Ward Ranch Ltd v Minister of Conservation/Te Papa Atawhai
[2018] NZHC 2893
•8 November 2018
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2017-419-000298 [2018] NZHC 2893
BETWEEN WARD RANCH LIMITED
Plaintiff
AND
THE MINISTER OF CONSERVATION/TE PAPA ATAWHAI
First Defendant
AUCKLAND/WAIKATO FISH AND GAME COUNCIL
Second Defendant
Hearing: 23 October 2018 Appearances:
P M Lang for Plaintiff
R L Roff and B R Arapere for First Defendant
S W Hughes QC and S J Ongley for Second DefendantJudgment:
8 November 2018
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 8 November 2018 at 12.00 noon Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
Evans Bailey Ltd/P M Lang, Hamilton
Crown Law/R L Roff, WellingtonQuin Law/S W Hughes QC/S J Ongley, New Plymouth
WARD RANCH LTD v THE MINISTER OF CONSERVATION/TE PAPA ATAWHAI [2018] NZHC 2893 [8
November 2018]
Introduction
[1] The plaintiff, Ward Ranch Ltd (Ward Ranch), has brought proceedings against the first defendant – the Minister of Conservation (the Minister) – and the second defendant – Auckland/Waikato Fish and Game Council (Fish and Game) – alleging nuisance and trespass arising from the maintenance and operation of a weir on the Whangamarino River. Ward Ranch says that the maintenance and operation of the weir has caused flooding on parts of its farm property.
[2] Both the Minister and Fish and Game deny liability. Both raised limitation issues as affirmative defences. They both pleaded that the proceedings are statute barred by s 4 of the Limitation Act 1950 (the 1950 Act) and/or by s 11(1) of the Limitation Act 2010 (the 2010 Act).
[3] The parties agreed that the limitation defences should be tried as a preliminary question pursuant to r 10.15 of the High Court Rules, and Associate Judge Smith directed accordingly on 17 April 2018. The agreed (and slightly annotated) question for determination is as follows:
Are the plaintiff’s causes of action, or either of them, time barred by the 1950
Act and/or the 2010 Act?
Factual background
[4] There is a statement of facts agreed for the purpose of determining the preliminary question. I have drawn in part from that statement.
[5] The Whangamarino wetland is located in the Waikato region, some 45 kilometres north of Hamilton. It covers an area of approximately 7,000 hectares. It is the second largest wetland in the North Island. The majority of the wetland is administered by the Minister through the Department of Conservation as a Government Purpose Reserve subject to the provisions of the Reserves Act 1977. There is some private land situated within the wetland, including parts of Ward Ranch’s farm.
[6] The hydrological regime affecting the wetland is complex. Broadly, the wetland comprises three shallow basins. It receives water from the Waikato River catchment, via Lake Waikare and as part of the Lower Waikato-Waipa flood control
scheme. The wetland is drained by the Maramarua and Whangamarino rivers and by the Reao Stream. It discharges into the Waikato River via the Whangamarino River.
[7] Lower water levels in the Waikato River between 1965 and 1989 resulted in reduced water levels in the wetland. Small areas of permanent open water dried up. So did areas of the wetland that were previously swamps. Areas that were the subject of seasonal flooding became drier because water was draining from the wetland too quickly.
[8] The Minister and Fish and Game determined to restore the wetland. They proposed a weir in Whangamarino River, downstream of the confluence of the Maramarua and Whangamarino rivers. It was intended that the weir would ensure that a minimum water level is maintained in the wetland, particularly during dry periods.
Maintaining a minimum water level was considered necessary to provide habitat for a range of species, and to prevent the desiccation of the swamp and marsh areas comprising the wetland.
[9] A resource consent was granted to the Minister and to Fish and Game jointly for the construction of the weir in 1992. It authorised them to dam the Whangamarino River for a term expiring on 30 March 2027. The consent was subject to various conditions. Those conditions were amended in 1997 and again in 2011. Relevantly, one condition initially provided that the maximum weir height and its crest was not to exceed 3.15 metres RL Moturiki datum. This condition was amended in 1997, and an additional condition was inserted. These amended conditions required that, after a trial period at a lower height, the maximum weir height as measured at the lowest point of a V-notch, which is more or less in the centre of the weir, was not to exceed 3.14 metres RL Moturiki datum.
