report also contained a range of options for future operating models of the Marine Precinct, informed by the engagement that TwentyTwo had with key Precinct stakeholders. Option 5 in the report was to sell the land (with covenants) to a third party to develop and operate the Marine Precinct.
January 2023
[56] After receipt of the Options Report in December 2022, TCC officers approached a company providing boat haul-out and re-fit services to see if they were interested in purchasing the Marine Precinct. The conversations did not progress further.
July 2023
[57] TCC officers approached Superyacht Coatings International Ltd (SYC) to discuss with them the potential for SYC to use their contacts to identify and approach businesses in the industry that might have an interest in purchasing the Marine Precinct. Those conversations did not result in an approach from a business to progress sale and purchase negotiations.
Asset Realisation Reserve
[58] In July 2023, Council officers provided advice to TCC, proposing the creation of an Asset Realisation Reserve (ARR). This was approved by TCC on 24 July 2023. The ARR is used by TCC to identify and manage assets pending potential divestment, and then to hold the resulting proceeds of any sale. The Marine Precinct was identified as one of the properties to be managed by the ARR.
[59] TCC classified the decision to create the ARR as a decision of “low significance” in terms of its SEP.
Approach by TBL and PSHL to purchase the Marine Precinct
[60] In August 2023, Mr Sam Rofe of TBL approached a TCC staff member with a proposal to purchase the Marine Precinct for the purposes of creating a leading superyacht refit destination.
[61]TCC staff subsequently met with Mr Rofe to discuss his proposal.
Iwi engagement about the proposed sale
[62] In October 2023, TCC staff notified the mana whenua of the proposed sale of the Marine Precinct to TBL and PSHL. Mana whenua were invited to an online hui, which occurred on 17 October 2023.13
Decision to divest the Marine Precinct
[63] On 27 November 2023, Council staff provided a report to TCC (the November 2023 report) and sought approval from TCC to progress the divestment of the Marine Precinct. TCC adopted its officers’ recommendation that the Marine Precinct was to be classified as a strategic disposal under the Council’s Property Acquisitions and Disposal Policy.
13 Representatives of Ngāti Tapu, Ngāti Pūkenga, Otamataha Trust, Ngāti Ranginui, Ngai Tamarawaho, and Ngāi Te Rangi were present at the hui.
[64] The November 2023 report from TCC officers set out the prospective purchasers’ (TBL and PSHL) proposal for the Precinct and the reasons for disposal. These included that the specialised nature of the marine sector falls outside of TCC’s core business and that future development and management of the site for marine use best sits with the private sector.
[65] TCC officers applied TCC’s SEP to the decision to progress the proposed sale of the Marine Precinct. The Council officers took the view that it was of “medium significance” under the SEP. They also noted that, for TCC, the Marine Precinct is not a “strategic asset” under the SEP. Therefore, it did not need to be consulted on as part of a long-term plan process.
[66] The Marine Precinct activity has never been considered a “strategic asset” by TCC under any preceding SEPs, including the policies adopted in 2014, 2009, and 2006. TCC has never considered the Marine Precinct to be a “strategic asset” in the sense that many other TCC assets are considered to be.14
[67] TCC says that, given this classification, and considering the engagement process previously undertaken by TCC officers with stakeholders, the officers considered that TCC had sufficient information to understand the views and preferences of stakeholders for the Precinct. TCC decided that further engagement was not required.
[68] At the 27 November 2023 meeting, TCC delegated to its Chief Executive the authority to develop, negotiate, and execute on TCC’s behalf a Memorandum of Agreement between TCC and the purchaser, TBL/PSHL. This was with the intent of guiding the negotiation of terms and conditions for a potential divestment of the Marine Precinct.
Events of 2024 and decision to enter sale and purchase agreements with TBL/PSHL
[69] TCC officers prepared an internal draft memorandum in January 2024, which included an assessment of how current users access the Marine Precinct and the likely
14 For example, assets listed as “strategic” in the SEP include critical city-wide infrastructure, such as TCC’s library, open space, roading, stormwater, and wastewater networks.
impact of a sale on that usage. The memorandum also identified alternative options to accommodate black boat operators who might be displaced from the Precinct post-sale. TCC says that the assessment of this option influenced its decision to prioritise the replacement and upgrade of Fisherman’s Wharf and other Precinct wharf structures to provide for the black boat operators. The memorandum remained in draft form and was understood by internal staff to be a summary of known information.
[70] In a report tabled at a TCC meeting on 8 April 2024, TCC officers informed TCC that an agreement had been reached with the purchaser (TBL/PSHL) on key terms in the sale and purchase agreement. The officers recommend that TCC divest the Marine Precinct and Vessel Works business to TBL and PSHL.
[71] At the 8 April meeting, TCC made the decision to delegate to the Chief Executive the authority to sign the sale and purchase agreements of the Marine Precinct land and the Vessel Works business.
[72] On 22 April 2024, TCC adopted its 2024–34 Long-Term Plan. Consultation on the 2024–34 Plan had been completed from 15 November to 15 December 2023. That Long-Term Plan includes an extract of the R&F Policy 2024 which refers, in a footnote, to the sale of the Marine Precinct.
[73] On 20 May 2024, a report produced by TCC officers about the funding for upgrades and replacements of wharf infrastructure was provided to TCC. The report noted the need for wharf infrastructure upgrades to continue to support black boat operators. As noted above at [33], TCC subsequently committed up to $37 million for the developments and upgrades at the Marine Precinct and at Fisherman’s Wharf. It was decided that a portion of the funding for these upgrades was to come from the sale of the Precinct.15
15 The wharves will continue to be owned by TCC post the sale of the Marine Precinct and TCC is therefore responsible for the upgrade and replacement of the wharf structures. TBL, as the developer, is to be responsible for the annual maintenance programme of the Bridge and Cross Road Wharves within the Precinct. This is recorded in the Development Agreement.
Sale and purchase agreements with TBL and PSHL
[74] The sale and purchase agreements for the Marine Precinct were signed on 22 May 2024. These take the form of two interdependent agreements for the sale of the Precinct land (Development Agreement) and the Vessel Works business (Business Agreement).
[75] The Development Agreement contains a lease-back provision, requiring TBL to lease a section of the Precinct containing the Bridge and Cross Road Wharves back to TCC for up to three years (Lease-back Provision). TCC says that the purpose of the Lease-back Provision is to assist with an appropriate transition period for existing Marine Precinct users to find and secure other berthing and loading/offloading locations, while still being able to use the Precinct.
[76] Clause 24.1 of the Further Terms of Sale in the Development Agreement requires TBL to design, construct, and complete development of the Marine Precinct in accordance with specific strategic objectives in order to ensure the needs of the wider marine sector in Tauranga are considered in the development. This includes the strategic objective that the purpose-built marine service facility is accessible to all marine operators.
[77] Under the Development Agreement, upon completion of the new wharf structures, ownership of the new wharves will vest in TCC and TBL. TCC must then agree to a management arrangement over the wharves for TBL to use, operate, and maintain.
