Townscape Akoranga Ltd v Auckland Council
[2013] NZHC 2367
•11 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2012-404-3373 [2013] NZHC 2367
UNDER the Judicature Amendment Act 1972
AND UNDER Declaratory Judgments Act 1908
IN THE MATTER OF a decision made pursuant to the Weathertight Homes Resolution Services Act 2006 and Gazette Notice No. 4866
BETWEEN TOWNSCAPE AKORANGA LTD First Applicant
TOWNSCAPE SECURITIES AUCKLAND LTD AND ORS Second Applicants
ANDAUCKLAND COUNCIL First Respondent
THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Second Respondent
CIV 2012-404-4258
AND UNDER Part 1 of the Judicature Amendment Act
1972
IN THE MATTER OF Weathertight Homes Resolution Services
Act 2006
BETWEEN AUCKLAND COUNCIL Applicant
ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent
TOWNSCAPE AKORANGA LTD Second Respondent
TOWNSCAPE AKORANGA LTD v AUCKLAND COUNCIL [2013] NZHC 2367
CIV 2012-404-4260
AND UNDER Part 1 of the Judicature Amendment Act
1972
IN THE MATTER OF the Weathertight Homes Resolution
Services Act 2006
BETWEEN AUCKLAND COUNCIL Applicant
ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT First Respondent
BODY CORPORATE 212138
Second Respondent
Hearing: 22, 23, 24 April and 1 July 2013
Counsel: J A Farmer QC, A Thorn and M Bullivant for Townscape entities
G J Christie and D J Barr for Auckland Council
R B Chan and T I Hallett-Hook for the Ministry of Business, Innovation and Employment
Judgment: 11 September 2013
JUDGMENT OF HEATH J
This judgment was delivered by me on 11 September 2013 at 2.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Contents
Three judicial review proceedings [1] The legislative background [3] The nature of the buildings [8] The issues [10] The financial assistance scheme [19] The Gazette Notice [27] The “Relationship Agreement” [29] The Chief Executive’s decision [37] Analysis
(a) The “dwellinghouse” issue [46]
(b) Contribution criteria: who is the decision-maker? [58]
(c) Relief [67] Result [72]
Three judicial review proceedings
[1] In these three proceedings, relief is sought in respect of decisions made by the Chief Executive of (what is now) the Ministry of Business, Innovation and Employment (the Chief Executive and the Ministry, respectively) about whether accommodation units in which Townscape Akoranga Ltd, Townscape Securities Ltd and Body Corporate 212138 (the Townscape entities) have interests qualify for
financial assistance to meet the cost of repairing the units.1 The ability to seek
financial assistance was established through amendments, made in 2011, to the
Weathertight Homes Resolution Services Act 2006 (the Act).
[2] In effect, these claims represent the third generation of “leaky home” litigation. The first concerned residential dwellings.2 The second involved commercial and mixed use developments.3 This dispute concerns the qualifying criteria for the Government’s financial assistance package. That scheme was devised
to divert litigation costs to meet the cost of repairing a defective building.
1 Weathertight Homes Resolution Services Act 2006, s 125B(1), definition of “financial assistance measures”. See paras [6] and [7] below.
2 For example, North Shore City Council v Body Corporate 188529 [2011] 2 NZLR 289 (SC).
3 For example, Body Corporate 207624 v North Shore City Council [Spencer on Byron] [2013] 2
NZLR 297 (SC).
The legislative background
[3] Following fundamental changes to the regulation of building practices and materials in the early 1990s, a significant number of weathertightness problems have affected domestic dwellings and other structures. The problems were so widespread that the term “leaky home syndrome” was coined to describe them. The need for property owners to obtain some redress (in order to meet repair costs) caused a flood of litigation in this Court.
[4] The failures were once described by Arnold J as “systemic ..., [and] occurring at all levels within the building industry, in both the public and private sectors”.4 He added that much of the litigation in the High Court demonstrated “why a problem of the size and nature of that resulting from leaky home syndrome is unsuitable for resolution by means of litigation but requires some other, more comprehensive solution”.5
[5] At the time those remarks were made, legal proceedings were being brought both in this Court and under a specific statutory regime6 that had been designed to enable litigation of this type to be resolved by specialist adjudication, or mediation.7
Until 2011, it was necessary (if settlement were not achieved by negotiation) for parties to mediate or litigate their disputes, whether before the Courts or the Weathertight Homes Tribunal.8
[6] The amendments made to the Act in 2011 (the 2011 Amendment),9
introduced a process by which owners of certain types of dwellings10 could seek financial assistance to pay a proportion of the actual repair costs. The intention was
4 North Shore City Council v Body Corporate 188529 [Sunset Terraces] [2010] 3 NZLR 486 (CA)
at para [208].
5 Ibid, at para [206].
6 Initially under the Weathertight Homes Resolution Services Act 2002. The same procedures are now available under the Weathertight Homes resolution Services Act 2006.
7 For background to the changes that resulted in the 2006 Act, see Auckland Council v Chief Executive of Ministry of Business, Innovation and Employment [2013] NZHC 912 at paras [19]– [21].
8 Established by s 101 of the Weathertight Homes Resolution Services Act 2006.
9 Weathertight Homes Resolution Services (Financial Assistance Package) Amendment Act 2011,
ss 4, 5 and 7. Section 7 introduced Part 1A as the “financial assistance package”.
10 Falling within the definition of “dwellinghouse” in s 8 of the Weathertight Homes Resolution Services 2006. Section 8 is set out at para [46] below and its effect is discussed at para [23] below.
for the Crown to contribute 25% of proved repair costs. A further 25% could be provided by participating territorial authorities. Unless there were other additional contributing parties,11 the balance of the cost would fall on the homeowner.
[7] The 2011 Amendment was designed to redirect money being spent on legal costs to those associated with repair of a building. The incentive for territorial authorities to participate was the ability to cap their liability at 25% of repair costs, rather than risking a higher liability following a judicial determination of a particular
claim. Eligible claims were limited to damage caused to residential dwellings.12
The nature of the buildings
[8] Auckland University of Technology (AUT) has a campus on Auckland’s North Shore. A number of buildings near to it are designed for student accommodation.13 They are owned by Townscape Akoranga Ltd. Similar facilities exist near UNITEC’s campus at Pt Chevalier.14 They are within a unit title complex. Those units are owned by individuals, including Townscape Securities Auckland Ltd,
with common property being held by Body Corporate 212138.
