Reed v Waikato District Council
[2025] NZHC 2586
•5 September 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-000317
[2025] NZHC 2586
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER
of an application for judicial review of decisions under the Resource Management Act 1991
BETWEEN
ANTHONY PRIVETT REED and REED
TRUSTEE 2018 LTD (as Trustees of the Eagle Trust)
ApplicantsAND
WAIKATO DISTRICT COUNCIL
First Respondent
RUBY & RATA LTD
Second Respondent
Hearing: 14 August 2025 Counsel:
D R Bigio KC and T M McGoldrick for Applicants K J Ridling for First Respondent
S J Ryan and S Thompson for Second Respondent
Judgment:
5 September 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 5 September 2025 at 4.15 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
REED v WAIKATO DISTRICT COUNCIL [2025] NZHC 2586 [5 September 2025]
Introduction
[1] This case is scheduled for hearing on 15 and 16 September 2025. On 30 July 2025, the second respondent filed an interlocutory application for leave to file an amended statement of defence and counterclaim. On 8 August 2025, the applicants filed a notice of opposition.1
[2] The parties persuaded me to hear oral argument on the application on 14 August 2025 on an urgent basis because of the proximity of the hearing. Unfortunately, the vicissitudes of judicial scheduling have resulted in me sitting on 31 cases post 14 August 2025. I am very conscious that the parties need the application resolved. So, I will write short and address only the points that underpin my decision.
The case
[3]This is an application for judicial review.
[4] The applicants own land which has the benefit and burden of a registered encumbrance affecting their land and neighbouring land:2
An encumbrance in the form of a mortgage registered on 4 November 2011 on the titles of both 87 and 87A Ruebe Road prohibits further subdivision undertaken as conservation lot or environmental lot subdivision (Subdivision Encumbrance):
No further subdivision of the Land is allowed under Rule 22.9 (Conservation Lot) of the Operative Franklin District Plan, Rule 22.11 (Environmental Lot) of Plan Change 14 to the Operative Franklin District Plan; Rural Plan Change, or any similar provision(s) of any District Plan or Plan Change document.
[5] The second respondent owns the neighbouring land and applied to the first respondent for resource consent to subdivide it. Resource consent was given. The applicants seek judicial review of the decision-making process.
[6]There are seven grounds of review. The third is:
48.In making the Consent Decision, the first respondent erred in law because it failed to consider or failed to consider correctly the Subdivision Encumbrance, which prevents further subdivision of 87A Ruebe Road.
1 The first respondent also opposes aspects of the amended pleading.
2 Amended statement of claim, dated 8 May 2025, at para 4.
[7] The proposed amended statement of defence and counterclaim has the following new pleadings:
60. That if the applicant is successful in establishing any of the grounds of review pleaded (which are all denied) relief should be denied on the grounds that: …
d)the condition requiring the subdivision encumbrance was ultra vires or unreasonable for the reasons set out at para [64] – [68] below.
…
64.The subdivision encumbrance was imposed by the former Franklin District Council as a condition 2(e) of consent S08093 to Ruebe Park Ltd in December 2008 which stated:
Memorandum of Encumbrance: Subdivision Prohibition – Lots 1 and 2
Register a Memorandum of Encumbrance on the title of Lots 1 and 2 of this subdivision to prohibit further subdivision of these lots in terms of Rule 22.9 (Conservation Lot) of the Operative Franklin District Plan, Rule 22.11 (Environmental Lot) of Plan Change 14 to the Operative Franklin District Plan: Rural Plan Change, or any similar provision(s) of any District Plan or Plan Change document.
Council’s Solicitor will prepare the Encumbrance at the consent holder’s expense.
65.The reporting planner for S08093 recommended a condition imposing a consent notice (under s 221 RMA) restricting further subdivision under the heading 4.2 Plan Change 14 – Rule 22.11.1:
1(f) – Further subdivision restriction
The decision version of Plan Change 14 seeks to place restrictions on further subdivision of the lots resulting from environmental lot subdivisions, and it is considered appropriate that a Consent Notice be registered on the titles of the resultant lots for this purpose.
