Te Runanga-a-iwi O Ngati Kahu v Carrington Farms Limited HC Whangarei CIV 2010-488-348
[2010] NZHC 1565
•13 September 2010
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2010-488-000348
UNDER AND UNDER
IN THE MATTER OF
the Declaratory Judgments Act 1908
the Judicature Amendment Act 1972
an application for declarations in respect of
settlement agreements dated 5 March 2001
and 16 May 2002
AND
IN THE MATTER OF
sections 93, 94, 94A-D and 104 of the
Resource Management Act 1991BETWEEN
TE RŪNANGA-Ä-IWI O NGÄTI KAHU Applicant
AND
CARRINGTON FARMS LIMITED First Respondent
AND
CARRINGTON ESTATE LIMITED Second Respondent
AND
CARRINGTON RESORT LIMITED Third Respondent
AND
FAR NORTH DISTRICT COUNCIL Fourth Respondent
Hearing:
7 September 2010
Counsel: P F Majurey and J Kirby-Brown for Applicant
I M Gault and R A Havelock for First, Second and Third Respondents
J S Baguley and G Day for Fourth Respondent
Judgment: 13 September 2010
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 2.30pm on the 13th day of September 2010.
TE RUNANGA-A-IWI O NGATI KAHU V CARRINGTON FARMS LIMITED AND ORS HC WHA CIV-
2010-488-000348 13 September 2010
RESERVED JUDGMENT OF GENDALL J
[1] This is an interlocutory application seeking interim orders under s 8 of the Judicature Amendment Act 1972. The applicant (Te Rünanga) seeks to restrain the first, second and third respondents (Carrington) from exercising rights under a land use resource consent granted to them by the Far North District Council (the Council) on 22 December 2008, or any preparatory works undertaken to implement that consent.
[2] In the substantive proceeding there are three causes of action. Two of these seek judicial review through challenge to the exercise by the Council of its powers. First, Te Rünanga plead that the Council erroneously dealt with the application of Carrington for resource consent on a non-notified basis. Secondly, they claim that the grant of consent itself proceeded, and was made on, an erroneous and unlawful basis in that the proposed activity was a permitted activity. Instead, it pleads that the activity is a restricted discretionary activity, which required the Council to consider, and be satisfied on, various requirements of the district plan including effects on tangata whenua, and the extent to which the activity may adversely affect cultural and spiritual values and effects on matters of national importance including matters under s 6(a) of the Resource Management Act (the Act).
[3] A separate cause of action pleads a breach or anticipatory breach of a settlement agreement as between Te Rünanga and Carrington, and seeks a declaration and consequent injunctions in reliance upon the settlement agreement, based upon its proper interpretation. That agreement settled or resolved earlier different judicial review proceedings between Te Rünanga, Carrington and the Council relating to resource consents granted to Carrington in 1999.
[4] The declaratory judgment cause of action seems to be one of contract as between Te Rünanga, Carrington and the Council given that, apart from other matters, cl 6 of the Settlement Agreement of 5 March 2001 records that the Council agrees that Te Rünanga would be an affected party for the purposes of s 94(2) in
respect of any further development of the site the subject of the earlier judicial review proceedings.. Whether or not the Council could limit its statutory power, if it did, is not a matter which seems to me to be amenable to the Court’s determination in these judicial review proceedings for the granting of interim orders under s 8, which are restricted to the exercise of a statutory power.
Background
[5] There is an extensive background of dealings with, and the relationship between, Te Rünanga and Carrington interests. Te Rünanga represents several hapü and iwi, who hold mana whenua (trusteeship of land) on beaches and adjacent coastal and rural land on the Karikari Peninsula in Northland. It is an attractive and unique environment. Carrington Farms Ltd and its associated companies hold rural and other land in that area and originally 3,000 acres were acquired with the intention of using the land as a combination of farming, subdivision and establishment of a tourist facility.
[6] In 1999 Carrington obtained land use consent to enable a country club to be established and operated, including a golf course, lodge, restaurant, accommodation sites and ancillary buildings. The development is named “Carrington Resort” and has hotel accommodation, a golf course and other high value resort facilities.