[9] The buildings on both sites have significant water ingress problems. The owners have each applied for financial assistance under the Act. The Auckland Council (the Council) is the territorial authority for the areas in which all of the buildings are situated. It is a participating territorial authority, for the purposes of the
financial assistance scheme.
11 The definition of the term “additional contributing party” is set out at para [26] below.
12 At the time the 2011 Amendments were enacted, orthodox wisdom was that claims against territorial authorities were restricted to residential dwellings, whether standing alone or in a unit
title complex: see further, para [55] below. That position changed on 11 October 2012, when the Supreme Court’s judgment in Body Corporate 207624 v North Shore City Council [Spencer on Byron] [2013] 2 NZLR 297 (SC) was delivered.
13 A description of them is set out at para [40] below.
14 A description of them is set out at para [44] below.
The issues
[10] The first question is whether the student accommodation units fall within the definition of a “dwellinghouse” for the purposes of the financial assistance scheme. If they do not, there is no “eligible claim”.15
[11] The second issue concerns the way in which decisions are made. One would expect the legislation to be clear on that point – but, it is not. The question is whether the Chief Executive has decision-making capacity for both the Crown and the Council. The Chief Executive undoubtedly has power to determine whether a Crown contribution is payable. However, while the Council has agreed to participate in the scheme generally, through a separate agreement with the Crown,16 it contends that the Chief Executive cannot compel it to contribute in any given case.
[12] The third is the question of discretion to give a remedy. The appropriateness of any remedy has been questioned by both the Chief Executive and the Council, by reference to other civil proceedings that are on foot and by which Townscape Akoranga Ltd seeks to recover repair costs. While not formally stayed, that proceeding is currently at a stage where significant costs will not be incurred by the
Council, at least until after this judgment is given.17
[13] Subsequent to the substantive hearing in April 2013, the parties raised additional questions. One of some significance involves the impact, if any, of the actual repairs undertaken by Townscape Akoranga Ltd of Blocks A, B and C, of the accommodation units situated near the AUT campus. A further hearing was held on
1 July 2013, to clarify the issues raised. As a result, they have been deferred for further argument (if necessary) after this judgment has been delivered.18
[14] The Chief Executive initially decided that all of the student accommodation
fell within the definition of “dwellinghouse”.19 That decision was later changed following representations from the Council. After reconsideration of the issue, the
15 See paras [20], [23] and [25] below.
16 See my discussion of the Relationship Agreement, at paras [29]–[35] below.
17 Townscape Akoranga Ltd v Auckland Council [2013] NZHC 1623 at para [6].
18 Ibid, at para [10].
19 See para [46] below.
Chief Executive decided that there was a reasonable basis for the Council’s position that it did not owe a duty of care20 to the owners of the relevant accommodation units.
[15] Unfortunately, in approaching the issue in that way the Chief Executive conflated two discrete questions. The first was an eligibility question: were the units “dwellinghouses” for the purposes of the Act?21 The second was: if eligible, did the
claim meet the qualifying criteria for Council contributions?22
[16] The Townscape entities issued judicial review proceedings against the Chief Executive. They contend that the Chief Executive erred in declining their application for financial assistance. They assert that the Chief Executive was originally right to characterise the individual units as dwellinghouses but illegitimately delegated decision-making powers to the Council by allowing it to influence that decision by making submissions on the “duty of care” criterion. The Council was joined as a party interested in the outcome.
[17] Subsequently, the Council issued separate judicial review proceedings against the Chief Executive. Those proceedings challenge the Chief Executive’s decision to characterise the accommodation units near the UNITEC campus as a “dwellinghouse”. They also contend that the Chief Executive had no power to commit the Council to making a contribution, without its consent. The Townscape entities were joined as interested parties to the Council’s proceedings.
[18] The issues raised are important. There are many homeowners throughout New Zealand who wish to obtain financial assistance to repair their dwellings. This is an area of the law in which it is critical that the method by which decisions are reached and the criteria to be applied should be defined with as much particularity as
possible, to ensure a predictable outcome in any given case. If the purposes of the
20 “Weathertight Homes Resolution Services Act 2006” (28 July 2011) 113 New Zealand Gazette
3173 at 3198–3199, cl 2(2) set out at para [28] below. It is doubtful that the Chief Executive was entitled to receive submissions on this issue from the Council: see para [50] below.
21 See paras [46]–[57] below.
22 “Weathertight Homes Resolution Services Act 2006” (28 July 2011) 113 New Zealand Gazette
3173 at 3198–3199, cl 2(2), set out at para [28] below.
2011 Amendment are to be met, consistency in the application of the statutory scheme is imperative.
The financial assistance scheme
[19] Section 3 sets out the purpose of the Act. Section 3(b) was inserted by s 4 of the 2011 Amendment and reflects the stated purpose of the financial package provisions.23 Section 3 provides:
3 Purpose of this Act
The purpose of this Act is—
(a) to provide owners of dwellinghouses that are leaky buildings with access to speedy, flexible, and cost-effective procedures for the assessment and resolution of claims relating to those buildings; and
(b) to provide for certain matters relating to the provision of a package of financial assistance measures to facilitate the repair of those buildings.
[20] The term “financial assistance measures” is defined by s 125B(1) of the Act:
125B Interpretation
(1) In this Part, unless the context otherwise requires,—
...
financial assistance measures means the measures that comprise—
(a) a financial support facility that is in the form of,—
(i) in the case of the contributing party and, if applicable, any additional contributing party that is a relevant territorial authority, a financial contribution towards the agreed repair costs of a dwellinghouse; and
(ii) if applicable, in the case of any other additional contributing party, any or all of the following contributions towards the agreed repair costs of a dwellinghouse:
(A) a financial contribution: (B) the provision of a service:
(C) the supply of goods:
23 Compare with s 125A of the Act, at the commencement of Part 1A.
(b) a credit support facility that is in the form of a guarantee or indemnity given to a lender under section 125I(2) in respect of—
(i) any loan advanced by the lender to a claimant for the sole purpose of meeting the balance of the agreed repair costs of a dwellinghouse that are not otherwise covered by the financial contributions referred to in paragraph (a):
(ii) any loan advanced by the lender to a claimant as a result of the restructuring or refinancing of the loan described in subparagraph (i).