66.Rule 22.11.1.1(f) PC 14 (July 2006), as discovered or otherwise obtained through these proceedings’ states:
(f)A Consent Notice will be registered against all new Certificates of Title to prohibit any further subdivision.
67.Inconsistent with the recommendation by the reporting planner, the Franklin District Council imposed a condition in S08093 prescribing an encumbrance under condition 2(e), not a consent notice.
68.On its true and proper interpretation Rule 22.11.1.1(f) PC 14 (July 2006) is a performance standard and/or assessment criteria not a rule providing that subdivision was a prohibited activity.
69.The applicant’s pleaded error 3 relating to the subdivision encumbrance should be declined on the additional grounds that:
…
f)the subdivision encumbrance and/or the condition requiring the registration of the subdivision encumbrance in SUB08093 / SUB0974/11 was unreasonable or ultra vires because:
i)Rule 22.11.1.1(f) PC 14 (July 2006) provided for a consent notice but did not provide for the imposition of the subdivision encumbrance;
ii)Rule 22.11.1.1(f) PC 14 (July 2006) is a performance standard or assessment criteria, not a rule imposing a prohibited activity status on subdivision under s 11 RMA.
iii)The policy imperative was observance of the ‘single scoop’ or ‘no double dipping’ principle against claiming further subdivision rights from the same protected environmental feature, not a prohibition against further subdivision or further similar subdivision on the land or its entirety.
…
72. Declarations or an order under s 313 Property Law Act 2007 that:
…
b) that the covenant in Schedule 2 of the encumbrance is void for uncertainty, or otherwise unenforceable, in part, as it relates to PC 14, namely the words: “Rule 22.11 (Environmental Lot) of Plan Change 14 to the Operative Franklin District Plan; Rural Plan Change, or any similar provision(s)…”.
The law
[8] Rule 7.7(1) of the High Court Rules 2016 provides that no amended pleading may be filed after the close of pleadings date without the leave of a Judge. Subject to this rule,3 r 7.77 provides generally that a party may before trial file an amended pleading which may introduce, as an alternative or otherwise, relief in respect of a fresh cause of action which is not statute barred, or a fresh ground of defence.4
[9] Under r 7.77(3), an amended pleading may introduce a fresh cause of action whether or not that cause of action has arisen since the filing of the statement of claim. However, if the cause of action arose since the filing of the statement of claim, it may only
3 High Court Rules 2016, r 7.77(5).
4 Rule 7.77(1) and (2).
be added by leave of the Court.5 In the absence of unusual prejudice to the defendant, the Court has often been inclined to grant leave,6 provided the requirements of r 7.7 are met.
[10] For a party to obtain leave to amend pleadings after close of pleadings, they must “surmount the three formidable hurdles of showing that the amendment is in the interests of justice and will not significantly prejudice defendants or cause significant delay”.7
[11]Justice Toogood summarised the principles applicable to a r 7.7 application in
Oraka Technologies Ltd v Geostel Vision Ltd:8
(a)The paramount consideration is that the parties should have every opportunity to ensure that the real controversy goes to trial so as to secure the just determination of the proceeding.9
(b)Due regard must also be had to whether the proposed amendment will cause significant delay or prejudice another party.10
(c)Even where serious prejudice and significant delay will arise, an amended pleading may nevertheless be permitted if the proposed claim has substantial merit and will not cause injustice to the defendants.11
(d)The Court should consider the merit, or absence thereof, in a proposed amended pleading.12
[12] Justice Cull added to these considerations in Monster Energy Company v Ox Group Global Pty Ltd, noting that it will also be relevant to consider whether irreparable damage would be suffered by the applicant seeking leave to amend, and the timing of the application and the magnitude of, and reasons for, delay.13
5 Rule 7.77(4). Also see Spencer v Bryner [2019] NZHC 1762.
6 See Commodore Pty Ltd v Perpetual Trustees Estate & Agency Company of New Zealand Ltd [1984] 1 NZLR 324 (CA) at 335, in which Cooke J stated: “the modern practice of the Court should be sufficiently adaptable to accommodate the present type of claim without requiring the ritual of another action”.
