Speargrass Holdings Limited v Van Brandenburg
[2019] NZCA 684
•20 December 2019 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA296/2018 [2019] NZCA 684 |
| BETWEEN | SPEARGRASS HOLDINGS LIMITED |
| AND | FREDERIKUS PETRUS MARIA VAN BRANDENBURG AND DIANNE MARY JACQUELINE VAN BRANDENBURG |
| Court: | Cooper and Gilbert JJ |
Counsel: | R A Rose for First and Second Appellants |
Judgment: | 20 December 2019 at 10.30 am |
JUDGMENT OF THE COURT
The applications for a stay of execution and other interim orders are declined.
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REASONS OF THE COURT
(Given by Cooper J)
Introduction
On 18 November 2019, this Court dismissed the appellants’ appeal against a decision of Dunningham J.[1] The appellants now seek a stay and/or interim relief pending an application for leave to appeal to the Supreme Court. This application is opposed by the first respondents.
[1]Speargrass Holdings Ltd v van Brandenburg [2019] NZCA 564.
The underlying dispute concerns the construction of an earth mound on the first respondents’ property in the Wakatipu Basin. Judge Jackson in the Environment Court granted a variation to the earthworks consent required for the mound.[2] The appellants, who own property adjacent to the first respondents’ land, appealed that decision to the High Court. In addition, they applied for judicial review of the second respondent’s decision not to notify a resource consent application for the construction of the mound, and for an order under s 333 of the Property Law Act 2007 (the PLA) requiring removal of the mound.[3] These “three discrete proceedings” were heard together.[4]
[2]Flax Trust v Queenstown Lakes District Council [2016] NZEnvC 202 at [178].
[3]Speargrass Holdings Ltd v Queenstown Lakes District Council [2018] NZHC 1009 at [4]. The volume and area of the mound as built exceeded the mound that was originally granted consent by the second respondent. The larger mound was the subject of a further consent application (essentially an application to vary a condition of the original consent), rejected by the second respondent but then allowed by the Environment Court on appeal.
[4]At [5].
In relation to the appeal from the Environment Court’s decision, Dunningham J decided that the Environment Court Judge erred in several material ways.[5] Consequently, that appeal was allowed, and the Environment Court’s decision granting a variation of the resource consent was set aside.[6] In relation to the judicial review application, the Judge held that the second respondent had erred in making the non‑notification decision,[7] but declined relief both in respect of that application and the PLA application.[8]
[5]At [115].
[6]At [116].
[7]At [172].
[8]At [274]–[275].
The appellants appealed from the decision of the High Court in respect of the judicial review and PLA proceedings. The decision on the appeal from the Environment Court decision was not appealed to this Court.
The stay application
The appellants seek a stay and/or interim orders, “preventing/halting any further progression of all outstanding aspects of the Environment Court reconsideration proceeding … until release of the Supreme Court’s decision regarding this Court’s decision” and staying execution of this Court’s judgment. Counsel for the appellants, Ms Rose, advised that an application for leave to appeal to the Supreme Court would be filed and that has now occurred. Ms Rose submitted that the proposed appeal will be rendered nugatory if the orders sought are not granted. She relies on r 30 of the Supreme Court Rules 2004, which, it is argued, allows this Court to order a stay, even in circumstances where a judgment is “non‑executory”. Counsel indicated that in the meantime, a hearing to reconsider the relevant resource consent has been scheduled in the Environment Court in February 2020.
The application is opposed by the first respondents, on the following grounds:
(a)The proceedings relating to the Environment Court’s decision was not before the Court of Appeal, as the High Court’s decision setting aside that decision was not appealed. Accordingly, this Court does not have jurisdiction to grant the relief sought.
(b)The motive behind the stay application is to delay the proceedings before the Environment Court until after the retirement of Judge Jackson, who will not be sitting after March 2020.
(c)It is appropriate for Judge Jackson, who made the decision that was set aside on appeal to the High Court, to rehear the matter.
Rule 30(2) of the Supreme Court Rules provides that:
Pending the determination of the application or the appeal, the court appealed from or the Supreme Court may, on application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.
Rule 30(3) further provides that a determination under r 30(2) may “relate to execution of the whole or part of the decision or to a particular form of execution”.
The decision of the High Court setting aside the Environment Court’s decision was not the subject of the appeal to this Court. That being the case it is unclear how this Court would have jurisdiction to make the order for a stay now sought. It is not this Court’s decision that is being “executed”[9] but that of the High Court, on an appeal that never reached this Court. Nor will any further proceedings before the Supreme Court be rendered nugatory. Assuming for present purposes that Court were to grant leave and allow the appellant’s appeal, the result would be a judgment overturning this Court’s decision upholding the High Court’s decision on the application for review and/or overturning our decision declining to make orders under the PLA. The former might result in the original resource consent granted by the Council being set aside. Any variation of that consent granted by the Environment Court would be subject to the same flaw as the Council’s decision: that is, notionally, that the application for the consent had not been notified. Success on the PLA appeal would have the normal consequences. Any decision by the Environment Court made in the meantime could not affect implementation of the Supreme Court’s judgment.
[9]We resort to inverted commas here because of the inherent tension in the concept that the Environment Court could be said to be executing a judgment when it is fulfilling its statutory duty of determining an appeal.
We also observe that although Ms Rose is right that a stay can be granted in respect of a “non-executory” judgment (this is the effect of r 30(2)(b) of the Supreme Court Rules), the rule contemplates interim relief, as does r 12(3)(b) of the Court of Appeal (Civil) Rules 2005. Here, any interim relief could only be in respect of a proceeding (the Environment Court appeal) not before the Supreme Court or this Court, and the relief would prevent the Environment Court commencing a hearing on which it is lawfully entitled to embark: there is an unresolved appeal awaiting hearing in that Court which it is bound to determine. If the appellants wish to prevent that occurring, the appropriate course would be for an application for an adjournment of those proceedings to be made to that Court, relying (to the extent it can) on the new circumstance that the appellant has sought leave to appeal to the Supreme Court. If that application were rejected, the High Court could be approached, in its supervisory jurisdiction, on an application for review. We make no comment on what that Court might do if such an application were made. But in our view that would be a preferable approach to the course that has been followed, and it would have the advantage of preserving this Court’s appellate role if the High Court’s decision were thought to be affected by error.
Another alternative would be for an application for a stay to be made to the High Court. That Court was at least once seized of the proceeding concerning the Environment Court decision which, as already noted, this Court never was. And if there is a decision being implemented it is that Court’s decision rejecting the appeal against the Environment Court’s decision.
For these reasons the applications for a stay of execution and other interim orders are declined.
Solicitors:
Bell Gully, Auckland for First and Second Appellants
Gallaway Cook Allan, Dunedin for First Respondents
Meredith Connell, Wellington for Second Respondent
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