[21] To be eligible for any of the statutory services offered by the Act (including
financial assistance), the property in issue must be a “dwellinghouse” as defined.24
There are five types of claim that may be brought in respect of damage to dwellinghouses, each of which has its own eligibility criteria.25 They are:
(a) A single dwellinghouse,26
(b)A single dwellinghouse in a multi-unit complex, that is not a stand- alone complex,27
(c) A multi-unit complex,28
(d) Common areas,29 and
(e) One or more dwellinghouses within a stand-alone complex.30
[22] To bring a claim in respect of any of the types of “dwellinghouse” two prerequisites must be established. First, “water [must have] penetrated [the relevant structure] because of some aspect of its design, construction, or alteration, or of
materials used in its construction or alteration”. Second, penetration must have
24 Defined in s 8 of the Weathertight Homes Resolution Services Act 2006, set out at para [46]
below.
25 See also, Auckland Council v Chief Executive of Business, Innovation and Employment [2013] NZHC 912 at para [23].
26 Weathertight Homes Resolution Services Act 2006, s 14.
27 Ibid, s 15. The terms “multi-unit complex” and “stand-alone complex” are defined in s 8 of the
Act.
28 Ibid, s 16.
29 Ibid, s 17.
30 Ibid, s 18.
“caused damage to it”.31 In this case, there is no dispute that those two elements are made out.
[23] The term “dwellinghouse”, for present purposes, is defined as “a building, or an apartment, flat, or unit within a building, that is intended to have as its principal use occupation as a private residence; ... [but] does not include a hospital, hostel, hotel, motel, rest home, or other institution”.32 The issue in this case is whether the accommodation units are excluded from the scheme because either they are part of a “hostel” or “other institution”.
[24] An application for financial assistance is made to the Chief Executive.33 A claim under the Act is brought when a person applies for an assessor’s report in relation to it.34 Once the Chief Executive has decided (under s 48)35 that the claim has met the eligibility criteria, it becomes an “eligible claim” for the purposes of the Act.36
[25] To enter the financial assistance scheme, a qualifying claimant must both have an “eligible claim in respect of a dwellinghouse” and meet the “contribution criteria” specified by the Chief Executive by notice in the Gazette (the Notice), in respect of the “package of financial assistance measures”.37 Clause 1 of the Notice sets out the Crown contribution criteria. Clause 2 addresses the criteria for “Participating Territorial [Authorities]”.
[26] If a claimant were granted financial assistance at a relatively late stage in the process, it will be required to discontinue any proceedings before the Court or the Tribunal in respect of the subject matter of the claim. That restriction generally takes
effect at the time the claimant receives the first payment, from either the Crown (as
31 For example, s 14(c) and (d) of the Act, in relation to a “dwellinghouse claim”.
32 Weathertight Homes Resolution Services Act 2006, s 8, definition of “dwellinghouse” at paras
(a) and (d). This definition is set out in full at para [46] below.
33 Ibid, s 125C.
34 Weathertight Homes Resolution Services Act 2006, s 9.
35 There is an ability to challenge the Chief Executive’s decision not to accept a claim. This is
done in writing to the Chair of the Weathertight Homes Tribunal: s 49 of the Weathertight
Homes Resolution Services Act 2006.
36 Ibid, s 8, definition of “eligible claim” and s 10. Sections 8, 10 and 48 are set out at para [47]
below.
37 Weathertight Homes Resolution Services Act 2006, s 125B(1), definition of “qualifying claimant”. This definition is set out at para [47] below.
the defined “contributing party”)38 or “any additional contributing party”. The term
“additional contributing party” is defined by s 125B(1):
125B Interpretation
(1) In this Part, unless the context otherwise requires,—
additional contributing party—
(a) means either or both of the following:
(i) the relevant territorial authority, if it agrees to—
(A) participate in the provision of the package of financial assistance measures to qualifying claimants; and
(B) make, under a contribution agreement, a financial contribution towards the agreed repair costs of the dwellinghouse concerned:
(ii) any other party (if any) who agrees to make a contribution (whether financial or otherwise) towards the agreed repair costs of the dwellinghouse concerned; but
(b) does not include a claimant or a lender
The Gazette Notice
[27] As contemplated by the definition of “qualifying claimant”,39 the Chief Executive published the Notice40 in which the “contribution criteria” were set out. The Notice was promulgated on 28 July 2011.
[28] The Notice41 sets out criteria for both the Crown and participating territorial authority contributions. All criteria set out in cl 1 must be met before the Crown will make any contribution under the financial assistance package. While cl 2 sets out criteria that, if met, will qualify a claimant for a contribution from a participating territorial authority, it does not exhaustively identify the circumstances in which a
Council might refuse, in any given case, to make a contribution:
38 Ibid, s 125B(1), definition of “contributing party”.
39 Ibid, s 125B(1), definition of “qualifying claimant”, set out at para [47] below.
40 “Weathertight Homes Resolution Services Act 2006” (28 July 2011) 113 New Zealand Gazette
3173 at 3198–3199, cl 2(2).
41 Ibid, at 3198–3199.
Clause 2: Participating Territorial Authority Contribution
Subject to clause 2C, to qualify for a contribution from a Participating
Territorial Authority:
A. the claimant must meet all of the criteria set out in clause 1; and
B. the territorial authority must owe a duty of care to a person in the position of the claimant in respect of the damage to which the full assessor’s report or the concise assessor’s report (as applicable) relates.
C. A claimant who:
(i) has previously been or is currently involved in any civil proceedings relating to the weathertightness of the dwellinghouse where the relevant Participating Territorial Authority is named as a party, or has been joined as a party; and
(ii) discontinues those proceedings before lodging a claim in accordance with the Act,
will not qualify for a contribution from the Participating Territorial Authority, unless the Participating Territorial Authority agrees otherwise.
Without limiting clause 2B above, as at the date of this notice:
1.the intended use of the dwellinghouse when built will be relevant to whether a Participating Territorial Authority has a duty of care, generally the intended use must have been for residential purposes; and
2.the Participating Territorial Authority may not owe a duty of care to dwellinghouses within mixed use developments depending on the proportion of the residential component of the development; and
3.a Participating Territorial Authority will not be required to contribute in circumstances where:
(a) the relevant territorial authority did not inspect the dwellinghouse or issue a code compliance certificate or interim code compliance certificate for the dwellinghouse.
(b) the relevant territorial authority issued a code compliance certificate for the dwellinghouse because required to do so by the Department by a determination under subpart 1 of Part 3 of the Building Act 2004.
(c) the relevant territorial authority issued a code compliance certificate or interim code compliance certificate for the dwellinghouse for non-weathertight aspects of the dwellinghouse only.
(d) a private certifier carried out all inspections and issued a code compliance certificate, regardless of whether the relevant territorial authority holds the private certifier’s records.
(e) the relevant territorial authority issued a code compliance certificate or interim code compliance certificate for the dwellinghouse in reliance on a certificate from a private certifier issued under section 56 of the Building Act 1991 in respect of weathertightness related work.