[10] The weir was completed by Works Civil Construction in 1994 in accordance with the resource consent. It had a 30-metre-long crest with a V-notch at a height of
3.14 metres RL Moturiki datum.
[11] The weir first started to affect water levels in the wetland in about January 1994 (although it was only officially opened in April 1994). However, flood conditions in July/October 1994 scoured the weir crest. This damage was repaired in February 1995
and the full effect of the weir became apparent between February and April 1995. High flows in April 1995 again scoured the weir crest so that, after April 1995, the weir had no effect on wetland water levels. The weir remained in a damaged state until it was reconstructed over the period April 2000 to August 2001. There have been no further works of any material nature on the weir since that date, although there were some repair works in 2010.
[12] The Department of Conservation has not routinely inspected the weir. Rather, inspections have been carried out on an “as required” basis. The rock rubble construction of the weir and the characteristics of the bed material on which it is constructed have meant that there has been some ongoing settlement of the weir structure. Surveys in 2014 and 2016 confirmed settlement to 2.88 metres RL Moturiki datum – which is a little below the design level the subject of one of the resource consent conditions – namely 2.95 metres RL Moturiki datum.
[13] Various monitoring reports have been prepared over the years – relevantly in
2007, 2015 and 2016. The 2007 monitoring report summarised the results of surface and groundwater monitoring undertaken between January 1998 and April 2007. It reported that water levels upstream of the weir were, on average, 1.1 metres higher in summer and 0.2 metres higher in winter than the pre-weir water levels. The 2015 and
2016 monitoring reports did not contain equivalent data but both recorded that the weir was at the relevant times generally performing as intended and that it was still achieving target water levels within the wetland. It seems to be common ground that this remains the position.
[14] The Minister and Fish and Game have no current plans to remove or modify the weir. The resource consent conditions are, however, currently under review. This review was initiated by the Waikato Regional Council.
[15] The farm property owned by Ward Ranch is in Swan Road, Te Kauwhata, some
11 kilometres from the weir. It is partly within, and partly adjacent to, the wetland.
Statement of claim
[16] The statement of claim is dated 29 September 2017. It was filed on 5 October
2017.
[17] It asserts that Ward Ranch was at all material times the proprietor and beneficial owner of the farm property in Swan Road. It refers to the defendants jointly constructing the weir for the purpose of raising and maintaining minimum water levels in the wetland. It goes on to refer to the 2014 survey indicating settlement of the weir to a crest height of 2.88 metres RL Moturiki datum, and asserts that the defendants have maintained and continue to maintain the weir at approximately that height in order to divert water from the Whangamarino River and to maintain elevated water levels in the wetland.
[18] Ward Ranch then pleads the tort of nuisance. In short, Ward Ranch says that:
(a)the existence, maintenance and operation of the weir has had the effect of raising the water level in the Whangamarino River, its tributaries and in various parts of the surrounding land to a level of approximately one metre higher than the water level that existed without the weir and that would still exist if the weir were not in place;
(b)the maintenance and operation of the weir has caused flooding in parts of its farm property;
(c)the flooding has prevented parts of the farm from being used for productive agricultural purposes, because the land is either permanently under water, or under water for such lengths of time that it is not feasible to establish pasture or make other use of the land for productive agricultural purposes;
(d)if the weir was not maintaining elevated water levels on the affected parts of its farm, the flooded land would otherwise be available for grazing at most times;
(e)damages of $780,000 are claimed for the six years immediately prior to the filing of the proceedings;
(f)damages of $400,000 are claimed on the basis that the value of the farm has been reduced given the flooded state of part of the farm land; and
(g)the maintenance and operation of the weir by the defendants has caused and is causing unreasonable effects on its farm, and that the weir has caused and is continuing to cause an actionable private nuisance.