[78] The Development Agreement, with TBL as purchaser, records a purchase price of $13,987,000.
[79] The Further Terms of the Business Agreement provide for cancellation of the agreement in cl 24.1(b):
(b) If any time before the Settlement Date, an injunction proceeding is issued or any court order granted preventing the sale and/or registration of a transfer in pursuance of this Agreement, the Vendor will be entitled, by notice in writing to immediately cancel this Agreement.
Engagement with stakeholders after execution of sale and purchase agreements
[80] In late May 2024, TCC staff met one-on-one with Marine Precinct stakeholders to inform them of the sale and what that might mean for the future of the Marine Precinct, and to discuss their future needs and alternative options.
[81] On 19 September 2024, Council staff met with the Taumata Kahawai Governance Group (previously known as the Dive Crescent Governance Group) to discuss design considerations for the replacement of Fisherman’s Wharf.
Change from Commissioners to an elected Council
[82] In mid-2024 local Council elections were held for Tauranga. In July 2024, the appointed Commissioners, who were in place for over three years from February 2021 to July 2024, were replaced by a democratically elected mayor and councillors.16
TCC decisions of engagement from October 2024
[83] In an Extraordinary Meeting on 23 October 2024, the newly elected Council discussed the decision made by the Commissioners to sell the Marine Precinct. A report was provided by TCC officers to elected members ahead of the meeting (the October 2024 report). That included a report on the engagement undertaken by TCC with Marine Precinct stakeholders and details of the sale to TBL and PSHL. It was recorded in the October 2024 report that some black boat operators would not be accommodated at the Precinct post-sale. To that report, TCC officers attached a document setting out relocation options for the black boat community.
[84] Key Marine Precinct stakeholders were invited to attend and speak at the meeting. They were invited to present their views on the sale of the Precinct and future options. Mr Kelly, one of the stakeholders, spoke at the meeting.
[85] At the meeting, TCC decided to continue exploring options to help meet the cost of wharf infrastructure and to support Tauranga’s black boat community. Following those decisions, a further discussion took place between the elected
16 See above n 12.
councillors. This resulted in an amended set of resolutions by majority vote. They were:
That the Council:
(b)Notes the following:
i.That the sale process undertaken by the Commission may not have followed Section 4.1 of Council’s Acquisitions and Disposals Policy and Section 82 of the Local Government Act.
ii.The advice given to councillors that there were no commercially viable alternatives appears to have been wrong.
iii.This disposal writes off approximately $16 million in the asset value and also requires an additional spend of $37 million or more on wharf upgrades, without yet securing an optimal solution for Tauranga’s fishing community.
(c)Resolves that the sale proceeds will be used to repay debt on the Marine Precinct activity, and not be used to fund other capital projects.
[86] By joint memorandum dated 5 December 2024, TCC advised that it had agreed with the parties that it would not attempt to exercise any asserted rights of cancellation of the Development and Business Agreements with TBL and PSHL until after the determination of the present interlocutory application for rescission (provided the hearing could occur by the end of March 2025 at the latest).17
[87] In December 2024, Tauranga Mayor, Mahé Drysdale, wrote to the fishing and working boat community in Tauranga, inviting them to share their views on viable alternative options for the community as a result of the divestment of the Marine Precinct.
[88] A meeting was subsequently held on 4 February 2025 and was attended by the Mayor, several councillors and TCC representatives, and approximately 20–25 members of the fishing and working boat communities. Mr Kelly attended the meeting.
17 See [3] of the joint memorandum of the parties dated 5 December 2024.
[89] Attendees were informed that the purpose of the meeting was to hear their views and preferences on viable alternative options for Tauranga’s black boat community and to help inform the decisions TCC might make about how it might be able to support their businesses. Three options for future access were canvassed: access to Fisherman’s Wharf (south of the Harbour Bridge), access to Sanford’s Wharf (north of the Harbour Bridge), and the possibility of re-negotiating with TBL and PSHL about accommodating the black boat community within the existing Marine Precinct.
[90] At a meeting on 10 February 2025, TCC resolved to oppose the application for interim orders and to abide the Court’s decision on the recission and strike-out applications.
The statutory scheme of the LGA
[91]I adopt the following paragraphs from the recent Court of Appeal decision,
Thorndon Quay Collective Inc v Wellington City Council:18
Overview of decision-making under the LGA
[27] … By way of brief overview, the LGA requires all local authorities to conduct their business in an open, transparent and democratically accountable manner.19 This includes, among other things, making themselves aware of, and having regard to, the views of the various communities within their district or region.20 One of the ways in which the LGA promotes democratic decision-making is by providing a framework for effective decision-making and community consultation. Specifically, pt 6 of the LGA (“Planning, decision-making, and accountability”) sets out the general statutory obligations of local authorities in relation to their decision-making processes, including in relation to consultation with interested and affected persons.21
[28] Section 76 … is a key provision. It provides that every decision made by a local authority under the LGA must be made in accordance with each of the provisions of ss 77 (requirements in relation to decisions), 78 (community views), 80 (inconsistent decisions), 81 (contributions by Māori) and 82 (consultation) as are applicable.22 However, the obligations in ss 77 and 78 are subject to the “judgments” of the local authority under s 79 about how to
18 Thorndon Quay Collective Inc v Wellington City Council [2024] NZCA 316, [2024] 3 NZLR 361 at [27]–[33].
19 Local Government Act, s 14(1)(a)(i).
20 Section 14(1)(b).
21 Section 75(a) and (c).
22 Section 76(1).
achieve compliance with those sections which “is largely in proportion to the significance of the matters affected by the decision”.23
[29] Section 77(1) is also a key provision. Relevantly, it requires a local authority, in the course of its decision-making process, to:
(a) seek to identify all reasonably practicable options for the achievement of the objective of a decision; and
(b) assess the options in terms of their advantages and disadvantages;
…
[30] Section 78(1) requires a local authority to give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter under consideration. A local authority is not required by s 78 alone, however, to undertake a consultation process.24 Rather, consultation is one of the available options for obtaining information about the views and preferences of those affected or with an interest.25 …
[31] Section 79(1) provides that it is the responsibility of the local authority to make, in its discretion, judgments about how to achieve compliance with ss 77 and 78 in proportion to the significance of the matters affected by the decision. “Significance” is defined in s 5 as meaning:
… the degree of importance of the issue, proposal, decision, or matter, as assessed by the local authority, in terms of its likely impact on, and likely consequences for,—
(a)the current and future social, economic, environmental, or cultural well-being of the district or region:
(b)any persons who are likely to be particularly affected by, or interested in, the issue, proposal, decision, or matter:
(c)the capacity of the local authority to perform its role, and the financial and other costs of doing so[.]
