Townscape Akoranga Ltd v Auckland Council
[2013] NZHC 1623
•1 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2012-404-3373 [2013] NZHC 1623
UNDER Judicature Amendment Act 1972 and
UNDER Declaratory Judgments Act 1908
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 INNOVATION, BUSINESS AND EDUCATION Second Respondent
CIV 2012-404-4258
AND UNDER Part 1 of the Judicature Act 1972
IN THE MATTER OF the Weathertight Homes Resolution
Services Act 2006
BETWEEN AUCKLAND COUNCIL Applicant
ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF INNOVATION, BUSINESS AND EDUCATION First Respondent
TOWNSCAPE AKORANGA LTD Second Respondent
CIV 2012-404-4260
AND UNDER Part 1 of the Judicature Amendment Act
1972
TOWNSCAPE AKORANGA LTD v AUCKLAND COUNCIL [2013] NZHC 1623 [1 July 2013]
IN THE MATTER OF the Weathertight Homes Resolution
Services Act 2006
BETWEEN AUCKLAND COUNCIL Applicant
ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF INNOVATION, BUSINESS AND EDUCATION First Respondent
BODY CORPORATE 212138
Second Respondent
Hearing: 1 July 2013
Counsel: J A Farmer QC, A Thorn and M Bullivan for Townscape
Akoranga Ltd and Body Corporate 212138
G J Christie and D J Barr for Auckland Council
T I Halett-Hook for the Ministry of Innovation, Business and
Education
Judgment: 1 July 2013
RULING (NO 2) OF HEATH J
This judgment was delivered by me on 1 July 2013 at 3.00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
[1] On 22, 23 and 24 April 2013, I heard judicial review applications in each of these three proceedings. The applications seek to review decisions made (or said to have been made) by the Chief Executive of the Ministry of Innovation, Business and Education (the Chief Executive) under the financial assistance provisions of the Weathertight Homes Resolution Services Act 2006. At the conclusion of the hearing, I reserved judgment.
[2] The proceedings arise out of weathertightness defects in the building of student villages near the campuses of the Auckland University of Technology (AUT), on Auckland’s North Shore, and UNITEC at Pt Chevalier, respectively. Each of the buildings has suffered significant water ingress. Townscape Akoranga Ltd is the owner of the buildings near the AUT campus, while Townscape Securities Auckland Ltd and a body corporate own the UNITEC buildings. The buildings are all within the area administered by Auckland Council, as territorial authority.
[3] Three substantive issues arise:
(a) does the student accommodation fall within the definition of “dwellinghouse” for the purpose of the financial assistance legislation1 and,
(b)if so, does the Chief Executive have power to commit a territorial authority to making a contribution under those provisions, without its consent; and
(c) were the relevant eligibility criteria met, in any event?
There are also some subsidiary issues, into which it is unnecessary to go, for present purposes.
[4] Following reservation of judgment, a memorandum was filed by counsel for the Chief Executive in which an attempt was made to clarify a submission made at
1 The financial package provisions are found in Part 1A of the Weathertight Homes Resolution Services Act 2006, having been introduced following amendments made by s 7 of the Weathertight Homes Resolution Services Amendment Act 2011.
the hearing on whether, if the Townscape companies’ applications for judicial review were successful, the remaining criteria, published in The Gazette,2 had been met. The Chief Executive raised the question whether repair of Blocks A, B and C of the AUT student village, without Crown approval, answered that question in the negative.
[5] Further memoranda were filed in response on behalf of the Townscape companies and the Council. Those memoranda raised an additional issue involving separate civil proceedings which had been brought by Townscape Akoranga Ltd against the Council, James Hardie Ltd and Ace Insurance Ltd.3 The question is whether Townscape Akoranga Ltd has become disentitled to financial assistance contributions because it has issued and is pursuing a separate civil claim against the Council. Largely, that is an issue which involves the question whether discretionary relief should be withheld, even if Townscape Akoranga Ltd were successful on the
main points in issue.
[6] A separate question arose as to whether there should be a stay of the parallel civil proceeding. Following discussion at a contemporaneous case management conference, I adjourned the Council’s stay application on terms that would avoid the need for it to incur additional cost in relation to that proceeding, pending determination of the judicial review applications.4
[7] Counsel are now agreed that the repair issues raised in relation to Blocks A, B and C of the Akoranga complex should be resolved as part of these proceedings. However, further pleading and evidence will be required. While this approach is not altogether satisfactory, it is better to ensure that all relevant issues are heard and determined together, rather than take the risk of the need for another proceeding. I am anxious to avoid additional cost and delay for the parties. A timetable has been
agreed. I make orders in those terms.5
2 New Zealand Gazette No. 113, 28 July 2011.
3 Townscape Akoranga Ltd v Auckland Council and Ors HC Auckland CIV 2012-404-5219.
4 Ibid, Minute 1 July 2013.
5 Set out at para [10] below.
[8] The remaining question is whether there is a need for further submissions on the impact of the civil proceeding on the discretion to grant relief. Mr Hallett-Hook, for the Chief Executive, proposes a timetable for the exchange of further written submissions prior to delivery of judgment on the issues aired at the April hearing, while Mr Farmer QC, for the Townscape companies, submits that those points were ventilated sufficiently at the hearing and do not require further elaboration.
[9] Having checked and reflected on the submissions made at the April hearing, I find in favour of Mr Farmer’s position on this issue. The discretionary considerations were adequately debated at the hearing. The earlier argument is sufficient for me to make that determination. I do not require further submissions on those issues.
Result
[10] For those reasons, I make the following directions:6
(a) Leave is granted to Townscape Akoranga Ltd to amend its statement of claim to add an additional claim for relief in respect of questions arising from the repair of Blocks A, B and C. Any amended statement of claim shall be filed and served on or before 22 July 2013.
(b) Amended statements of defence shall be filed and served on or before
5 August 2013.
(c) Any additional affidavit evidence on behalf of Townscape Akoranga
Ltd shall be filed and served on or before 26 August 2013.
(d)Any additional affidavit evidence on behalf of the Chief Executive and the Council shall be filed and served on or before 16 September
2013.
6 I have amended the proposed directions to refer only to Townscape Akoranga Ltd, as it is the
(e) Any affidavit evidence in reply on behalf of Townscape Akoranga Ltd shall be filed and served on or before 30 September 2013.
(f) Written submissions in support of relief sought on these issues shall be filed and served by Townscape Akoranga Ltd, on or before 30
September 2013.
(g)Written submissions on behalf of the Ministry and the Council shall be filed and served on or before 14 October 2013.
(h) A hearing of one day shall be allocated on the first available date after
21 October 2013 for the ‘repair” issues to be heard.7 A common bundle of documents to be referred to at the hearing shall be filed no less than three working days beforehand.
[11] I will now prepare a judgment on all issues argued in April. A separate judgment will be given later on the repair issues, following argument. Leave is reserved for any counsel to seek a telephone conference if, after delivery of the first judgment, they consider that the “repair” point may have become moot.
[12] The additional hearing will need to be before me. I advise the Registrar that there is some urgency, as Townscape Akoranga Ltd intends to commence repair work in respect of Blocks D and E this coming summer. For that reason, a hearing date in early November would be preferable, if that can be accommodated.
[13] All questions of costs are reserved.
P R Heath J
Delivered at 3.00pm on 1 July 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
7 I have allocated one day as I consider Mr Farmer’s estimate of time to be more realistic than that
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