[19] In relation to the tort of trespass, Ward Ranch says that:
(a)the ongoing maintenance and operation of the weir by the defendants has unjustifiably caused and continues to unjustifiably cause water to enter and occupy parts of its land without authorisation from it, and that this constitutes a trespass to its land;
(b) damages in the same sums as set out above are sought; and
(c)as an alternative, it seeks an order for recovery of possession of the flooded land.
[20] Exemplary damages are sought in the sum of $100,000. Ward Ranch asserts that the Minister has expressly acknowledged at all relevant times that there was a legal obligation on the Crown to compensate affected land owners for losses caused by flooding from the operation of the weir, that the Minister has reached agreement to settle claims made by other land owners, but that the Minister has refused to negotiate with it in any meaningful way.
[21] Ward Ranch’s pleading was challenged by the defendants and, on 4 May 2018, it filed a memorandum setting out further particulars of the acts or omissions on which its claim is based. It asserted that the relevant acts or omissions were:
(a) the retention, monitoring, maintenance and operation of the weir;
(b)the diversion of water into its land by the retention, operation and maintenance of the weir;
(c)the election by the defendants to exercise their resource consent to regulate water levels in the Whangamarino River and the wetland by the retention and operation of the weir; and
(d)the failure by the defendants to remove or modify the weir to reduce or eliminate the diversion of water onto its land.
Each of these acts or omissions were said to have occurred since the date of the statement of claim – namely 29 September 2011.
[22] As noted, both defendants have denied liability, although both accept that, for the purposes of considering the preliminary question which is before the Court, it can be assumed that any alleged flooding on Ward Ranch’s land has been caused by the weir.
Summary of submissions
[23] Ms Roff, for the Minister, argued that the applicable limitation statute is the
1950 Act. She observed that Ward Ranch’s claim is in tort, and argued that s 4(1) of the 1950 Act applies. She submitted that Ward Ranch’s cause of action based in nuisance accrued as soon as the alleged loss or damage occurred, and argued that accrual of the cause of action coincided with the reconstruction of the weir sometime between April 2000 and August 2001. She submitted that any ongoing damage to farming operations allegedly attributable to the operation of the weir thereafter is merely a continuation or progression of the loss or damage sustained when the cause of action first accrued, and that it cannot be categorised as a fresh cause or causes of action. Ms Roff further submitted that Ward Ranch’s claim fails to distinguish what loss or damage has occurred and when it occurred, and said that no separate or distinct foundation has been pleaded for any cause of action that has accrued within the six- year period prior to the commencement of the proceedings. Further, she argued that there has been no change of circumstances that could have caused sufficiently distinct damage so as to give rise to a separate or fresh cause of action.
[24] In respect of the cause of action alleging trespass, Ms Roff submitted that this
cause of action accrued as soon as the alleged positive act was committed, namely the reconstruction of the weir in 2000/2001. She submitted that any continuing loss or damage thereafter is simply an incident of the initial cause of action.
[25] Ms Roff also argued that the 2010 Act is not applicable, because the only relevant act or omission that could give rise to any liability must coincide with the
reconstruction of the weir in 2000/2001. She noted that the weir has not changed in any material way since that time. She argued that as a result, the 2010 Act has no application. In the alternative, she argued that even if the 2010 Act applies, Ward Ranch’s causes of action cannot succeed, because the only relevant act or omission occurred more than six years prior to the commencement of the proceedings.
[26] Ms Hughes QC, appearing for Fish and Game, adopted the Minister’s submissions, and posed the question – what happened on 29 September 2011 which founded a cause of action? She submitted that the weir is a static structure that has been in the same configuration since August 2001, and that its effect has not changed or grown since that date. She referred to correspondence received from representatives of the plaintiff over the years, and argued that that correspondence suggests that the weir has been affecting Ward Ranch’s farm for very many years. She noted that notwithstanding these various assertions, no proceedings were issued within the relevant timeframe and she submitted that as a result the proceedings are now statute barred.