[32] “Significant” is similarly defined, as meaning, “in relation to any issue, proposal, decision, or other matter, … that the issue, proposal, decision, or other matter has a high degree of significance”. Every local authority must adopt a “significance and engagement policy” that, among other things, sets out the local authority’s general approach to determining the significance of proposals and decisions in relation to issues, assets, and other matters; and any criteria or procedures that are to be used by the local authority in assessing the extent to which issues, proposals, assets, decisions, or activities are significant or may have significant consequences.26 It is common ground that the decision at issue in this appeal was not a “significant” one in terms of the LGA.
23 Sections 76(2) and 79(1)(a).
24 Section 78(3).
25 Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZLR 464 at [36].
26 Local Government Act, s 76AA.
[33] When a local authority is required to consult in relation to a decision, or chooses to consult, certain principles of consultation apply. These are set out in s 82(1). They include that those affected should have access to relevant information in an appropriate format and be encouraged to present their views, having been given clear information as to both the purpose of the consultation and the scope of any likely decision.27 Further, a local authority must ensure that interested or affected parties have a reasonable opportunity to present their views, and that those views are received by the local authority with an open mind.28
ANALYSIS AND DECISION
Application by TBL and PSHL to strike out
[92] Rule 15.1 of the High Court Rules 2016 (the Rules) provides that a court may strike out all or part of a pleading if it is frivolous or vexatious or is otherwise an abuse of process of the court.
[93] TBL and PSHL contend the proceedings should be struck out on the grounds of an abuse of process. The “crux” of this argument is the applicant’s own repeated admission that it would not have brought the judicial review or sought the interim relief if not for it forming the view that the proceedings would trigger a contractual right in favour of TCC to effectively cancel the transaction.
[94] TBL and PSHL submit that Pacific 7 hopes to leverage the cancellation right against TCC to stop the transactions and to allow Marine Precinct stakeholders to pursue a collective purchase. TBL and PSHL say that cancellation is not a remedy the Court can order; it is only available if Pacific 7 can exert pressure on TCC to exercise what Pacific 7 conceives of as a right of cancellation.
[95] These respondent parties contend that Pacific 7 is using the legal process to obtain a collateral purpose. They rely upon decisions such as Commissioner of Inland Revenue v Chesterfield Preschools Ltd, where the Court of Appeal held that it will be
27 Section 82(1)(a)–(c).
28 Section 82(1)(d)–(e).
an abuse of process where a proceeding “has been brought with an improper motive or [is] an attempt to obtain a collateral benefit”.29
[96] TBL and PSHL rely on the memorandum of counsel supporting the initial interim relief application. They say it constitutes “a remarkable display of candour” and evidences the alleged collateral purpose:
11.The plaintiff
a.has been aware of the date of settlement for some time;
b.had earlier engaged counsel to prepare injunctive proceedings; but
c.reluctantly decided against issuing such proceedings.
12.The filing of proceedings today reflects a change in circumstances, in part induced by fresh information.
13.Counsel for the plaintiff today learned that, in the event injunctive proceedings are filed, the respondent has a contractual right to terminate the agreement for sale and purchase.
14.The prospect of the respondent exercising that right has impacted the plaintiff decision-making in that it may obviate the need to proceed with the substantive claim.
[97] The fundament of the strike-out jurisdiction is maintaining public confidence in the administration of justice.30 The Court of Appeal has expressed the question as whether right-thinking people would consider the court was exercising poor control over its processes if it permitted the matter to proceed further.31 The principles have recently distilled by the Court of Appeal in M v H as follows:32
(a)the improper purpose alleged to be the motivation for the relevant proceedings need not be the sole purpose, as long as it is the predominant purpose;
(b)qualifying abuse will not be found, and a litigant will not be barred from pursuing a genuine cause of action, if the cause of action would
29 Commissioner of Inland Revenue v Chesterfield Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
30 Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.
31 O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30] and [33]. See also Smyth-Davoren v Parker [2018] NZHC 3034 at [8], citing Mathiesen v Fildes [2017] NZHC 2258 at [4]; and Mathiesen v Slevin [2018] NZHC 1032 at [6].
32 M v H [2024] NZCA 243, [2024] 3 NZLR 44 at [138] (emphasis in original).
be pursued despite the collateral purpose, notwithstanding that the collateral purpose is a consciously desired by-product of the claim;
(c)the onus on the party alleging abuse of process is a heavy one, and the power to grant a remedy (such as a stay) is to be exercised only in exceptional circumstances; and
(d)it is unnecessary to prove the commission of an improper act to justify a remedy but, other than in the clearest of cases, it will be necessary to point to some separate manifestation of intent, in the form of an overt act (such as a demand) which is indicative of the true (collateral) purpose.
[98] I reject the claim of an abuse of process. The jurisdiction to strike out on the grounds of abuse of process is to be exercised “sparingly”33 and the courts have noted the power to grant remedies is to be exercised in “exceptional circumstances”.34 That high threshold has not been met in this case.
[99] I find that the evidence falls well short of establishing that the improper and predominant purpose was to leverage the cancellation right and to procure a collective purchase by Marine Precinct stakeholders. As the House of Lords held in Johnson v Gore Wood & Co:35
Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court.
[100] In my view, Pacific 7, as the applicant, is a genuine applicant for judicial review, seeking to challenge the exercise of statutory powers by TCC in circumstances where it genuinely believes there will be significant adverse consequences if the sale is allowed to proceed. Like most applicants for judicial review, it ultimately hopes to achieve a substantive outcome, albeit recognising that the judicial review proceedings themselves, focused generally on process, will simply be a step on the way to that outcome.
[101] The “candid” acknowledgment in the memorandum filed in support of the interim relief application is not cogent evidence of an improper purpose. Rather, it is an acknowledgment of the reality of proceedings of this kind: they are expensive and
33 Commissioner of Inland Revenue v Chesterfield Preschools Ltd, above n 29, at [89].
34 M v H, above n 32, at [138(c)].
35 Johnson v Gore Wood & Co [2002] 2 AC 1 (HL) at 22.
are generally only brought after proper and careful consideration and in circumstances where there will generally be some sound or realistic prospect of relief. Naturally enough, upon learning that TCC might have a contractual right to terminate the agreement for sale and purchase, Pacific 7 reasoned that its prospects of obtaining relief might be enhanced, having earlier reluctantly concluded that it would not issue proceedings.
[102] I note that Mr Kelly, director of Pacific 7, was overseas for a substantial period in 2024. Upon his return to New Zealand in September 2024, and following the release of information about the cancellation clause, he received further information to enable him to make a more informed decision about whether to issue proceedings.
[103] It may be that Pacific 7 and other black boat users do wish to pursue a collective purchase, should the opportunity arise. However, in my view, the principal purpose of the proceedings it has brought is to hold TCC accountable for what the applicant sees as unlawful conduct significantly compromising the operations of a number of black boat operators in Tauranga Moana — those who have a long history of using facilities at the Marine Precinct. The threshold of an improper, predominant purpose is simply not made out.
[104] I accept that Pacific 7 had known of the settlement date for a long time and that a decision had earlier been made not to pursue an application for judicial review. However, as noted, there were genuine reasons for those decisions. The discovery or identification of TCC’s cancellation right under s 24.1(b) of the Business Agreement and the filing of proceedings shortly after that is, at most, opportunistic; it was not improper.