[7] At the same time the 1999 land use consent was granted there was also granted a subdivision consent enabling the country club development to be subdivided to provide for 384 accommodation units in a large complex. Further consent was granted on land opposite from that of Carrington Resort to enable the establishment of a vineyard/winery complex. Those resource consents were granted on a non-notified basis under the provisions of the Territorial Authorities Transitional District Plan.
[8] Te Rünanga brought judicial review proceedings in early 2000 to challenge the 1999 resource consent applications. It was those proceedings that were settled by the agreement of 5 March 2001, which was amended by a further agreement on
16 May 2002 (but signed only by the Council in 2004 because it had been considering changes to the district plan).
[9] Further consultation occurred between the parties to review or determine measures that could be included in the proposed Far North District Plan. Carrington filed submissions on the proposed district plan, which was publicly notified on
1 April 2000, and sought an inclusion a special area or zone to be known as the “Carrington Estate Special Zone”. The Council did not accept all aspects of the submission so Carrington filed an appeal in the Environment Court on 29 August
2003. This was settled and the parties finalised the incorporation of the Carrington Estate Special Zone into the District Plan by a consent order of the Environment Court on 21 August 2004. Te Rünanga participated in the agreed approach. Following that the amended settlement agreement was signed by the Council on 26 August 2004.
[10] What followed then was that Carrington applied in January 2008 for the land use consent in relation to 12 dwellings, which was amended on 30 December 2008. This application concerned a restricted discretionary activity requiring consent confined only to two specific matters, namely traffic intensity and access way dimensions. The application contained rudimentary earthworks information, namely a statement from a consultant planner:
This rule allows 2,000m3 in any 12 month ... providing no cut or fill is greater than 1.5m. Each site would not require earthworks of this nature.
The rule (in the plan) in fact allows 5,000m3 per 12 month period as a permitted activity, so the figure 2,000m3 was clearly in error and treated as such by the Council which dealt with the application on the basis of 5,000m3.
[11] The consent was granted on a non-notified basis on 22 December 2008. It is the non-notified decision, as well as the substantive grant of consent which are the subject of the present judicial review proceedings.
[12] For completeness, it is necessary to record what has happened since then. In
March 2009 Carrington applied to the Council for resource consent to subdivide the
Karikari property, to provide 12 individual allotments for the dwellings, which had been the subject of the December 2008 consent. Te Rünanga opposed that application. That subdivision consent was granted on 6 October 2009 and Te Rünanga filed an appeal to the Environment Court against that decision. The appeal was heard on 14 May 2010, and the Environment Court has reserved its decision which is yet to be delivered.
Judicature Amendment Act 1972
[13] Section 8 provides that:
... the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
(a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:
(b) .... (c) ....
[14] Sometimes Courts adopt an approach similar to the application of principles when considering interim injunctions. But as the Court of Appeal made it clear in Carlton & United Breweries Ltd v Minister of Customs1 the power given to the Court under s 8 is not to be restricted by formulations found in American Cyanamid Co v Ethicon Ltd.2
[15] Obviously, the Court is concerned only with the interlocutory application for an interim order and cannot deal with the ultimate merits of the judicial review proceedings. In determining whether interim relief is necessary to preserve the position of the applicant, the test has to be whether it is “reasonably necessary”. If that condition is satisfied, then the Court has a wide discretion to consider all the circumstances of the case, including apparent strength or weaknesses of the claim for review and all the repercussions, public or private of granting interim relief. The
answer has to depend on an assessment by the Judge of all the circumstances of the
1 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
2 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).
particular case, with the nature of the review proceedings being material, as is the character, strength and purpose of the legislation under which the decision was made.