[27] Mr Lang, for Ward Ranch, submitted that the act or omission relied on is the alleged diversion of water from the Whangamarino River onto Ward Ranch’s land by virtue of the operation, retention and maintenance of the weir during the period of six years immediately prior to the commencement of the proceedings. He argued that on this basis, the 2010 Act applies. He accepted that the last act of construction that materially affected the performance of the weir occurred in 2000 and 2001, but argued that is not the relevant act or omission for the purposes of the causes of action pleaded. He accepted that Ward Ranch would have no claim if it were not for the further diversion of water onto its land during the period covered by the statement of claim – namely September 2011 to September 2017. He argued that over that period, the defendants have maintained and operated the weir at or about its design levels, with the intention of maintaining minimum water levels in the wetland, and that they have at all times had the option of either removing the weir or reducing its level, to minimise its effects on Ward Ranch’s land. He said the defendants have chosen at all relevant times to retain the weir in place at its design level or thereabouts, and to monitor, maintain and repair the weir when necessary to ensure its ongoing effectiveness in raising minimum water levels within the wetland. He argued that this has had the
effect of diverting water onto parts of Ward Ranch’s land that would otherwise not be flooded.
[28] Mr Lang accepted that if the relevant act or omission occurred in 2000 or 2001, then the 1950 Act would apply. He, however, denied the assertion that the damage should be categorised as a continuation or progression of damage that arose in 2000 or 2001. He submitted that the alleged damage that is the subject of the present proceedings is damage suffered during the six years immediately prior to the commencement of the proceedings, that the 2010 Act applies, and that it does not operate to preclude a claim being brought in respect of damage accruing post September 2011.
Analysis
The 1950 Act
[29] Section 4(1) of the 1950 Act relevantly provides as follows:
4Limitation of actions of contract and tort, and certain other actions
(1)… the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say,—
(a) actions founded on simple contract or on tort:
…
[30] In an action in tort, the critical issue under the 1950 Act is – when did the cause of action accrue?
[31] A cause of action accrues “… when every fact exists which it would be necessary for the plaintiff to prove in order to support his or her right to the judgment of the court”.1 It accrues at “… the point of time at which everything has happened
entitling the plaintiff to the judgment of the court on the cause of action asserted”.2
1 Hunt v New Plymouth District Council [2011] NZCA 406 at [72].
2 At [72]. See also Trustees Executors Ltd v Murray [2007] NZSC 27, [2007] 3 NZLR 721 at [69].
Accrual is an occurrence-based, not a knowledge-based, concept.3 The 1950 Act is structured around this fundamental starting point.4
The 2010 Act
[32] Section 11(1) of the 2010 Act relevantly provides as follows:
11 Defence to money claim filed after applicable period
(1)It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least 6 years after the date of the act or omission on which the claim is based (the claim’s primary period).
[33] A money claim is a claim for monetary relief at common law, in equity or under an enactment.5
[34] Under the 2010 Act, the limitation period for an action in tort runs from the date of the act or omission on which the claim is based. There has been a shift away from when the cause of action relied on accrued, which required an analysis of the elements required to prove each cause of action relied on, to a common start date, being the date of the act or omission on which the claim is based.6
[35] Due to the change in position under the 2010 Act, it is unnecessary to distinguish, for limitation purposes, between a cause of action in nuisance and a cause of action in trespass. As the Law Commission stated in its report prior to the introduction of the 2010 Act:7
60. … Except for the torts of negligence and nuisance, this reform will not alter in substance the time within which a claim in contract or tort is to be brought. For negligence and nuisance time will run from the date of the defendant’s act or omission, not from the date damage occurs.
(Citations omitted)
3 Trustees Executors Ltd v Murray, above n 2, at [69].
4 At [69]. And see generally the discussion in chapter five of Andrew McGee Limitation Periods
(8th ed, Sweet & Maxwell, London, 2018).