(f) the relevant territorial authority never inspected the weathertightness related work forming part of the dwellinghouse.
(g) the relevant territorial authority inspected the weathertightness related work and either:
(i) issued a notice to fix (under the Building Act 2004); (ii) issued a notice to rectify (under the Building Act
1991); or
(iii) otherwise advised the homeowner of any defects, and a code compliance certificate was never issued.
(h) the claim relates to a dwellinghouse within a retirement village within the meaning of the Retirement Villages Act
2003, and the owner by or on behalf of whom the claim is made is the retirement village’s operator or promoter as defined in that Act.
For the avoidance of doubt, the above circumstances are not the only circumstances in which a claimant may not receive a contribution from a Participating Territorial Authority.
(Emphasis added)
The Relationship Agreement
[29] When the Council elected to participate in the financial assistance scheme, it entered into an agreement (the Relationship Agreement) with the Crown.42 The purpose of the Relationship Agreement was to record the way in which those parties believed the scheme would be administered, when the Council was involved as a participating territorial authority. A claimant was unlikely to know that the
Relationship Agreement existed. Certainly, it was not generally available.
42 See also para [64] below.
[30] The nature and purpose of the Relationship Agreement is recorded in its Preamble. The relevant recitals, taken from the specific Relationship Agreement between the Crown and the Council, state:
BACKGROUND
AIn New Zealand, there are a number of homes that are ‘leaky buildings’ and have weathertightness issues.
Bthe government and the [Council] have agreed to deliver a package of financial assistance measures to qualifying owners of leaky homes.
CThe package of financial assistance measures aims to help improve eligible homeowners’ access to finance required to repair their homes and to divert litigation costs towards repair costs.
DThe [Council] wishes to co-operate with the government to achieve the same policy goals as the government in relation to the repair of leaky homes.
EWhere a homeowner satisfies all of the Contribution Criteria, the Crown and the [Council] (if the leaky home is within the [Council’s] district) will each provide that homeowner a 25% direct payment towards the homeowner’s agreed repair costs approved under the Homeowner Agreement. In some circumstances, a homeowner will be eligible to receive a 25% direct payment towards those agreed repair costs from the Crown, but not from the [Council].
FThe [Council] agrees to be a participating territorial authority. The [Council] has agreed to be a participating territorial authority and to enter into this Agreement on the basis of, and by reference to, the arrangements embodied in the suite of documents contained in the schedules that form part of this Agreement.
GThe [Council] may be an additional contributing party for the purposes of the Act in respect of the Homeowner Agreements the [Council] enters into in accordance with this Agreement.
H The [Ministry] will administer the Financial Assistance Measures.
The Crown also intends to provide credit support to certain banks by way of a loss share arrangement.
IThe [Ministry] and the Participating [Councils] wish to establish a close collaborative relationship to give effect to the purpose of the Scheme.
...
(Emphasis added)
[31] While the terms of the Relationship Agreement cannot affect interpretation of the Act and the Notice, they do record the basis on which the Crown and the Council decided to collaborate, to give effect to the purposes of the scheme. Given that the purpose of the 2011 Amendment was to provide “for certain matters relating to the provision of a package of financial assistance measures to facilitate the repair of
leaky buildings”,43 it is arguable that the agreed terms may have an impact on the
way in which each party might be expected to make decisions to contribute to the cost of repairs, in any particular case.
[32] Clause 1.3 of the Relationship Agreement sets out an interpretation regime that is dependent on the precedence of the Act and a hierarchy of relevant documents:
1.3 Priority
If there is a conflict between any parts of the Act, this Agreement, a Homeowner Agreement and/or the Services Contract, for the purposes of interpretation, the parts of this Agreement rank in the following descending order of priority, with each lower part to be disregarded to the extent that it conflicts with a higher ranking part:
(a) the Act;
(b) the relevant Homeowner Agreement;
(c) clauses 3 to 31 (inclusive) (but excluding clause 4) of this
Agreement;
(d) the Services Contract, if any;
(e) the relationship principles in clause 2; and
(f) the responsibilities and accountabilities in clause 4.
If there is any inconsistency between this Agreement (or any part of it) and the Act then, to the minimum extent necessary, the provisions of this Agreement will be deemed to be modified to remove any such inconsistency.
[33] The “relationship principles”, agreed between the Crown and the Council are
set out in cl 2:
43 Weathertight Homes Resolution Services Act 2006, s 4(ha), inserted by s 5 of the 2011
Amendment.
2 RELATIONSHIP PRINCIPLES
The parties have agreed on the following relationship principles that reflect the behaviours and philosophies of the parties to ensure their relationship and this Agreement works effectively:
(a) Focus on repairing leaky homes: the parties’ relationship and actions will be focussed on fixing leaky homes with weathertight issues to create safe, healthy living accommodation.
(b) Collaboration: the parties’ relationship will be collaborative, and will be underpinned by the sharing of agreed types of information, joint planning, and co-operative problem solving at the earliest practicable stage, including with other Participating [Councils] facing the same or similar issues.
(c) Best practice: the parties will identify and disseminate best practice amongst relevant Participating [Councils] and this is intended to be done primarily through the Management Advisory Group and the Executive Advisory Group.
(d) Communication: clear and respectful communication will be maintained to ensure that issues can be identified early and addressed appropriately.
(e) Accountability: clear roles, accountabilities and responsibilities between the parties will be maintained to ensure the ongoing success of the relationship.
(f) Efficiency: there will be a clear and efficient process governing the interaction between the [Ministry], the [Council] and the Homeowner to ensure the ongoing success of the relationship between the [Ministry] and the [Council]. The parties acknowledge and agree that (as between themselves) the processes initially recorded in the Agreement are fully consistent with this relationship principle.
(g) Transparency: there will be clear governance and reporting arrangements agreed between the [Ministry] and the [Council] The parties acknowledge and agree that the governance and reporting arrangements initially recorded in this Agreement are fully consistent with this relationship principle.
(h) Flexibility: there will be a clear change management process to balance the goals of (on the one hand) allowing the parties to pragmatically change the way in which they deal with each other in relation to this Agreement and deal with any necessary operational processes changes, and (on the other hand) the [Ministry’s] need to manage its relationship with all Participating [Councils] and Homeowners in a consistent manner where practicable.