[16] The authorities and the principles are not in dispute. The statutory threshold is that interim relief is necessary for the purpose of preserving a plaintiff’s position, and until that threshold is met the discretion to grant interim relief cannot be exercised. Counsel for both principal parties have referred me to a wealth of cases, all of which illustrate the application of a flexible approach, and principles adopted in dealing with s 8 applications. Generally, the purpose of interim relief is to protect an applicant who might otherwise be prejudiced unfairly by any delay in the final substantive hearing occurring and being determined. If it is likely that events may occur within the intervening period, which would lead to unfair prejudice to an applicant who was eventually to succeed in the judicial review proceeding, interim orders may be granted because later remedial matters might prove to be futile. But it is not necessarily decisive that the successful judicial review would or might be rendered nugatory without an interim order, because there may often be other factors to be taken into account by the Court in the exercise of its discretion which may
weigh against an applicant.3
[17] Clearly the implementation of resource consents which are the subject of appeal to the Environment Court should not occur whilst that appeal is pending. Nor can judicial review proceedings be brought if there is a right to refer any matter for inquiry or appeal to the Environment Court, which has to be first exercised and determined.4 So the 2009 subdivision consent being the subject of an appeal to the Environment Court remains unimplemented. But Te Rünanga did not have any right to appeal to the Environment Court against the 2008 consent or in relation to the settlement agreement and Carrington counsel argued in the Environment Court that it
did not have jurisdiction to determine any such issues relating to the 2008 consent.
3 Abel Fisheries Ltd v Stuart [1997] 2 NZLR 87 (HC).
4 Section 96, Resource Management Act 1991; Love v Porirua City Council [1984] 2 NZLR 308 (CA).
Applicant’s contentions
[18] On behalf of Te Rünanga counsel submitted that there is a serious issue to be tried because in the granting of the consent application, and in not notifying it, whether to the public or Te Rünanga, the Council erred. That arose because it did not have sufficient information to be satisfied that the proposed earthworks were less
than 5,000m3 in any 12 month period so as to be able to conclude that the effects on
waahi tapu could properly be excluded from consideration. Reference is made to the requirement under s 6 of the Act that in the exercise of functions and powers the Council was required to recognise and provide for matters of national importance, which included (s 6(e)):
(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
[19] On behalf of Carrington Mr Gault submitted that this submission was misconceived because the application related only to two matters for which consent was necessary, namely traffic intensity and access way dimensions. Earthworks are a permitted activity provided they do not exceed the limit provided by the rule, and the application, itself, says this would not occur. But on behalf of Te Rünanga it was argued that there was an obligation on the Council to inquire further as to the correctness of that intimation and it could not make either determination (that is non- notification, or the substantive consent), without doing so. Mr Majurey further submitted that the Council did not receive or require, as it should have, information from a qualified expert on quantum of earthworks required for the implementation of the dwellings’ application; it had no plans, sections or levels for building platforms or information to independently assess the total volume of earthworks likely to be involved; it did not seek (as counsel submits it should have) further information pursuant to s 92 of the Act nor receive evidence or information as to the effects and harm that the estimated volume of earthworks might cause to the waahi tapu (te ana o taite) and to Te Rünanga.
[20] In contrast Mr Gault submitted that an interim order was not necessary to protect the position of the applicant because, fundamentally, earthworks as contemplated in the application, were a permitted activity under the plan. No
consent was required in respect of those and the consent that was granted did not authorise earthworks beyond that permitted. He said the Council had no obligation to inquire further because of the activity permitted within the District Plan Rules. He argued that the merits of the applicant’s substantive proceedings are weak to the extent of having “no prospect” of succeeding and obtaining an injunction to stop earthworks as a substantive remedy because of their limited permitted status. He submitted that there is no position of Te Rünanga which is “necessary” to preserve because it must relate to “action that is or would be consequential on the exercise of the statutory power” and the exercise of such power is simply to implement the consent that was granted and perform permitted earthworks not the subject of the grant. That is Carrington’s entitlement under the district plan. Counsel argue that serious prejudice would arise to it if an interim order was granted because of delays already experienced in implementing other consents, the Environment Court appeal, delays in cash flow generation and economic losses arising through such dely.
[21] Those are the essential platforms of the respective arguments addressed by counsel and I mean no disservice to them if I do not go into greater or more intricate detail. But I do not think it is necessary given that the issues, and law, are clear, even though the ultimate conclusion on the interim relief application may not be so simple. That is often the case where the Court’s discretionary function is sought to be exercised under s 8 in judicial review matters.
Discussion
Is there a serious issue between the parties?
