Spackman v Queenstown Lakes District Council no.3 HC Dunedin CIV 2006-412-000843

[2007] NZHC 1881

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2006-412-000843

BETWEEN  MICHAEL SPACKMAN Applicant

AND  QUEENSTOWN LAKES DISTRICT COUNCIL

First Respondent

AND  RAYLENE JELLEY, WILLIAM JELLEY, AND LYALL WILLIAM JELLEY

Second Respondents

Hearing:         19 June 2007 (By Telephone) Appearances: P J Page for Applicant

R S Cunliffe for First Respondent

F B Barton for Second Respondents

Judgment:      20 June 2007

JUDGMENT NO. 3 OF FOGARTY J

[1]      The applicant has applied for interim orders staying the execution of the judgment dated 4 April setting aside the consent of the Council as to the subdivision creating Lot 2 but leaving intact subdivision consents to Lots 3 and 4.

[2]      I  have  heard  this  morning,  by  telephone,  oral  submissions  as  to  the jurisdiction of the Court to make the order.  I have been assisted by consideration of the decision of Fisher J in  Faavae v Minister of Immigration (1997) 11 PRNZ 168. I choose to follow that decision and act pursuant to the Court’s inherent jurisdiction, rather than to find the jurisdiction in s 8(1) of the Judicature Amendment Act 1972. I have already drafted and am about to settle judgment No. 2   which resolves the terms of the final order.  It would be an artifice to suggest that there has not been a

final determination of these proceedings in the High Court.

SPACKMAN  V QUEENSTOWN LAKES DISTRICT COUNCIL  AND ANOR HC DUN CIV 2006-412-

000843  20 June 2007

[3]      In opposition to the order, Mr Barton for the second respondents, (to a degree supported by Mr Cunliffe for the first  respondent, circumspectly as appropriate) argues that there is no direct prejudice to the applicant/appellant by reason of the sale of Lots 3 and 4.   But rather, the argument is that allowing the subdivision of Lots 3 and 4 will establish fix the boundaries of Lot 2 and so be a disadvantage when the Council comes to reconsider the subdivision creating Lot 2.

[4]      Mr  Barton  argues  that  on  17  November  2006  that  was  not  seen  as  a disadvantage.      At   that   time   the   applicant/appellant   were   agreeable   to   the development to the disposal of Lots 3 and 4 and were focussing on retaining control over the development  of Lot  2.   Mr  Barton also  submits that  the  focus  of the application for judicial review was in fact on Lot 2.

[5]      Mr Page, for the applicant/appellant, submits that he needs to present to the Court more detailed analysis and potentially affidavits to expose the prejudice that he is contending for if there is no interim order staying the execution of the judgment of the High Court pending his client’s appeal being heard by the Court of Appeal.

[6]      Mr  Barton  acknowledges  that  it  is  now  the  dead of  winter  and  not  the appropriate time to market the property.

[7]      For  these  reasons,  an  interim  order  is  made  pursuant  to  the  inherent jurisdiction of the Court preventing the first respondent and the second respondents perfecting the Council subdivision consent to Lots 3 and 4 until further examination of the issues of this Court on Wednesday, 5 September, and until a further determination of this Court after hearing argument on that date.

[8]      The parties have agreed to the following timetable:

1.The applicant/appellant is to file affidavits and submissions in support of a stay beyond 5 September, by 27 July.

2.The  first  and  second  respondents  have  until  17  August  to  file submissions and/or affidavits in reply.

3.The applicant/appellant has until 24 August to file submissions and/or affidavit in limited reply.

[9]      At this stage I am programmed to be the Judge on circuit in Dunedin on 5

September and therefore anticipate that the hearing will be before me. [10] Costs are reserved.

Solicitors:
Gallaway Cook Allan, Dunedin, for Applicant
Macalister Todd Phillips, Queenstown, for First Respondent
Anderson Lloyd Caudwell, Dunedin, for Second Respondents