[34] The Relationship Agreement sets out the basis on which the Chief Executive conducts an initial assessment of a claim and notifies the Council of it.44 It provides that the Council will execute a Standard Homeowner Agreement (set out in a schedule to the Relationship Agreement) that has been duly completed and delivered to it for execution.45
[35] There appears to be a lacuna, in relation to the possibility of a difference of opinion between the Council and the Chief Executive, on whether the contribution criteria have been met. Clauses 8.1, 8.2, 8.3 and 9.2 provide:
8 ASSESSMENT OF QUALIFYING HOMEOWNER
8.1 [Ministry] notifies [Council] of claim
Upon being informed by an Applicant that the Applicant wishes to be assessed to determine whether they qualify for a financial contribution from the Crown and the [Council], the [Ministry]:
(a) will notify the [Council] of all the relevant details provided
by the Applicant relating to that Applicant’s application; and
(b) may request the [Council] to provide (and the [Council] will provide) any further information that the [Ministry] reasonably requests or considers desirable in relation to that Applicant’s application.
8.2 [Council] to advise of non-eligibility
Upon receiving notice from the [Ministry] under clause 8.1, the [Council] will notify the [Ministry] in writing as soon as reasonably practicable, but in any event within 20 Business Days of receiving that notice:
(a) of any reason it knows why the Applicant would not satisfy the Contribution Criteria; and
(b) if it considers the Property is a property owned by the government or its agencies (including Housing New Zealand Corporation) or the [Council].
44 Relationship Agreement, cl 8.
45 Ibid, cl 9.
8.3 [Ministry] notifies when Initial Contribution Criteria satisfied46
For each Applicant, the [Ministry] will notify the [Council] in writing when the [Ministry] determines that the relevant Applicant has satisfied the Initial Contribution Criteria.
...
9.2 Right not to execute a Homeowner Agreement
The [Council] may refuse to execute a Standard Homeowner
Agreement that has been delivered by the [Ministry] under clause
9.1 if the [Council] has given the [Ministry] written notice in accordance with clause 8.2 and the Applicant does not satisfy the
Contribution Criteria.
[36] The substantive dispute resolution clause contained in the agreement47 does not appear to capture the type of problem that would arise if the Council were to refuse to sign a “Homeowner Agreement”.
The Chief Executive’s decision
[37] The Chief Executive’s decision-making functions were exercised, in this case, by Mr Johnson. He is a solicitor employed by the Ministry. As “Senior Advisor Eligibility”, Mr Johnson evaluates assessors’ reports under the Act48 and determines whether claims meet the eligibility criteria. Mr Johnson made relevant decisions on 26 September 2011 (UNITEC) and on 1 and 2 November 2011 (AUT).
[38] In relation to the financial assistance scheme, Mr Johnson determines “whether a claimant meets the Initial Contribution Criteria for a ... contribution from the Crown” and reviews decisions made by territorial authorities “about whether a claimant meets the additional contribution criteria” for a contribution from that source. Mr Johnson explains, in a helpful affidavit, the way in which he approached eligibility decisions in relation to the AUT and UNITEC student accommodation.
[39] In relation to the AUT accommodation units, Mr Johnson formed the view that the units qualified as dwellings for the purposes of the financial assistance
46 The term “initial contribution criteria” is defined by cl 1.1(c) of the Relationship Agreement as “those parts of the Contribution Criteria that the relevant Homeowner must satisfy before entering into that Homeowner’s Homeowner Agreement”: see also para [38] below.
47 Ibid, cl 29.
48 Weathertight Homes Resolution Services Act 2006, ss 31–49.
scheme and rejected the Council’s view that they more closely resembled a “hostel”. In doing so, he adopted views expressed in the assessors’ reports.49 Mr Johnson said that the fact “that each apartment had its own lounge, dining, kitchen and toilet facilities (as opposed to communal facilities) suggested to [him] that the buildings were closer to residential apartments than a typical student ‘hostel’”. The possibility that the accommodation units might come within the term “other institution” was not
one considered by Mr Johnson, at the time. The point had not been raised by the
Council.
[40] Assessors’ reports were prepared for the accommodation units near the AUT campus. Mr Johnson exhibited the report for Block C, as a suitable illustration. That report was completed on 30 September 2011, following an application received on
27 July 2011. The assessor commented on the nature of the units:
4.1 Overview
The subject building is situated on a large site within the locality known as Akoranga within the Northcote suburb in Auckland City. The locality comprises schools, a marae, a retirement village, the AUT University Campus and some residential properties. The site is on the northeast side of Akoranga Drive, on the strip of land between Akoranga Drive and the northern motorway to Orewa. The site is below the road level and has a slight slope to the northeast.
The building is known as Block C, and is a stand alone building within a large site that is an Auckland University of Technology student village. The block is situated in the east corner of the site with the front and entry facing northwest. The rear of the building is located close to, and running parallel to the southeast boundary.
The footprint of the building is a simple oblong shape and is 3 levels high. The fronts of the lounges extend out from the front in the form of a flat roofed curved section. The bathrooms extend out at both ends in the form of flat roofed triangular sections. A small flat roof at the right of the centrally prominent stairwell provides protection to the main entry door.
The building layout has a central entry foyer and stairwell with apartments leading off the entry and upper landing. There are 2 apartments per level, each comprising an open plan lounge, dining, and kitchen, 5 bedroom and 2 bathrooms.
Consistent with the ‘Claimants Comments’ it is apparent that there have been some works undertaken in an attempt to improve weathertightness. These works consist of the fitment of hoods over wall cowls, plaster hoods over
49 These reports were prepared for the limited question of eligibility: see ss 38 and 31 of the Act.
See paras [40] and [44] below.
window head flashings, and wide plaster interstory bands and flashings over
the original midfloor ‘h’ flashing.
Note: The interstory bands are constructed of colour coated steel in some places and plaster in others.
In my opinion the building is a dwellinghouse as defined by the [Act]: which means a building, or an apartment, flat, or unit within a building, that is intended to have its principal use occupation as a private residence. As described above ... the apartments within the building are clearly designed to accommodate long term occupants, having designated kitchen, and private shower and toilet facilities.
....
[41] A subtle difference arose in relation to the question whether the accommodation units met the initial contribution criteria. Although Mr Johnson rejected the Council’s view that the units were not dwellings, he was prepared to accept that there was a reasonable basis on which they could be regarded as “commercial” in nature, for the purpose of determining whether the Council owed a duty of care in respect of the property in issue.50
[42] Both the Notice and the Chief Executive’s decision were finalised before the Supreme Court widened the categories of buildings in respect of which Council owed duties of care. Because the Council had advanced a reasonable argument that no duty of care was owed, Mr Johnson decided that the initial contribution criteria had not been met.