[22] Appropriate weight has to be given to all the circumstances, including the nature and type of proceeding, its character and the scheme of the legislation and some assessment of the prima facie strength of the applicant’s challenge to the exercise of the Council’s power. Carrington say that the proceedings are bound to fail. Notification of the application was not required as there was no possible basis for the matters upon which consent was sought to have any effect upon Te Rünanga. Correspondingly, the substantive consent granted could not be impugned given that the only challenge it seems is to performance of earthworks, which were permitted in
any event. On the other side of the coin, however, Te Rünanga contend that the Council should have requested further information under s 72 (even though the section is discretionary) as such was necessary in order for it to reach an informed decision especially on the s 6(e) matter of national importance and the Council erred by simply accepting a bald assertion contained in Carrington’s application without making any independent or other inquiry and as a consequence the adverse effects on waahi tapu were wrongly excluded from consideration.
[23] The Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd discuss the issue of information that an authority should have in making a decision as to notification, or not, of resource consent applications.5 Blanchard J said:6
... the information in the possession of the consent authority must be adequate for it: (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all- embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, especially so where an expert opinion is tendered.
[24] It is obvious that the calculations as to the extent of excavations were based on assumptions as is apparent from exchanges that appear to have occurred in the Environment Court (on the appeal relating to the 2009 consent) between the Judge and counsel. It is the absence of the information, which Te Rünanga says, affects any non-notification and the substantive decisions. But of course, as the application did not relate to earthworks and the consent granted did not authorise this outside the limits of the district plan, was there any requirement for the Council to inquire further?
[25] I accept the argument of Mr Gault that the strength of Te Rünanga’s case is
weak. But the Court, at this stage, cannot and must not reach any conclusion as to the merits, even if at first sight they may appear tenuous. But the applicant’s case
5 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
6 At [114] – [115].
relates to a wide inquiry into how far a Council is required to go when exercising its functions and powers in terms of s 6 of the Act. The argument appears to be that, notwithstanding that an application as framed may not require notification, if in truth and substance some investigation or inquiry into the extent of earthworks was an essential pre-requisite (to an assessment of notification, or of the granting of consent), because it was likely to involve matters of national importance involving Mäori, their culture and sacred sites, then such information had to be sought.
[26] In the Privy Council decision in McGuire v Hastings District Council
Lord Cooke of Thorndon in delivering the judgment of their Lordships said:7
[the Act] contains many provisions about the protection of the environment, social and cultural wellbeing, heritage sites, and similar matters. The Act has a single broad purpose. Nonetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Maori issues. By s 6, in achieving the purpose of the Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for various matters of national importance, including “(e) The Relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu [sacred places], and other taonga [treasures]”. ... These are strong directions, to be borne in mind at every stage of the planning process.
[27] Did such considerations improve upon the Council in this case to inquire further, despite what earthworks which were said to occur were permitted?
[28] The issue for ultimate determination may be whether the Council was bound to adopt an inquisitorial or investigative approach where it had (if the evidence goes so far as to establish that) information that might bring into play s 6(e) matters, even though a resource consent application on its face could not affect Mäori issues, yet the implementation of it through necessary and consequential permitted activity, nevertheless required investigation, consideration and information as discussed in Discount Brands Ltd v Westfield (New Zealand) Ltd. Without hearing argument I do not know the answer to that question. At this point all the Court can do is to say that slender as it may appear at first glance, the applicant’s case is not incapable of
argument.
7 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC) at [21].
What are the interests of Te Rünanga that it seeks to be preserved and what is necessary to preserve its position?
[29] This is really the central issue in this interim application. Te Rünanga contend that if the consented activity proceeds with earthworks undertaken and they go outside that which is permitted then it would be too late to intervene. It says it is necessary to preserve the status quo to ensure that earthworks are not commenced until the judicial review proceedings are determined. It says Carrington has refused to provide undertakings, foreshadowing completion of earthworths within six to twelve months. It is a fact that the earthworks are not proceeding in any event until the Environment Court has determined the appeal in respect of the subdivision consent. Counsel from the bar, however, indicated that the granting or refusal of that consent by the Environment Court would not in the end impede the reconstruction of the dwellings.