[105] The facts of this case are very different from the cases that TBL and PSHL rely on, namely Sheffield Properties Ltd v Kapiti Coast District Council36 and CNP Holdings Ltd v Central Park Property Investment Ltd.37
36 Sheffield Properties Ltd v Kapiti Coast District Council [2018] NZHC 3290, [2019] NZAR 574.
37 CNP Holdings Ltd v Central Park Property Investment Ltd [2024] NZHC 2541.
[106] In Sheffield Properties Ltd, Churchman J found the applicant (a trade creditor of the respondent) was predominantly motivated to interfere with and delay the efforts of a fellow competitor, despite Sheffield staunchly denying that motivation.38 The judicial review application was struck out.
[107] In CNP Holdings Ltd, the Court ordered a strike out because the proceedings were being used in an endeavour to leverage the proceeding to obtain a collateral advantage. In that case, proceedings had been brought under the Financial Markets Conduct Act 2013. The Court held that it had been brought for the improper purpose of forcing the defendants out of business as the property manager, and exerting pressure on them to sell their business interests to the plaintiff.39 That was, again, a clear case (albeit rare and exceptional) where the “extrinsic evidence” was held to be sufficient to make an objective determination that CNP would not have commenced the proceedings without it having the collateral predominant and improper purpose.40
[108] This case is also quite different from O’Neill v Webster,41 where this Court was faced with an application for judicial review. That proceeding was struck out on the strength of Walker J’s conclusion that “the proceeding is transparently a vehicle for Mr O’Neill’s persistent attacks on the judicial system and judges”.42
[109] For all these reasons, the application to strike out the proceedings on the grounds of an abuse of process is dismissed.
Application for rescission
[110] Rule 7.49 of the Rules provides for the rescission or variation of an order where that order was wrong. It is usually engaged in the following circumstances:43
(a)Where there was not full argument at the initial hearing;
(b)If some relevant point of evidence was overlooked;
38 Sheffield Properties Ltd v Kapiti Coast District Council, above n 36, at [50].
39 CNP Holdings Ltd v Central Park Property Investment Ltd, above n 37, at [89].
40 At [90].
41 O’Neill v Webster [2023] NZHC 2570.
42 At [16].
43 Zhang v Meng [2022] NZHC 2641 at [16], citing McGechan on Procedure (online ed, Thomson Reuters) at [HR7.49.01].
(c)If there has been a material change in circumstances; or
(d)Some other special circumstances have arisen.
[111] The second and third respondents also rely upon r 7.51 of the Rules which provides for the rescission of an order that has been fraudulently or improperly obtained.
[112] Pacific 7 initially sought without notice injunctive relief pursuant to s 15 of the Judicial Review Procedure Act. The TBL and PSHL submit that, in doing so, it fell “substantially short” of both the technical and, more importantly, substantive requirements of such an application. They rely on r 7.23 of the Rules, which provides the requirements for without notice applications. Form G 32, referred to at r 7.23(1), requires the person filing to certify the grounds for the application are made out and that:
… all reasonable inquiries and all reasonable steps have been made or taken to ensure that the application contains all relevant information, including any opposition or defence that might be relied on by any other party, or any facts that would support the position of any other party.
[113] TBL and PSHL submit that Pacific 7’s without notice application is procedurally and substantively deficient. The procedural deficiencies include:
(a)It is not in form G 32.
(b)It does not set out the grounds of why it is made without notice.
(c)The application does not provide the required certifications as to the grounds described above being made out or that “all reasonable inquiries and all reasonable steps have been made or taken” to ensure the application contains all relevant information.
(d)The memorandum is sparse. It does not fulfil the critical function of a memorandum on a without notice application. It does not discuss merits adequately or make full and frank disclosure of material facts.
[114] The second and third respondents further submit that this technical non-compliance is a symptom of the “persistent” failure of Pacific 7 in making its without notice application to fulfil its obligations and present the Court with sufficient information.
[115] In addressing the substantive deficiencies, TBL and PSHL say the duty of utmost good faith owed to the Court by the applicant seeking a without notice order is of particular relevance to this application.44 This duty encompasses the disclosure of all relevant information in the applicant’s possession, including information that does not assist their case, and any known defence (and its associated facts).45
[116] The second and third respondents say that there has been a material lack of disclosure and a breach of the applicant’s duty of full and frank disclosure. In particular, they note that there was no affidavit from Mr Kelly as the director of Pacific 7, the information supplied at the time of filing was inadequate, the affidavit sworn in support of the application, namely Ms Harvey’s, contained broad and speculative statements of opinion about the impact on other businesses in the Precinct, key evidence about the consultation actually undertaken by TCC was omitted, and no effort was made to present the Court with information about community views that were in support of the sale.
[117] I find that the submissions of TBL and PSHL on the issue of rescission are not without merit. They have identified some obvious deficiencies. It is also clear that the legal representatives of Pacific 7 were acting under great urgency and in challenging circumstances. The critical issue to address is whether the deficiencies alleged were material and, in particular, whether there was a material breach of the duty of full disclosure.
[118] Counsel for the applicant have candidly and responsibly acknowledged that form G 32 and the certification required were not given. I accept their explanation that this was solely due to the time pressure which counsel was under, having only a
44 Zhou v Chi [2018] NZHC 1298 at [44].
45 High Court Rules 2016, r 7.23(2)(b); also see McPherson v Bergers Securities Ltd HC Auckland CIV2003-404-2752, 12 June 2003 at [2].
matter of hours in which to prepare the application. I note that, in Greenway Ltd v Mutual Construction Ltd,46 this Court held that if non-compliance had “merely been as to the form of the application, and the lack of a certificate”, it would not have rescinded the search order. In my view, the non-compliance here was merely as to form.
[119] It is also important to consider the particular context here. At the initial interim orders hearing (by telephone on 21 November 2024), I directed counsel for the applicant to contact the legal representatives for TCC and to arrange, if possible, their attendance on a telephone conference. Counsel for TCC did appear (by telephone) and expressly advised the Court that TCC did not oppose the grant of interim orders on a temporary basis. That does not, of course, excuse the applicants from their obligation of full disclosure, but here there was some opportunity given to the principal respondent party to have its say and put any essential information before the Court. In saying that, I do acknowledge the very tight and challenging circumstances under which all parties, including counsel for TCC, were operating.
[120] I accept and agree with the submissions of the applicant that they did put before the Court, through the affidavit of Ms Harvey, the key documents at issue. Counsel did also advise the Court at the telephone conference hearing on 21 November 2024 that there was a lease-back of part of the land to TCC for three years, which would preserve access (presumably) for black boat vessels for loading and unloading, refuelling and ice facilities for that period. The documents provided to the Court also indicated, quite properly, that there has been a relatively lengthy period of engagement with the community over the future of the Marine Precinct.