[43] A similar decision was made in respect of the UNITEC accommodation. In that case, the assessor had reported that each of the 35 apartments contained lounge, kitchen and bathroom facilities. Mr Johnson considered that the existence of those features distinguished the buildings from a hostel, where communal facilities were typically present.
[44] The assessor’s report for the accommodation near the UNITEC campus was
completed on 30 August 2011, the application having been received on 1 July 2011. It was prepared by a different assessor. He described the property as follows:
50 See para [55] below and fn 12. See also cl 2(1) and (2) of the Notice, set out at para [28] above.
4.1 Overview
The Unitec Residential Village has two separate accommodation buildings. The development has a total 35 individual apartments that contain a lounge, kitchen and bathroom facilities. Each apartment contains between three and five bedrooms with the laundry facilities for all apartments in the basement level of the larger building.
The development has been built on a sloping site below the road that is orientated towards the east. The site has been excavated to provide car parking areas and basement apartments. The site has retained a good deal of the surrounding trees and together with the sloping ground levels limits easy access around the rear sides of the buildings.
[45] The assessor had observed that students would stay at the apartments from six months up to three years. Mr Johnson considered that information suggested “that the building was being used for longer term residential accommodation rather than as accommodation of a more transient nature, typically of hostel accommodation”. Again, the Council did not put to Mr Johnson, and he did not consider, whether the units would fall within the term “other institution” for the purposes of the definition of “dwellinghouse”. Despite his decision on eligibility under the “dwellinghouse” definition, Mr Johnson accepted that the Council had a reasonable argument that the buildings were commercial in nature and that no duty of care was owed by the Council to the Townscape entities.
Analysis
(a) The “dwellinghouse” issue
[46] Section 8 of the Act defines the term “dwellinghouse”:
8 Interpretation
In this Act, unless the context otherwise requires,—
...
dwellinghouse –
(a) means a building, or an apartment, flat, or unit within a building, that is intended to have as its principal use occupation as a private residence; and
(b) in the case of a dwellinghouse that is a building, includes a gate, garage, shed, or other structure that is an integral part of the building; and
(c) in the case of a dwellinghouse that is an apartment, flat, or unit within a building, includes a door, gate, garage, shed, or other structure that—
(i) is an integral part of the building; and
(ii) is intended for the exclusive use of an owner or occupier of the dwellinghouse; but
(d) does not include a hospital, hostel, hotel, motel, rest home, or other institution.
[47] An application to enter the financial package regime is made to the Chief Executive. Sections 8 (definition of “eligible claim”), 10, 48, 125B(1) (definition of “qualifying claimant”) and 125C of the Act provide:
8 Interpretation
In this Act, unless the context otherwise requires,—
eligible claim means a claim by the owner of a dwellinghouse that has been evaluated under section 48 by the chief executive, or reconsidered under section 49 by the chair, as meeting the eligibility criteria
...
10 How claim becomes eligible claim
A claim has been declared eligible under this Act if the chief executive has decided under section 48, or the chair has decided under section 49, that it meets the eligibility criteria.
...
48 Chief executive to evaluate assessor's reports
(1) The chief executive must evaluate every assessor's report (other than a full assessor's report made in respect of a claim that was held to meet the eligibility criteria when an eligibility assessor's report was evaluated), and decide whether the claim to which it relates meets the eligibility criteria.
(2) In evaluating the report, the chief executive must consider only the report itself and any submission made by the claimant under section 45.
(3) The chief executive must give the claimant written notice stating—
(a) the chief executive's decision as to whether or not the claim meets the eligibility criteria; and
(b) if the chief executive has decided that the claim does not meet those criteria, his or her reasons for that decision.
...
125B Interpretation
(1) In this Part, unless the context otherwise requires,—
...
qualifying claimant means a claimant who—
(a) has an eligible claim in respect of a dwellinghouse; and
(b) meets the contribution criteria that are specified by the chief executive by notice in the Gazette in respect of the package of financial assistance measures.
...
125C Application for financial assistance measures
A qualifying claimant who wishes to obtain any financial assistance measures in relation to a dwellinghouse may apply to the chief executive in the approved manner.
[48] The combined effect of those provisions is:
(a) An application for financial assistance is made to the Chief
Executive.51
(b)To be a “qualifying claimant” for the financial assistance scheme, a person must have an “eligible claim” in respect of a dwellinghouse and, otherwise, meet the contribution criteria set out in the Notice.52
(c) A person has an eligible claim in respect of a dwellinghouse if, after evaluation under s 48 by the Chief Executive, it has been determined to meet relevant criteria.53
(d)The decision whether the claim meets the eligibility criteria, is made by the Chief Executive, following evaluation of an assessor’s report.54
In evaluating that report, the Chief Executive is entitled only to
51 Weathertight Homes Resolution Services Act 2006, s 125C. It is questionable whether the Relationship Agreement can extend the right to make submissions to the Council, given the terms of the Act: cf cl 8.1 of the Relationship Agreement, set out at para [35] above.
52 Weathertight Homes Resolution Services Act 2006, s 125B(1), definition of “qualifying claimant”.
53 Ibid, ss 8, definition of “eligible claim” and 10.
54 Ibid, s 48(1).
consider the report itself and any submission made by a claimant under s 45.55
(e) If eligibility as a “dwellinghouse” is established, it is necessary for the appropriate decision-maker to determine whether the relevant contribution criteria have been met.56
[49] The first stage in the assessment process is for the Chief Executive to determine whether a claim is eligible. In this case, Mr Johnson did that, based on the assessors’ reports that he received. In doing so, he complied with s 48(1) and (2) of the Act. Those provisions envisage limited inquiries before an eligibility decision is made. Judicial review of the Chief Executive’s decision must consider whether it was validly made on the basis of the same information to which the decision-maker was entitled to refer. Were it otherwise, it would be easy to turn an assessment of the lawfulness and reasonableness of the decision into an appeal on the merits, something that is not permitted by the Act.
[50] In considering whether the accommodation units were “dwellinghouses”, the Chief Executive had regard to the assessors’ report prepared in respect of each57 and submissions made by the Council. In light of ss 45 and 48 of the Weathertight Homes Resolution Services Act 2006, it is questionable whether the Chief Executive should have considered submissions from the Council, at all. While the Council now asserts that the structure should be characterised as either a “hostel” or “other
institution”, only the first of those was raised for the decision-maker to consider. If the “dwelling” falls under either rubric, it will be excluded from the scope of a “dwellinghouse”. That conclusion would mean that the first qualifying criterion (eligibility) for financial assistance is not met.