[30] There is considerable force in Mr Gault’s argument that the clear purpose of s 8 is to preserve a plaintiff’s position. That is a position to which a plaintiff was entitled if it succeeded in its application. Its purpose is not to preserve something to which a plaintiff is not entitled because, counsel says, Te Rünanga was never entitled to be heard in respect of the 2008 resource consent application and they could not realistically point to a justiciable issue to be raised on the substantive application. Mr Gault referred to and relied upon dicta in the cases of Woodhouse v Auckland
City Council8and Whale Watch Kaikoura Ltd v Transport Accident Investigation
Commission9. But to some extent the argument may be circular, because if there had been notification to Te Rünanga it would have been entitled to submit on the consent application. Of course, I recognise the force of the argument that notification was not required because of the limited nature of the consents sought. But as I discern the concerns which underpin the argument of Te Rünanga they are that there should have been proper inquiry and investigation by the Council into the matters contained in the application, which clearly related and referred to earthworks being undertaken
on a preliminary basis before the application was heard and that if that had been
8 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).
9 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55 (HC).
undertaken the Council would (or should) have concluded that a probable consequence was earthworks which required resource consent.
[31] As I have said the Court cannot reach any view on that matter at this stage, which would obviously be argued and firmly contested at the substantive hearing, and which may appear, at least, to present a significant hurdle to Te Rünanga. If it overcame that hurdle and the consent was to be set aside, yet Carrington have proceeded to perform earthworks and act upon the consent in the meantime, the horse would have bolted if those earthworks extend beyond that permitted. Carrington through its counsel contend that that will not happen whereas Te Rünanga’s position is; how would we know until it is too late?
[32] Obviously, the territorial authority may monitor compliance with the requirements of its district plan and take punitive steps if that is breached. So too, it, and others, may take usual interim injunction proceedings if there is a threatened infringement of legal rights. In addition, the position of Te Rünanga, and other Mäori interests, are afforded some protection under the Historic Places Act 1993 if a waahi tapu site is discovered because work in that vicinity must be ceased forthwith and the Historic Places Trust and local iwi contacted immediately. Section 99 of that Act creates certain offences for damage to archaeological sites without the authority of the Trust and very substantial fines could be imposed. These are all factors that I must place on the scale in assessing whether, in the end, interim orders should be granted.
[33] No undertaking as to damages has been given and that is not mandatory, although there are some cases where the Court requires such, and a lack of merits may sometimes point to an undertaking being required10 and the Court has an inherent power to require an undertaking as a condition of granting interim relief. It is a power, however, which has to be exercised sparingly where judicial review is sought in public law issues because the Court should not encourage fiscal barriers to
possible meritorious claims to review of administrative decisions, especially where
they affect public interest.11 But a refusal or declining to provide an undertaking as to damages can weigh against the Court’s discretion in the granting of an interim order in cases where ultimate merits are not strong. In this case, however, I regard it as neutral and would not refuse interim relief solely because of that.
[34] I am mindful that in its first cause of action Ngäti Kahu, apart from seeking declarations, seek to enforce the settlement agreement through declarations and injunctions. Those remedies, if existing under the settlement agreement, arise out of contract and can be pursued irrespective of the judicial review causes of action. Restraining injunctions could be sought but such would require the giving of the usual undertaking for damages. Counsel for Carrington observed that may be the reason why the interim order under s 8 is sought, in order to obviate the need for such undertaking. But it is a remedy, on an interim basis available to Te Rünanga if it wishes to pursue it and is not dependent upon there being any s 8 requirement of “preserving its position”.