5 Limitation Act 2010, s 12(1).
6 See generally JC Corry Limitation Act Handbook (LexisNexis, Wellington, 2011) at [0.4] and
[11.1.1]-[11.1.6].
7 Law Commission Limitation Defences in Civil Cases: Update Report for the Law Commission
(NZLC MP16, 2007).
The causes of action pleaded
[36] As noted, Ward Ranch sues in nuisance and in trespass.
[37] The distinction between the two torts was noted by the Court of Appeal in BEMA Property Investments Ltd v Body Corporate 366611.8 The Court there stated as follows:
[45] Trespass is an unjustified direct interference with land in the possession of another. The cause of action protects the possessory interest, and it does so in a simple and powerful way; trespass is actionable without proof of actual damage and although the act of trespass must be intentional, honest mistake affords no defence. Injunction is a usual remedy. Justifications are few — essentially, consent, statutory authority, and necessity — and no question ordinarily arises of balancing harms and benefits of the plaintiff's use, on the one hand, and the purpose for which the defendant asserted control, on the other.
[46] Nuisance is an interference with the use and enjoyment of land, differing from trespass in that it rests not on interference with the plaintiff's exclusive possession, but rather on disturbance of the plaintiff's use. Like trespass, nuisance supports property rights. A given wrong may be actionable in both trespass and nuisance. However, nuisance may require that competing uses be balanced; on the one hand, the plaintiff's right to undisturbed enjoyment of its land, and on the other, the defendant's right to use its land for its lawful purposes. Considerations such as unreasonableness of the respective uses and location, intensity and timing, frequency, and duration of the interference may be taken into account …
(Citations omitted)
[38] The conduct of a defendant can amount to nuisance if its impact is to cause an encroachment on the plaintiff’s land, cause physical damage to the plaintiff’s land or buildings or works or vegetation on it, or unduly interfere with the plaintiff’s comfortable and convenient enjoyment of his or her land.9 Nuisance requires proof of actual (or imminent) damage.10
8 BEMA Property Investments Ltd v Body Corporate 366611 [2017] NZCA 281, [2018] 2 NZLR
514. See also Semple v Wilson [2018] NZHC 992 at [47]; Wu v Body Corporate 366611 [2014] NZSC 137, [2015] 1 NZLR 215 at [120]-[124]; Tindall v Far North District Council HC Auckland CIV-2003-488-135, 20 October 2006 at [60]; Bill Atkin “Nuisance” in Stephen Todd (ed) The Law
of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) 525 at [10.2.01].
9 Michael Jones (ed) Clerk and Lindsell on Torts (22nd ed, Sweet & Maxwell, London, 2018) at
[20-06]-[20-08].
10 Hunt v New Plymouth District Council, above n 1, at [72]; Lemmon v Webb [1894] 3 Ch 1 (CA)
at 11; Davey v Harrow Corp [1958] 1 QB 60 (CA) at 71 and 73; Atkin, above n 8, at [10.2.01].
[39] Trespass is an unjustified direct interference with land in the possession of another,11 and the tort is actionable without proof of actual damage.12
Which Limitation Act applies?
[40] If Ward Ranch was alleging nuisance or trespass arising from flooding caused by the act of reconstructing the weir in 2000/2001, then its causes of action would arguably be statute barred under the 1950 Act. Contemporaneous correspondence suggests that the weir was causing flooding on Ward Ranch’s land in 1995 and 1996. Further, in 2000, letters were written on behalf of Ward Ranch. One of the letters stated as follows:
We wish to advise that we will be seeking compensation for the flooding of our land due to the weir system built in the Whangamarino swamp. Lifting our water table, flooding our land, ruining our fences and leaving no grazing for our livestock on this part of our land at all.
Assuming that these assertions were correct, it would seem that everything had happened – probably as at 1995, but certainly by 2000 – which would have entitled Ward Ranch to a judgment of the Court in its favour, and whether in nuisance or in trespass.
