Treasury Properties Limited v Attorney-General - [2013] NZHC 1587

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-8034 [2013] NZHC 1587

BETWEEN TREASURY PROPERTIES LIMITED First Plaintiff

AND PETER SAYERS, BARRIE SAYERS and
ALISON RUTH WISE Second Plaintiffs

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
Defendant

Hearing: On the Papers

Appearances: AR Barker for Plaintiffs
HS Hancock and JS Andrew from Defendant

Judgment: 28 June 2013

JUDGMENT (NO. 2) OF TOOGOOD J

This judgment was delivered by me on 28 June 2013 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

TREASURY PROPERTIES LIMITED v SAYERS [2013] NZHC 1587 [28 June 2013]

Introduction

[1] On 15 July 2011 I issued a judgment in this matter1 (“the principal judgment”), concerning land which was compulsorily acquired by the Crown for use in conjunction with the expansion of the Auckland Motorway network. The issues related to an alleged agreement for the “re-acquisition” of the land by the Crown arising from correspondence between the parties in May 2006, and questions of repudiation, affirmation and cancellation of the purported agreement which arose from subsequent conduct and correspondence by and between the parties.

[2] This judgment concerns a matter previously not raised in the proceeding which the parties have subsequently asked the Court to consider pursuant to leave reserved.

Background facts

[3] In the early 1960s, the Crown compulsorily acquired land (comprising two adjacent parcels) near Albany. By 1999, the Crown decided that it no longer required the land for the purpose for which it was acquired. The Crown was therefore required to offer back the land to the second plaintiff (the Sayers) under s 40 of the Public Works Act 1981 (“the Act”).

[4] The offer back was made by the Crown in January 2003. In March 2003 the Sayers entered an agreement with the first plaintiff, Treasury Properties, appointing Treasury Properties as the lawyers for the Sayers in the negotiations with the Crown for the reacquisition of the land. In April 2003, the Crown and the Sayers entered an agreement for the purchase of the land, subject to a formula for determining the price (“the 2003 offer-back agreement”).

[5] However, before the issue of the price under the offer-back agreement could be determined, the Crown informed the Sayers that, despite the decision to offer the land back in 1999, it was considered that the land was again required for public
work. This led to discussions and correspondence between the parties in May 2006.

1 Treasury Properties Ltd v Attorney-General HC Auckland CIV-2008-404-8034, 15 July 2011.

[6] In the principal judgment, I held that the May 2006 correspondence gave rise to a binding contract (“the May 2006 agreement”). I made a declaration that the parties were bound by an agreement which provided that the 2003 offer-back agreement between the Sayers and the Crown was cancelled, the result being that title to the land remains vested in the Crown. I declared also that the contract provided that the claims by the plaintiffs to acquire title to the land through the offer- back agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 1587
Decision Date: 28 June 2013

CaseChat Overview and Summary

Treasury Properties Limited and the Sayers sued the Crown for the reacquisition of land compulsorily acquired in the 1960s and no longer required for public works. In 2003, the Crown offered the land back to the Sayers, who entered into an agreement with Treasury Properties for the reacquisition. However, in 2006, the Crown decided the land was still required for public works, and the Sayers accepted the cancellation of the 2003 agreement. The parties disputed the effect of the May 2006 agreement on the Sayers' rights under s 40 of the Public Works Act 1981. The Sayers argued that the May 2006 agreement did not extinguish their rights under s 40, while the Crown argued that the May 2006 agreement extinguished the Sayers' rights. The Court found that the May 2006 agreement did not extinguish the Sayers' rights under s 40. The Court held that the Sayers satisfied the criteria for an offer-back under s 40, and so retained the statutory right to an offer-back. The Court also held that there was no express intention in the May 2006 agreement to cancel the Sayers' rights under s 40. The Court rejected the Crown's argument that the Sayers' rights under s 40 were extinguished by an unaccepted offer, as the May 2006 agreement involved an accepted offer which was subsequently cancelled. The Court held that the May 2006 agreement did not compensate the Sayers for relinquishing their statutory rights under s 40, but rather recognised the notional purchase and reacquisition of the land. The Court declared that the May 2006 agreement did not abrogate the Sayers' rights under s 40, and ordered the Sayers to be entitled to costs.

Orders