[121] While the second and third respondents’ criticisms of Ms Harvey’s affidavit have some merit, they are made with the benefit of hindsight and a much more comprehensive record (which is available to all) as to what has taken place. It is regrettable that this initial affidavit was not prepared and sworn by Mr Kelly, as director of Pacific 7. I acknowledge that he was away from Tauranga on business at the time, but it is not clear to me why he did not prepare his sworn affidavit in advance
46 Green Way Ltd v Mutual Construction Ltd [2021] NZHC 1704 at [78].
of his departure. In any event, I find that there was no material breach of the applicant’s obligation of utmost good faith to disclose.
[122] The position of TCC in not opposing the initial interim orders was obviously an important factor in my decision to grant them and, as I have already concluded, the proceedings have been brought on genuine grounds to challenge what is said to be unlawful conduct by TCC. Some of the assertions in Ms Harvey’s affidavit are somewhat loose and may well have been overstated, but I find there is no basis for concluding that the initial orders were wrong or improperly obtained.47
[123] Accordingly, the second and third respondents’ application for rescission is dismissed.
[124] I now turn to consider what, in my view, is the truly critical issue in this case: whether grounds are made out under s 15(1) of the Judicial Review Procedure Act for the interim orders to continue.
[125] As I directed in my minute of 6 December 2024, that issue is to be considered on a de novo basis.
Should the interim orders continue?
Legal principles
[126] Under s 15(1) of the Judicial Review Procedure Act, the Court may make an interim order prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of a statutory power if, in its opinion, it is necessary to do so to preserve the position of the applicant.48
[127] The principles to be applied were recently considered and summarised by Isac J in Aitken v Judicial Conduct Commissioner.49 I adopt the following paragraphs from his Honour’s judgment:
47 High Court Rules, rr 7.49 and 7.51.
48 Judicial Review Procedure Act 2016, s 15(1) and (2)(a).
49 Aitken v Judicial Conduct Commissioner [2025] NZHC 190 (footnotes omitted).
[16] There are no strict tests to apply to an application for interim orders under the Act. Nevertheless, s 15 requires a two-stage approach. First, the Court must be satisfied that an interim order is necessary to preserve the applicant’s position pending trial. Second, if the applicant has satisfied the Court it has a position to preserve, the Court has a discretion to grant the interim relief sought.
[17] The first stage of the enquiry involves a statutory threshold which must be crossed to engage the Court’s jurisdiction. The Court must consider the existing circumstances, the substantive relief sought and the consequences of not making an order. Justice Henry, in Woodhouse v Auckland City Council, described the threshold question in these terms:
The clear purpose of [s 15] is to give a right of protection on an interim basis to an applicant who may otherwise be unfairly prejudiced by reason of the delay in obtaining a final hearing. The lapse of time may in some circumstances render the practical effect of final relief of little or no value; it may put an applicant in a disadvantaged position which it is later found to have been wrong; or it may result in the right to the final relief sought having expired altogether. Hence the need for an interim preservation of position. It is therefore important to look at what is being sought by way of substantive relief, to see whether there is a position which should be preserved and which is the subject of or at least relevant in a significant way to the substantive application.
[18] At the discretionary stage the Court may take into account a wide range of considerations. Factors commonly considered include the merits of the case, the nature of the review proceedings, the character, scheme and purpose of the legislation under which the impugned decision was made, the factual circumstances including the nature and prima facie strength of the applicant’s challenge, the expected duration of an interim order, and the overall interests of justice.
The context
[128] Before addressing the two-stage test, I begin my analysis with an assessment of the context of the impugned decision. As Lord Steyn famously said in a leading public law case, R v Secretary of State for the Home Department ex parte Daly, “In law context is everything.”50
[129] In addressing the issue of context, Ms McKechnie, for TCC, emphasised that the activity at issue is a commercial non-core Council activity. She submitted that the Marine Precinct is not and has never been a “strategic asset” of TCC; it was initially acquired as part of the Harbour Link roading project and has provided space where
50 R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26, 3 All ER 433 at [28].
others carry out commercial activities. From the outset, TCC committed to marine-based economic activity on the site. Ms McKechnie emphasised that there are competing interests and a lack of space in the Precinct and where those competing interests and lack of space have been known to many, if not most, in the community for a very long time. She submitted that TCC is under no duty to provide fishing or working boat facilities and there are no ongoing contractual commitments of TCC to the current users or potential users of the wharves. She also noted that ownership of the land in the Precinct has changed over time and, indeed, the wider Precinct still includes some privately-owned parcels of land.
[130] There is some obvious merit to those submissions. I also accept as a matter of general principle that the courts intervene by way of judicial review in relation to contracting decisions made by public bodies in a commercial context in limited circumstances.51 However, the critical context here is the statutory scheme of the LGA. There is, and can be, no dispute that TCC was required to act in accordance with its obligations under that statute. As will be addressed, at issue is the nature and extent of the obligations that the statutory scheme imposes.
[131] I also acknowledge the submission of Mr King, for Pacific 7, that the rights and interests affected by the impugned decision are those of a marine industry culture. This includes members of the locally-based fishing industry and others who have long used Tauranga Moana and the facilities at the Precinct. The impugned decision is not purely a commercial one; there are the obvious impacts on livelihoods and, to some extent, a way of life.52
[132] A further important contextual factor in this proceeding is that I am now considering the question of interim orders, having heard substantial legal argument (over a whole day) and received and analysed a large amount of evidence. In particular, this includes a comprehensive step-by-step account of the engagement by TCC and its officers with the marine industry community regarding the future of the
51 See Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [41], citing Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 2 NZLR 385 (PC) at 391.
52 I acknowledge that the Sanford fish processing plant closed in 2020 — and that had been a key part of the fishing industry in Tauranga Moana.
Marine Precinct. I acknowledge that this was not the substantive judicial review hearing, but the reality of the situation needs to be acknowledged, namely that it is unlikely that, at a substantive hearing, there would be much more evidence on the critical issue of the steps that TCC took to engage with and consult the applicant and others in the black boat fleet. I also note that it is unlikely that, at a substantive hearing, there would be cross-examination of the evidence. The point is, I am now reasonably well-placed to assess the merits of Pacific 7’s substantive claims.
Is an interim order necessary to preserve Pacific 7’s position?
[133] The first question in the two-step test is whether an interim order is necessary to preserve Pacific 7’s position pending determination of its substantive challenge to TCC’s decision.
[134] Pacific 7 submits that, without the interim orders, the Marine Precinct will pass into the hands of the second respondent. It contends that if that happens:
(a)users of the Precinct will have no medium or long-term ability to load and unload cargo/fish at the Precinct and they will have no certainty regarding use of Bridge Wharf for berthing (as the berths are predominantly occupied by black boats at present and superyachts will have priority); and
(b)in the short-term, current users would need to either enter into new arrangements with the purchasers (which would likely only be temporary) or find alternative berthing options elsewhere, where there are none for vessels that cannot fit under the Harbour Bridge.53
[135] Pacific 7 submits that the effect of all this would mean that users of the Marine Precinct would be subject to the adverse impacts of the impugned decision in
53 In its interim relief application dated 21 November 2024, Pacific 7 refers to the sale of the Marine Precinct as forcing it and other persons to either “close or relocate their business premises”, resulting in irreparable harm. It also refers to the lack of reasonably available locations for the relocation of business.
the meantime and that this would substantially hinder the Court’s ability to provide effective relief, if not render the relief sought futile.