[51] In addressing the assessors’ classification of each accommodation unit as a
“dwellinghouse”, as opposed to (collectively) a “hostel”, Mr Christie submitted that the critical point of difference was one of “supervision”. He pointed to evidence that
55 Ibid, s 48(2). A claimant is entitled to make submissions if the assessor’s report concludes that
the claim does not meet eligibility criteria.
56 Ibid, s 125B(1), para (b) of definition of “qualifying claimant”, set out at para [47] above.
57 See paras [40] and [44] above.
those responsible for running the facility could direct particular students where to live, and with whom to share accommodation. Mr Christie also referred to the use of wardens, for supervisory purposes. That being the case, Mr Christie contended that the accommodation units were transient in nature and lacked the degree of privacy one would ordinarily expect from a residence.
[52] A common theme of the definition of “dwellinghouse” is the existence of a place of abode, having “as its principal use occupation as a private residence”.58 The exceptions to the term “dwellinghouse” are the antithesis of a residence that has the usual characteristics of privacy inherent in it. Generally speaking, hospitals, hostels, hotels, motels, and rest-homes are not used principally as a private residence. While some people may spend a long time in any of those institutions, it is usually as a matter of necessity rather than choice. In general, there is a transient nature to each of the excluded forms of accommodation; whether as a result of illness,
homelessness, travel (business or private), age or otherwise.
[53] In determining whether a particular accommodation unit is a “dwellinghouse” or a “hostel”, questions of fact and degree are involved. For example, a person may be required to live in a particular city for two or three months. If a serviced apartment were used during that stay would it be regarded as a “dwellinghouse” or a “hostel” or some “other institution”? A self-contained unit, designed for the principal purpose of being a place of residence for a person away from his or her usual home, in which the traveller can relax, cook, host guests and use independent shower and toilet facilities is one to which a considerable degree of privacy attaches.
[54] In my view, that type of serviced apartment, designed for longer-term accommodation, is more nearly analogous to a “dwellinghouse”, than a hostel. The comparator is the use of a hotel room for a shorter period of time. A hotel is expressly excluded from the definition of “dwellinghouse”, in s 8.59 The assessors’ reports indicate that the units that are available to the students serve the same type of function as a serviced apartment. The accommodation units in issue in this
proceeding more closely resemble a serviced apartment than a hotel, motel, or any
58 Weathertight Homes Resolution Services Act 2006, s 8, definition of “dwellinghouse”, at (a), set
out at para [46] above.
59 Section 8 of the Act is set out at para [46] above; see (d) of the definition.
other form of like institution not specifically mentioned within the exceptions to the
“dwellinghouse” definition.
[55] At the time that the “financial package” legislation came into force on 23 July
2011, the circumstances in which a territorial authority owed a duty of care to owners of dwellinghouses had been settled through the Sunset Terraces litigation. In this Court, I had taken the view that a territorial authority owed a duty of care to anyone who acquired a property, the intended use of which had been disclosed as “residential” in the plans and specifications submitted with the building consent application, or was known to the Council to be for that end purpose.60 That approach was taken on the basis that prior authorities had not recognised any duty of care to the owner of a commercial development. I left to one side what I termed “the troublesome possibility of a mixed-use development”.61 In substantially upholding
my first instance decision, the Court of Appeal adopted my “bright line” approach.62
The Supreme Court confirmed the existence of a duty of the type recognised in this Court and the Court of Appeal.63 The judgment of the Supreme Court was delivered on 17 December 2010, before the 2011 Amendment was enacted and the eligibility decisions were made in this case.64 Subject to the statement in cl 2 that the limitations on cl 2B are “as at the date of” the Notice, that is the context in which the Act’s definition of “dwellinghouse” falls to be considered.65
[56] The evidence that has been submitted to me on the question of “dwellinghouse” eligibility goes far beyond what the Chief Executive was entitled to consider. The Chief Executive was entitled to take account of what had been said by the assessors, including their advice that the intended use of the units (as
disclosed by the building consent application) was residential. All of the permissible
60 Body Corporate 188529 v North Shore City Council [2008] 3 NZLR 479 (HC) at paras [214]–
[222], in particular para [220].
61 Ibid, at paras [212], [213] and [219].
62 North Shore City Council v Body Corporate 188529 [Sunset Terraces] [2010] 3 NZLR 486 (CA) at paras [69] and [109] (Baragwanath J), [170] and [184] (William Young P, with whom Arnold J agreed on this point: at para [205]).
63 North Shore City Council v Body Corporate 188529 [2011] 2 NZLR 289 (SC) at para [51]
(Blanchard, Tipping, McGrath and Anderson JJ), with whom, on this point (at paras [3] and [7]) Elias CJ appears to have agreed.
64 See para [37] above.
65 This approach is consistent with the terms of cl 2(1) and (2) of the Notice, set out at para [28]
above.
evidence before the Chief Executive pointed towards each unit being classified as a “dwellinghouse”, for the purpose of that criterion. On judicial review, I cannot consider evidence that goes beyond the scope of his jurisdiction to determine eligibility.
[57] In my view, the Chief Executive did not fail to take account of relevant factors; nor were any irrelevant factors taken into account. On the evidence Mr Johnson was entitled to consider, his decision was not plainly wrong. In those circumstances, I consider that it was open for the Chief Executive to find that the “dwellinghouse” criterion had been met. The “eligibility” point is resolved in favour of the Townscape interests.
(b) Contribution criteria: who is the decision-maker?
[58] A finding that a particular unit is a “dwellinghouse” for the purposes of the Act does no more than to bring the unit within the scope of the financial assistance scheme.66 The next step, in determining whether the unit owner is a “qualifying claimant” for financial assistance is to consider whether relevant contribution criteria have been met.67
[59] On the evidence before me, there are three possible answers to the question “who is the decision-maker”, with regard to the participating territorial authority contribution criteria, set out in the Notice. They are:
(a) The Chief Executive, on the basis that both the Crown and Council criteria are considered together.
(b) The Chief Executive, in respect of the Crown criteria, and the
Council, in respect of the participating territorial authority contribution.
66 Weathertight Homes Resolution Services Act 2006, s 125B(1), para (a) of the definition of
“qualifying claimant”, set out at para [47] above.
67 Ibid, para (b) of the definition of “qualifying claimant”, set out at para [47] above.
(c) The need for a consensus between the Chief Executive and the Council in respect, at least, of the participating territorial authority contribution.
