Rongotai Investments Limited v Land Valuation Tribunal at Wellington

[2019] NZHC 2103

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-495

[2019] NZHC 2103

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review

BETWEEN

RONGOTAI INVESTMENTS LIMITED

First Applicant

RONGOTAI ESTATES LIMITED
Second Applicant

AND

LAND VALUATION TRIBUNAL AT WELLINGTON

First Respondent

2468 LIMITED
Second Respondent

NZ CASH FLOW CONTROL LIMITED
Third Respondent

LYALL BAY PROPERTIES LIMITED
Fourth Respondent

BUNNINGS LIMITED
Fifth Respondent

WELLINGTON INTERNATIONAL AIRPORT LIMITED
Sixth Respondent

WELLINGTON CITY COUNCIL

Seventh Respondent

Judgment: 26 August 2019

JUDGMENT OF JUSTICE DOOGUE

[On the papers]

RONGOTAI INVESTMENTS LIMITED v LAND VALUATION TRIBUNAL AT WELLINGTON [2019] NZHC 2103 [26 August 2019]

[1]                 In 2012 the applicants (Rongotai) and the second to sixth respondents all objected to the Wellington City Council’s general rating revaluation of 17 rating units in Rongotai (the 2012 Objection).

[2]                 The 2012 Objections are part of a wider series of objections to general ratings valuations carried out in 2007, 2012, 2015 and 2018 of a number of ratings units within the Rongotai Area (Rongotai Objections). The determination of the earlier objections may have impacted on the way in which that later objections, including the 2012 Objections, are determined. As a result all of the Rongotai Objections for the different years are being case managed together by the respondent (the Tribunal).

[3]                 The Tribunal heard the objections to be 2007 general rating revaluations (2007 Objections) in March 2019 and released its decision on those objections on 19 July 2019.

[4]                 Rongotai applied to the Tribunal to stay and adjourn the hearing of the 2012 Objections. The Tribunal refused the applications in a reasoned decision on 19 August 2019  and  embarked  upon  the  hearing  immediately.    It   is  expected  to  end  on 3 September 2019.

[5]                 Rongotai applied to judicially review the Tribunal’s 19 August 2019 decision and concurrently filed an application for an interim order staying the hearing of the 2012 Objections pending the determination of the judicial review.

[6]                 The judicial review hearing has been timetabled and set down for a hearing on 10 September 2019. The application for the stay is to be determined on the papers.

[7]                 Rongotai says that in its decision on the 2007 objections (the 2007 Decision) the Tribunal adopted an approach to the assessment of the land value of ratings units subject to leases and “constraints on the owners estate” which differs from previously existing valuation practice. The 2007 Decision is currently the subject of appeal to this Court. Rongotai submits the hearing of the 2012 Objections should be stayed:

(a)The 2007 Appeal has not been heard and it must be to clarify the interpretation and application of the Ratings Valuations Act 1998 which can then be applied to 2012 Objections.

(b)They will be hampered in cross-examination by reason of their inability to prove expert evidence on a crucial issue.

(c)If the hearing continues and Rongotai’s expert evidence is hampered by these problems the evidence before the Tribunal will be deficient.

[8]                 The second, third, fifth and sixth respondents oppose the granting of a stay. They submit Rongatai do not have a position to protect and in the alternative if they do, a stay is not necessary to preserve that position.

Whether or not to grant the stay

[9]Relevant factors usually considered in the exercise of the discretion include:

(a)the strength or weakness of the claim;

(b)statutory framework and context;

(c)public interest in the granting of relief; and

(d)the private and public repercussions of granting relief.

[10]              The respondents dispute Rongotai’s contentions that the 2007 Decision changed the law. They argue that long established authority referred to most recently by the Court of Appeal in Rotorua District Council v Ngāti Whakaue Education Endowment Trust Board says that the valuation required under the Rating Valuations Act 1998 is of the owner’s interest in the land, not of the pure fee simple.1 The contrary positions were not fully argued so in the context of interim relief being sought this point is moot and does not assist Rongotai.

1      Rotorua District Council v Ngāti Whakaue Education Endowment Trust Board [2018] NZCA 143.

[11]              In respect of the second point the decisions being challenged are those on interlocutory applications. The decision on these interlocutory matters do not permanently affect the Rongotai parties’  rights  to  present  their  cases  on  the  2012 Objections and accordingly the decisions will not be influential in the decisions made on the 2012 Objections. Nor do the interlocutory decisions affect their appeal rights in relation to the 2012 Objections.

[12]              In preparation of its case before the Tribunal Rongotai chose not to engage in its evidence with the 2007 Decision. There was ample opportunity to do so if one accepts the procedural chronology contained in the Tribunal Decision. In addition the respondents submit that the Tribunal hearing is now progressing in an order that has permitted Rongotai to address issues in its evidence that should earlier have been addressed in its brief. The Rongotai witnesses are thus now engaging with the legal position enunciated in the 2007 Decision and are preparing to meet the evidence of the other objectors in this regard.

[13]              Further Rongotai have a right to appeal any decision of the 2012 Objections if they wish — including if a decision on the appeal of the 2007 Decision indicates the Tribunal erred in the 2012 Objections.

[14]              In respect of the third point there is no general public interest in a stay being granted and I consider such relief is exceptional in circumstances where the subject hearing is underway and even more so when it is well advanced and there was significant lead time to enable the parties to properly prepare for it.

[15]              In respect of the fourth point the granting to the say has the potential to cause substantial prejudice to the other parties to the proceeding.

[16]              As of midday 22 August, three of the four objectors taking part in the hearing (Bunnings, Wellington International Airport and 2468) have opened their cases and all evidence for these parties (apart from one witness, who was due to give evidence by video from Australia at 3.00 pm on 22 August) has been given and that evidence cross- examined. In addition, the case of the respondent Council has opened and its single witness was under cross-examination. With only Rongotai’s case to be heard there

could be unacceptable waste of resources if the hearing were stayed. Further Rongotai will find itself in the advantageous position of having seen and heard all of the other parties' evidence and tested it without having its own case subjected to any scrutiny.

[17]              I consider there will be both private and public repercussions that militate against the granting of relief. These objections are being heard after considerable delay and the objectors and the public have the right to have proceedings resolved expeditiously and without further delay.

[18]The application for stay is refused.

[19]Costs are reserved.

Doogue J