[136] I find that the submissions of Pacific 7 overstate the impacts of TCC’s decision to sell the Marine Precinct. Neither Pacific 7, nor the other users of the Precinct, have a statutory right of access or an ongoing contractual right of access to the facilities at the Marine Precinct under the terms of their service agreements. Furthermore, as Ms McKechnie submits, TCC is not required under the LGA to provide marine facilities, nor access to those facilities. The contracts with all Marine Precinct users, including Pacific 7, are on commercial terms (albeit loss-making in totality for the Council) and on a month-by-month basis.
[137] It is also important to note that the Development Agreement allows use of the Marine Precinct by the black boat fleet for at least the next three years.
[138]I also find that there are some alternatives for Pacific 7 and the black boats:
(a)TCC has committed to the replacement and upgrade of Fisherman’s Wharf, south of the Harbour Bridge, to provide alternative berthing and loading/offloading facilities for black boat users, who can safely fit, or modify their vessels to fit, under the Harbour Bridge.
(b)There appear to be some other options within the Tauranga Moana for black boat users who have vessels unable to be modified to fit under the Harbour Bridge. Those include the Port of Tauranga and Sanford’s Wharf; both located north of the Bridge.
[139] A further factor, to which I return below, is the apparent willingness and commitment of the current democratically elected Council to provide solutions and explore options on an ongoing basis to address the concerns of the applicant and its supporters.
[140] However, despite all these factors, I find that it is reasonably arguable that there will be a material change in the status quo and, if the sale proceeds, the applicant and
others will likely face a period of considerable uncertainty. It is reasonably arguable that, post-sale, superyachts, rather than black boats, will be given priority. There are obviously also issues with the proposed alternative at Fisherman’s Wharf, albeit difficult for the Court at this stage to assess the extent to which the black boat fleet will be affected and/or unable to access the alternative facilities.
[141] In weighing all these considerations, I conclude that, on balance, Pacific 7 has established that an interim order is necessary to preserve its position. That said, this is not a clear-cut or compelling case of necessity.
[142]I turn to address the second step of the test, namely the discretionary stage.
The discretion and the overall interests of justice
[143] I begin with an assessment of the apparent strengths and weaknesses of the claims.54
Compliance with statutory obligations under the LGA
[144] The principal challenge in the substantive proceedings concerns TCC’s compliance with its statutory obligations under Part 6 of the LGA. In essence, all five causes of action in the statement of claim are directed at that issue. On the pleadings, the particular issue that arises is whether TCC was sufficiently informed of the impact of its decision on the applicant and other users of the Marine Precinct to discharge its obligations under the LGA.
[145] As the Court of Appeal observed in Wellington City Council v Minotaur Custodians Ltd,55 local authorities are given a deliberately broad discretion under the LGA as to whether to consult and, if so, how. The overriding statutory purpose is, of course, to ensure that local authorities make informed decisions and, in doing so, have regard to the views of all the community.56 The statutory scheme also emphasises
54 The claims are set out in the first amended statement of claim, dated 20 December 2024.
55 Wellington City Council v Minotaur Custodians Ltd, above n 25, at [42]. See also Thorndon Quay Collective Inc v Wellington City Council, above n 18, at [82].
56 Local Government Act, s 14(1)(b).
democratic accountability.57 Those objectives might require particular effort by decision-makers to seek to understand the perspectives and concerns of those who might be most adversely affected by the decision at issue. The individual circumstances and context are always critical.
[146] As part of exercising their discretion as to how they comply with the statutory requirements, local authorities must consider the significance of the matters affected by the decision.58 An assessment of significance must be made under the SEP, in accordance with s 76AA of the LGA.
[147] It is clear from the comprehensive affidavit of Ms Christine Jones (General Manager, Strategy, Growth, and Governance at TCC) that Pacific 7 faces formidable challenges in making out its claims of breach of consultation requirements. Ms Jones’ lengthy affidavit, which is accompanied by substantial documentation as exhibits, makes clear that TCC has undertaken a relatively lengthy and sustained period of engagement with the local community, including the applicant, Pacific 7, and other black boat users, in relation to the future of the Marine Precinct. The documentary record strongly supports a finding that TCC had an informed understanding of the adverse consequences for the black boat fleet of its decision to proceed with the disposal.59 The need to provide some accommodation for the black boat fleet, albeit recognising that the fleet’s interests would be compromised, was expressly taken into account in the decision-making process. As part of that decision-making, TCC has made an ongoing commitment to providing upgrades and replacements of wharf infrastructure (including the replacement and upgrade of Fisherman’s Wharf) and specific infrastructure to continue to support the black boat operators. It is clear that
57 Section 14(1)(a)(i).
58 Section 79.
59 That is apparent from the internal draft memorandum prepared by TCC in January 2024. I note and accept that that memorandum remained in draft form and was, for internal purposes, kept as a summary of known information. On the facts here, that is immaterial.
That memorandum is entitled “The potential impact of the Tauranga Marine Precinct Divestment on the existing customer base”. It expressly notes, in relation to Fisherman’s Wharf that the “height [is] restricted due to the Harbour Bridge”. It includes, at Section 4, details of the customer base using Vessel Works’ in-water facilities and makes express reference to a range of operators, including the Harvey family, RMD Marine, Oceanic Fishing, independently owned Tauranga-based vessels, roll-on/roll-off ferries, independently owned seasonal vessels and the vessels Skookum (owned by the Tauranga Barge Company) and Deliverance (owned by Sunchaser Freight Ltd). At cl 4.2.2.4, reference is also made to the YWAM vessel, Koha.
TCC is alive to the fact that not all black boats will be able to fit under the Harbour Bridge and access Fisherman’s Wharf.
[148] In the circumstances, it is difficult to see what TCC did not know that was necessary for it to make an informed decision. I accept there are discrete factual disputes about the particular potential impact, but the Court is not well placed, or indeed likely to be in a position, to be able to resolve those disputes. In any event, it is ultimately for the decision-maker to engage with such factors and to make its assessment. It has done so. The merits of such assessments are not for the Court on judicial review to second-guess.
[149] On the available and comprehensive evidence, TCC has a strong case for establishing that it had a good understanding of its consultative and decision-making obligations under the LGA and of its relevant policies. It squarely confronted the SEP, decided the sale was a decision of “medium significance”, and decided, in its discretion, that no further consultation was necessary in light of both that decision and previous consultation undertaken. TCC assessed the divestment in accordance with its Property Acquisition and Disposal Policy, engaged with mana whenua in 2023, and classified the divestment of the Marine Precinct as a strategic disposal.