7 Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) at 385.
8 Oraka Technologies Ltd v Geostel Vision Ltd [2015] NZHC 991 at [17], citing Body Corporate 325261 v McDonough [2014] NZHC 1821.
9 See Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd [1989] 3 NZLR 304 (CA) at 309; Chilcott v Goss [1995] 1 NZLR 263 (CA) at 272-273; Marr v Arabco Traders Ltd (No 8) HC Auckland A1195/77, 12 March 1987 affirmed on appeal in Elders Pastoral Ltd v Marr, above n 6.
10 Elders Pastoral Ltd v Marr, above n 6.
11 Body Corporate 177519 v Auckland City Council HC Auckland CIV-2005-404-5563, 24 May 2011.
12 Fordham v Xcentrix Communications Ltd (1996) 9 PRNZ 682 (HC) at 683.
13 Monster Energy Company v Ox Group Global Pty Ltd [2016] NZHC 2124 at [28].
[13] Delay in making an application may arise from the late realisation of issues with pleadings. For example, Associate Judge Bell recognised that:14
The need to amend may come from a late realisation of a mismatch between the pleadings and the evidence, that sometimes comes when evidence is prepared … While the need to repair the pleading might have been seen earlier, the court generally does not bar leave for that reason.
…
A pleadings decision goes to whether the party should be given the opportunity to prove the matters that they wish to put in issue.
[14] In essence, and as Duffy J noted in Whakatane District Council v Bay of Plenty Regional Council, an application for leave to permit late amendments to a pleading:15
… requires the Courts to conduct a balancing exercise between the general concern that parties to litigation comply properly with procedural requirements and the particular interest in each case of ensuring that the case is justly determined.
Discussion
[15] I am reasonably confident that the applicants would not have to seek further evidence to respond to the amended pleading. The new arguments can be made and answered on the discovered material and the evidence filed.
[16] The new pleadings add complexities that might mean the two days allocated for the hearing will be insufficient. But, that remains to be seen and the presiding Judge would, given the nature of the amendments, likely have the option of requiring written rather than oral argument.
[17] The merits of the new pleadings are not apparent. But, neither can they be dismissed.
[18] The real controversy between the parties is the standing of the encumbrance given the basis on which it came to be registered. That, in part, goes back to the circumstances in which the (now defunct) Franklin District Council imposed the condition prescribing the encumbrance.
14 Body Corporate 366567 v Auckland Council (Gore St) [2021] NZHC 491 at [28] and [31].
15 Whakatane District Council v Bay of Plenty Regional Council (2008) 19 PRNZ 91 (HC) at [10].
[19] In my view, it is in the interests of justice that the parties have the opportunity to ensure that the real controversy is determined in one hearing rather than leaving unargued issues which are pertinent to the final resolution of the controversy.
[20] The second respondent has been late in filing its evidence. I accept that it was upon consideration of its evidence that the need for the amended pleading was recognised. The applicants have already responded to the late filing of the second respondent’s evidence. I do not see significant prejudice to the applicants, or the first respondent, if the amended pleadings are permitted.
Decision
[21]The second respondent’s application is granted.
[22] The proposed timetable is out of date. Leave is reserved to the parties to seek an amended timetable if they cannot agree one.
[23]Costs are reserved.
Brewer J
Solicitors:
Langsford Law (Wellington) for Applicant
Waikato District Council (Ngāruawāhia) for Second Respondent Graham & Co (Auckland) for Second Respondent
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