[35] The delay in bringing the judicial review proceedings has been significant. The land use consent was granted on 22 December 2008 and Te Rünanga notified of this on 29 May 2009. There is evidence that some vegetation clearance activity was undertaken by Carrington in April 2009. Thereafter it participated in opposing the application for subdivision consent which was granted on 7 October 2009 and it filed its appeal to the Environment Court later that month. It participated in the Environment Court appeal hearings on 13 May 2010. The current proceedings were filed on 3 June 2010 after closing submissions were made and pending reserved decision of the Environment Court. So, it is a year after Te Rünanga became aware of the land use consent decision and 18 months since the decision itself. Mr Gault submits the long delay has not been satisfactorily explained in the evidence presently before the Court. I agree with that submission. Whilst counsel for Te Rünanga argued that any delay arising to Carrington in being unable to implement the consent if the interim orders were made would not cause it any more prejudice than has arisen through it not, in any event, actioning the consent after it had been granted in October 2008, that is not the point. The issue is whether the delay on the part of
Te Rünanga in bringing these proceedings is of such a length as to disentitle it to the grant of the discretionary interim order.
[36] At the moment the position of Te Rünanga is protected because no steps are being taken by Carrington at least until the decision of the Environment Court is delivered. I am aware of the tight timetabling directions given by Associate Judge Bell on 20 July 2010 and that all affidavits were to have been filed and served by
20 August 2010, with a one day fixture to be allocated. At the moment no fixture has been allocated that I am aware of, but the Associate Judge directed the Registrar to liaise with the Auckland High Court to see if time could be made available for the application to be heard in Auckland earlier than it could be heard in Whangarei. That should be done now to ensure that further avoidable delay does not occur.
Conclusion
[37] Balancing all factors as but I can, I have come to the view that the Court’s discretion should not be exercised in favour of Te Rünanga to grant the interim orders sought under s 8. Essentially, the reasons for this are:
(1)The Court is not satisfied that an interim order as sought is reasonably necessary to preserve Te Rünanga’s position, which can adequately be protected by other measures;
(2)If Te Rünanga are successful in the substantive judicial review proceedings, the consent application would be remitted back to the Council to be determined on a notified basis, and despite whatever evidence is then adduced on the extent of the earthworks issue, the grant of the consents sought are unlikely to be prevented. Te Rünanga cannot prevent what is permitted, nor insist on a condition as to excavation extent, because that is in the rule;
(3) The provisions of s 99 of the Historic Places Act 1993 are known to Carrington and its advisors and there is no suggestion that Carrington would act in breach of that section;
(4)So also, the provisions of the district plan earthworks restrictions are clearly known to Carrington and its advisors, the breach of which would lead to punitive and other sanctions;
(5) The delay in bringing this judicial review, and interim relief, application has not been satisfactorily explained so far, and if there was the urgency that Te Rünanga now says exists it could have been expected to have brought these proceedings and sought interim orders many months ago;
(6) Carrington interests are not actioning the consent at the moment and will not do so at least until after the Environment Court delivers its decision and the outcome of that is in its favour. There is no reason why an early fixture cannot now be granted for the determination of the substantive proceedings on an urgent basis. That probably cannot be in the Whangarei High Court, but as Associate Judge Bell envisaged an early fixture should be able to be allocated in the Auckland High Court, given it now has a full complement of Judges and that Registry is being assisted from time to time by Visiting Judges from Wellington. I direct the Whangarei Registrar to liaise immediately with the Auckland Registry to secure an early fixture;
(7)Te Rünanga has available to it the option of seeking an interim injunction under the Court’s equitable jurisdiction, founded upon its first cause of action being the allegations relating to the settlement agreement to pursue if it wishes. That, of course, would require the giving of the undertaking as to damages however.
[38] So, I have concluded that whilst there may be an arguable issue an interim order is not in my view reasonably necessary for the purposes of preserving Te Rünanga’s legal or factual position under the Judicial Amendment Act 1972. Further, in the exercise of the Court’s discretion I weigh the advantages and
detriments to the respective parties, the current status quo, the public and private repercussions, delay in bringing the interim relief application and the overall justice.
[39] If circumstances should change before the substantive application is heard and sufficient grounds then exist Te Rünanga, naturally, may apply again for an interim order under s 8, or it may pursue an application for interim injunction in the Court’s equity jurisdiction.
[40] The application for interim order is dismissed. Costs are reserved.
J W Gendall J
Solicitors:
Russell McVeagh, Auckland for Applicant
Bell Gully, Auckland for First, Second and Third Respondents
Law North Limited, Kerikeri for Fourth Respondent
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