[150] I also note the following particular steps in the process which instance consultation at both a specific level of the Marine Precinct stakeholders, but also demonstrate TCC’s more holistic appreciation of the place and role of the Marine Precinct. These include:
(a)In 2019, TCC procured a review of the Marine Precinct by Max Pedersen Consulting, which involved engagement with stakeholders as to the then current operation of the Marine Precinct and the interactions between stakeholders, TCC, and the goals for the Marine Precinct.
(b)On the back of the Pedersen report, the MPAG was created. Mr Kelly of Pacific 7 was a member. Through the MPAG, TCC was able to enter into a dialogue with stakeholders about their views about the
Marine Precinct, including the way they interacted commercially. This also included their views regarding maintenance needs, development aspirations and possibilities, and the use of alternative wharves.
(c)The report of TCC officers dated 6 October 2020 and entitled “Approach to develop a Marine Facilities Strategy and Marine Facilities Development and Management Plan” summarised the marine-related issues and pressures experienced by recreational and commercial entities that operated on or around the water at the Precinct. These entities included the fishing fleet, sailing vessels with long masts, superyachts, large vessels, and marine service providers.
(d)In 2020, TCC procured a review (delivered in 2021) by EY, into the operating model and land ownership of the Marine Precinct. This review involved interviews with TCC staff and Marine Precinct stakeholders and presented a raft of possible options for the ownership and operation of the Marine Precinct.
(e)The consultation by TwentyTwo ran from June 2021 through to December 2022. This involved several reports and episodes of engagement with both TCC and Marine Precinct stakeholders. The stakeholders’ consultation included Pacific 7 and the Harvey Family Fishing Group. Importantly, the option of the type of disposal ultimately decided upon (and now at issue) was expressly canvassed on a number of separate occasions. Furthermore, the option of a sale to a third party with no covenants (i.e. no requirement for a marine industry at all) was also expressly contemplated. That would, of course, have had a significant impact on the black boat fleet and indeed many other users.
(f)TCC ran waterfront workshops in early-2022 with a range of relevant parties, including the harbourmaster, mana whenua, and Vessel Works staff. These covered an array of topics concerning the waterfront, including the possible future usage of the Marine Precinct. The
possibility of it being used as a superyacht commercial area was expressly raised.
[151] It is important to place the individual circumstances of the applicant and other particular black boat users into the context of the above steps.
[152] Mr Kelly, director of Pacific 7, acknowledges that he was part of the MPAG. He also says at [65] of his affidavit that “over the years, [he has] been visited by numerous consultants engaged by TCC”. He says that he has contributed to discussions regarding topics such as:
(a)development of the Marine Precinct land and facilities;
(b)upgrading wharf structures within the Marine Precinct and throughout the Tauranga Harbour, including Dive Crescent and Fisherman’s Wharf;
(c)the need for separation between black boats and white boats within the Marine Precinct; and
(d)future ownership and management structures for the Marine Precinct.
[153] I acknowledge the significant contribution Mr Kelly has made to the Marine Precinct community. But it is fair to conclude from the evidence that, during the relevant consultation and decision-making period, he had stepped back significantly from the Marine Precinct. From 2022, he took a break of two years and, with his family, sailed from the United States to New Zealand. He had previously told TwentyTwo that he did not plan to continue operating at the Marine Precinct. I note that the two-year withdrawal from the Marine Precinct appears to be consistent with TCC’s understanding of Mr Kelly’s plan to withdraw from the Precinct. Mr Kelly’s position may well have changed, but his apparent surprise late in the piece that the Precinct was to be sold does appear, in substantial part, to be explicable by his absence.
[154] I also note that Ms Harvey, who filed the affidavit in support of the initial interim orders, says that she was consulted by TwentyTwo on 10 May 2021 “primarily
about what our needs were within Tauranga, how many boats we had, how many trips we do, why we were based at the [Marine Precinct]”. She also says “on numerous occasions, as a collective, we have offered to TCC to design a trust structure for Marine Precinct users to control the Marine Precinct or to purchase the land as a collective group, to ensure it always remains accessible to and owned by interests within Tauranga City”.
[155] Pacific 7 submits that there was a material change in October/November 2023 when TCC decided to pursue a transaction with the respondents that would involve substantial displacement of the black boat fleet. It contends that, at that stage, there was an obligation to consult the specifically affected parties. It further submits “Tellingly, TCC consulted with mana whenua regarding the proposed sale in October 2023 but did not consult with users of the precinct”.
[156] Those contentions might represent a somewhat stronger case for Pacific 7 but, again having regard to the comprehensive record of the processes and steps taken by TCC, the case should not be overstated. The specific consultation with mana whenua would, I apprehend, have provided an opportunity for iwi on Matakana or Motiti Islands to address any concerns about the impact on barge operations from the Marine Precinct. In any event and regardless of the extent of this further consultation, disposal to a third party, with the covenant intact, was an option that had previously been contemplated and consulted on. It is difficult to see how the Marine Precinct community could have been surprised at the sale proposal.
[157] Even if there was a material change as claimed (which I doubt), it is hard to see that there was anything about that change that might mean that TCC needed to obtain further information. As I have emphasised, disposal to a third party, with a covenant intact, was an option that had previously been canvassed.
[158] I acknowledge the amended resolution of TCC at the October 2024 Extraordinary Meeting that the sale process may not have followed the “Council’s Acquisitions and Disposals Policy and Section 82 of the Local Government Act.” However, I place little weight on that indication. The meeting was an obviously highly charged political event and ultimately, it is for the Court, and not TCC, to determine,
in the exercise of its supervisory jurisdiction, whether TCC was acting unlawfully. I also note that the amended resolution appears to have been adopted without the benefit of legal advice.
Alleged incorrect categorisation
[159] The third ground of relief pleaded is a challenge to the classification of the decision to divest the Marine Precinct under its SEP, as required by s 76A of the LGA. However, it is difficult to discern from the pleadings any particular material error of law TCC is said to have committed and the available evidence falls well short of establishing a reasonably arguable claim of unreasonableness in a public law sense (Wednesbury unreasonableness).60 Rather, the challenge in this cause of action appears to be very much a challenge to the merits of the decision and outside the purview of judicial review.61
Natural justice
[160] It is also difficult, in the statutory and factual context here, to identify a free-standing common law obligation to consult that is independent of the statutory scheme of the LGA (i.e. the first ground of relief claimed, namely breach of natural justice). I agree with the submission of Ms McKechnie that this is not one of the rare situations that gives rise to natural justice requirements beyond appropriate compliance with the LGA decision-making provisions.62 Moreover, no legitimate expectation is pleaded.
[161] Furthermore, as noted above at [65]–[66] and [129], the Marine Precinct is not, and has never been, a “strategic asset” under TCC’s current or previous SEP.
60 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, [1947] 2 All ER 680 (CA).
61 See Lab Tests Auckland Ltd v Auckland District Health Board, above n 51, at [386]; and Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (HL) at 1173.