[60] A person who meets the definition of “qualifying claimant”68 is one who (a) has an eligible claim in respect of a dwellinghouse and (b) meets the contribution criteria. In receiving an application for financial assistance,69 the Chief Executive acts in a manner akin to that of a registrar who receives the applications and refers them for processing. As part of that function the Chief Executive is given exclusive decision-making powers on the “eligible claim” part of the “qualifying claimant” criteria. That is consistent with the terms of the Relationship Agreement, by which it was agreed that the Ministry would administer the financial assistance measures.70
[61] The Chief Executive, as the Crown’s representative in administering the scheme, is responsible for determining whether the Crown contribution criteria have been met. Does the Chief Executive also have responsibility for determining whether a participating territorial authority’s contribution criteria have been met?
[62] As indicated previously,71 the purpose of the financial assistance scheme is to redirect litigation costs into costs of repair. By electing to participate in the scheme, the Council has the opportunity to limit its exposure to any particular claimant to
25% of the repair costs, and to avoid (or minimise) associated legal costs.
[63] Election to participate in the scheme is not the same as a decision to make a contribution in the context of any particular claim. The decision whether to contribute to the costs of repair in a particular case is one that would (ordinarily) be made by reference to the risks and costs of litigation that might be brought against the Council, in which it might be held liable to make a higher contribution. The other side of that coin is that one might reasonably expect that a Council should be
entitled to refuse to make a contribution if it were to determine that a payment of
68 The definition is set out at para [47] above.
69 Weathertight Homes Resolution Services Act 2006, s 125C, set out at para [47] above.
70 Relationship Agreement, Recital H, set out at para [30] above.
71 See para [7] above.
25% of the repair costs is likely to exceed any amount that it might be ordered to pay. That too represents an assessment of risk of litigation.
[64] A Council only becomes an “additional contributing party” if it agrees “to participate in the provision of the package of financial assistance measures to qualifying claimants” and makes a financial contribution to the agreed repair costs, “under a contribution agreement”.72 A decision to contribute, under a specific “contribution agreement”, is one that follows the decision to participate in the scheme. That is clear from the specific reference, in that part of the definition, to an
agreement to make “a financial contribution towards the agreed repair costs of the dwellinghouse concerned”.73 The focus of that part of the definition is on the particular, rather than the general.
[65] The Relationship Agreement specifically states that the Council “may be an additional contributing party for the purposes of the Act in respect of the Homeowner Agreement the [Council] enters into in accordance with this Relationship Agreement”.74 Under the Relationship Agreement, the “Homeowner Agreement” is the specific “contribution agreement”, to which the definition of “additional contributing party” refers.
[66] It follows that while it was for the Chief Executive to determine whether the Crown contribution criteria had been met, it was for the Council to determine whether it would make a contribution as an “additional contributing party”. It seems likely that the Council could elect not to make a contribution, even if the cl 2 criteria
were all met.75 For those reasons, the Chief Executive had no power to compel the
Council to make a contribution in these particular cases.
72 Weathertight Homes Resolution Services Act 2006, s 125B(1), definition of “additional contributing party” at (a)(i)(A) and (B); set out at para [26] above.
73 Ibid, at (a)(i)(B), set out at para [26] above.
74 Relationship Agreement, Recital G, set out at para [30] above.
75 See also cl 2 of the Notice, in which it is stated that the circumstances set out in cl 2 “are not the only circumstances in which a claimant may not receive a contribution from” a participating territorial authority. See para [28] above.
(c) Relief
[67] From the Crown’s perspective, an issue has been raised about whether the repair of Blocks A, B and C of the AUT facility has disentitled the Townscape entities from receiving a Crown contribution. A separate issue arises as to whether Block C falls outside of the scope of the contribution criteria on the grounds that separate proceedings are on foot.
[68] Another question is whether the Council owed a duty of care to the Townscape entities, in respect of the accommodation units at either (or both of) the student villages. That is a question confined to the Council contribution, which I have found to be for it to determine.
[69] There is an issue with regard to the impact of the Relationship Agreement between the Crown and the Council.76 To what extent should the Council be entitled to refuse to make a contribution when to do so might be inconsistent with obligations it has assumed to the Crown under the Relationship Agreement? My tentative view is that the Council should not be entitled to resile from its agreement.77 In other words, it is possible that the terms of the Relationship Agreement may fetter the Council’s general discretion to refuse to make a contribution in a particular case. This is an important issue on which I will need to hear from counsel.
[70] At this stage, a further hearing is required to deal with “repair” issues discussed in my ruling of 1 July 2013.78 A timetable has been established for that purpose.79 In addition, there are the “duty of care” point and the impact of existing civil proceedings to be determined in light of my views about the respective roles of the Chief Executive and the Council in determining whether contributions should be
made under the Crown and participating territorial authority criteria set out in the
Notice. Counsel will need to consider how best to deal with those issues, in light of my conclusions.
76 See paras [29]–[35] above.
77 For example, see cl 8.2, 8.3 and 9.2 of the Relationship Agreement, set out at para [35] above.
78 Townscape Akoranga Ltd v Auckland Council [2013] NZHC 1623 at para [10](a).
79 Ibid, at para [10](b)–(h).
[71] Given those considerations, I am not prepared to formulate relief at this stage. I shall adjourn the proceedings to receive further submissions on the question of relief, having regard to the views expressed in this judgment.
Result
[72] The proceedings are adjourned for a case management conference to be held on a date and at a time to be fixed by the Registrar, in Court for Chambers. Counsel shall confer and file a single memorandum setting out the views of the Townscape entities, the Council and the Chief Executive respectively, on the following issues:
(a) Whether it is appropriate for any relief to be granted at this stage? If so, what is the nature of that relief?
(b) What remaining issues require determination by the Court?
(c) Is another hearing still required? If so, on what issues? If a further hearing were to take place, are any adjustments required to the timetabling directions made on 1 July 2013?80
[73] The Registrar shall allocate a conference at the earliest date possible, in consultation with counsel. The memorandum to which I have referred shall be filed no later than two working days before the conference. If a further substantive hearing is likely to be required before the end of the year, counsel should liaise with
Ms MacDonald at the Registry to secure a date.
80 Ibid.
[74] All questions of costs remain reserved.
[75] I thank counsel for their assistance.
P R Heath J
Delivered at 2.00pm on 11 September 2013
Solicitors:
Adina Thorn Lawyers, PO Box 1753, Shortland Street, Auckland
Simpson Grierson, Private Bag 92518, AucklandCounsel:
J A Farmer QC, PO Box 1800, Shortland Street, Auckland
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