62 See Wellington City Council v Minotaur Custodians Ltd, above n 25, at [46] and [48], characterising Pascoe Properties Ltd v Nelson City Council [2012] NZRMA 232 (HC), in which a common law duty to consult arose, as a case “founded in legitimate expectation arising from its unique facts”; see also Evans v Clutha District Council [2020] NZCA 5, [2020] NZAR 1 at [34], where the Court of Appeal rejected the concept of a general duty to consult at common law unless it was a “truly exceptional case”.
Similarly, it is not a “significant activity” requiring consultation.63 Rather, it is a commercial facility, initially purchased and operated because of land acquisitions associated with a major transport project.
[162] In analysing this particular cause of action, I also note that councils, including TCC, have a wide discretion about how non-statutory consultation is undertaken.64 Furthermore, TCC went beyond minimum requirements for consultation and carried out engagement outside of (and subsequent to) the 2021–2031 Long-Term Plan amendment process.
Conclusion on the merits
[163] My overall assessment, in weighing all of the above factors, is that the applicant’s substantive claims are generally weak.
[164] I now turn to address other factors relevant to my overall discretion, namely those pertaining to the interests of justice more generally.
Interests of justice factors
[165] In exercising my broad discretion, it is necessary to have regard to the public and private repercussions of granting interim relief, including (among other things) infringement upon any public or private rights,65 the consequences for the parties,66 and whether granting interim orders would result in prejudice to others.67
[166] As I have noted, given the competing interests and the geographical reality of Tauranga Moana (i.e. limited space), a decision to sell the Marine Precinct would inevitably include the compromising of the interests of some of the various parties. TCC submits, and I accept, that it is aware that some vessels owned by black boat
63 It is not a core Council service like the operation of water services or those services listed in sch 10 pt 1 cl 2(2) of the LGA. See LGA, ss 93 and 97. Also see Wānaka Stakeholders Group Inc v Queenstown Lakes District Council [2021] NZHC 852 at [132]–[135].
64 Save Chamberlain Park Incorporated v Auckland Council [2018] NZHC 1462, citing Wellington City Council v Minotaur Custodians Ltd, above n 25, at [46].
65 Sterling v Maori Land Court HC Wellington CP11/98, 5 February 1998 at 5.
66 Coromandel Peninsula Watchdog Inc v Hauraki District Council [1997] 1 NZLR 557 (HC).
67 Hart v Marlborough District Council [2023] NZHC 2714 at [113], citing Auckland Pride v Minister of Immigration [2023] NZHC 758, [2023] 2 NZLR 651.
users will be displaced if the sale of the Marine Precinct to TBL and PSHL proceeds. TCC has factored such impacts into the Agreements during the negotiations. The decision-making process has taken place over a considerable period of time and there are clearly community interests that support the decision to sell. On the evidence before me, there is a range of views.68 The respondents can rightly claim that the disposal is intended to have general economic benefits for the wider community.69 It also appears that there is a clear need to improve wharf structures in the Marine Precinct and more widely throughout Tauranga Moana.
[167] I have already addressed above the issue of the impact of the disposal on Pacific 7 and the black boat fleet. I concluded that Pacific 7 had overstated the impact on the black boat fleet. I reject the claim of irreparable harm. The haul-out and fit-out services of the Marine Precinct will remain available, post-sale, to Pacific 7 (and other users) on commercial terms. I have also noted above that the Development Agreement allows use of the Marine Precinct by the black boat fleet for at least the next three years. Indeed, the express purpose of the lease-back provision is to assist with an appropriate transition period for existing Marine Precinct users to find and secure other berthing and loading/offloading locations, while still being able to use the Marine Precinct. It is also intended to allow time for TCC to work through an appropriate design with stakeholders and complete construction at Fisherman’s Wharf.70
[168] It is also important to record that the covenant on the land will remain. Furthermore, cl 24.1 of the further terms of sale in the Development Agreement require TBL to design, construct and complete development of the Marine Precinct in accordance with strategic objectives in order to ensure the needs of the wider marine sector in Tauranga are considered in the development.
68 I note that other users of the Marine Precinct include solely land based operations and that a substantial part of the Precinct is undeveloped (I acknowledge that land immediately adjacent to Tauranga Moana (i.e. with harbour access), is limited).
69 In his affidavit, Mr Rofe, of TBL, sets out the benefits predicted to flow from the re-fit development. He states that “When a superyacht docks into a berth, it [sets off] a chain of expenditure which flows through the economy with a wide economic footprint.”
70 See [131(a)] of the affidavit of Christine Jones, General Manager, Strategy, Growth, and Governance at TCC, affirmed 7 February 2025.
[169] A further factor of importance is that the newly democratically elected Council appears to be committed to working with the representatives of the black boat fleet to find solutions to the issues they have raised. That includes, as I understand it, trying to find a solution for those black boat fleet operators who have vessels unable to fit under the Harbour Bridge and will therefore be unable to access Fisherman’s Wharf. There is an obvious degree of goodwill and TCC retains a significant interest and control over new wharf structures under the new arrangement. I note, too, that currently there is no design that has been approved for Fisherman’s Wharf (the proposed alternative).
[170] On the other hand, in assessing the competing interests of the respondents, it is not possible, as Mr Johnson submitted “to truly measure” the damage associated with the lost opportunity to develop. However, it is clear from Mr Rofe’s affidavit that TBL and PSHL have made a significant investment, both in time and money, and I accept that there will be ongoing financial and reputational costs to TBL and PSHL if interim orders were continued.
[171] In terms of prejudice to TCC, it says that the Marine Precinct has consistently operated a net loss to it since 2018. There has been an average loss of $1.5 million per year over the last five years and the Precinct continues to incur a monthly debt of
$135,000. TCC submits that the Marine Precinct is consuming debt capacity which could otherwise be utilised to deliver core Council activities or assets for the benefit of all its community. It says that ratepayers are effectively “subsidising” the Marine Precinct activities. I am not in a position to second-guess the decisions of TCC on those issues; they are properly assessments for democratically elected representatives to make.
Conclusion — my overall assessment
[172] In weighing all these interests of justice factors, including my assessment of the merits of Pacific 7’s claims (they are weak), I find and conclude that the application for interim relief should be dismissed. I find that there is no justification for the original orders I made to continue in force pending the substantive proceeding. In particular, the insufficient merits do not justify further delay and uncertainty.
Result
[173] The applications by the second respondent, Tumblehome Bay Ltd, and the third respondent, Pacific Safe Harbours Ltd, for strike out and rescission are dismissed.
[174] The application for interim relief by Pacific 7 Ltd, dated 21 November 2024 (having been considered on a de novo basis) is dismissed. The effect of that order is that the interim order originally made on 21 November 2024 is discharged and is no longer in force.
[175] As to costs, I am of the preliminary view that costs should lie where they fall (i.e. there should be no order for costs). That is because all parties have had a measure of success and there is arguably public interest in having the issues ventilated. If costs cannot be agreed, then memoranda are to be filed and served by 9 May 2025.
Andrew J
APPENDIX
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