[41] Ward Ranch’s causes of action are not, however, based on the act of reconstructing the weir in 2000/2001. Both in its statement of claim and in the further particulars provided on 4 May 2018, Ward Ranch makes it clear that the acts and omissions on which it is relying are the retention, maintenance and operation of the weir since September 2011. It says that these acts and omissions have caused the diversion of water onto its land during the six-year period covered by its statement of claim.
[42] On the pleadings, the 1950 Act cannot apply. It was repealed by the 2010 Act from 1 January 2011.13 While the 1950 Act, as amended by the 2010 Act, continues
to apply to actions, causes of action or rights of action based on acts or omissions
11 Wu v Body Corporate 366611, above n 8, at [115].
12 Lakes Edge Developments Ltd v Kawerau Village Holdings Ltd [2017] NZCA 205, [2017] 3 NZLR
336 at [39]. See also Bill Atkin “Trespassing on Land” in Stephen Todd (ed) The Law of Torts in
New Zealand (7th ed, Thomson Reuters, Wellington, 2016) 481 at [9.2.01].
13 Limitation Act 2010, s 57.
before 1 January 2011 to which the 1950 Act applied immediately before its repeal,14
this proviso does not apply to the case as pleaded.
[43] Ward Ranch is entitled, for the purposes of determining the preliminary question before the Court, to point to its statement of claim and to the further particulars it has provided, and its pleadings rely on acts or omissions it says happened after September 2011 – namely the defendants’ action in maintaining and continuing to operate the weir, or, to put it another way, the defendants’ omission to remove the weir or to alter it so that it is no longer causing a nuisance or a trespass. Ward Ranch is, in effect, saying that the damage caused by flooding during the period 2011 to 2017 is not the same damage, nor any progression of any previous damage, that was caused following the reconstruction of the weir in 2000/2001. Rather, it is new damage. It says that water is constantly flowing in and out of the wetland, and that the flooding it says it has suffered over the six years preceding the filing of its claim is distinct from any flooding that previously occurred.
[44] As pleaded, the acts or omissions that are said to give rise to the alleged nuisance and trespass claims occurred over the period September 2011 to September
2017. There is no limitation defence available because the claim was brought within six years after the pleaded acts or omissions occurred.
Continuing damage?
[45] Even if I am wrong in this regard, it is arguable that Ward Ranch is entitled to pursue its causes of action under the 1950 Act.
[46] Under the 1950 Act, damage that was a continuation or progression of damage arising during the original limitation period could not generally be claimed. Unless a plaintiff could show a new wrong committed within the limitation period, he or she could not succeed.15 However, at least in principle, where an act was actionable only on proof of actual damage, successive actions could lie for each successive and distinct
14 Section 59. See also ss 61-62.
15 Moot v Crown Crystal Glass Ltd [1976] 2 NZLR 268 (SC) at 274.
accrual of damage.16 Where, for example, there was a continuing nuisance, the right of action accrued afresh every day but damages could be recovered only for that part of the loss which arose within the limitation period before the commencement of the proceedings.17
[47] Where damage is not essential to the cause of action alleged, continuing damage does not affect the time when the cause of action arose, for it is but an incident of the initial cause of action.18 Where damage must be shown and continuing conduct causes continuing damage, each fresh continuance, however, can give rise to a fresh cause of action. So also if distinct damage occurs on different occasions, there is a new cause of action each time that damage occurs.19
[48] On Ward Ranch’s case, the construction of the weir was not a wrongful act. It was undertaken pursuant to a resource consent which was lawfully obtained. Ward Ranch says that the wrongful act lay, and still lies, in the diversion of water onto parts of its farm and that the cause of action in nuisance is established on each occasion when damage is caused by the entry of water onto its land. It sues in respect of damage caused over the six-year period prior to the commencement of its proceedings.
[49] Even if the 1950 Act applies, it is arguable that Ward Ranch’s case, insofar as it relies on the tort of nuisance, is not necessarily shut out by s 4(1) of the 1950 Act. If continuing conduct by the defendants is causing continuing damage, or if there is distinct damage on different occasions,20 then Ward Ranch might have a cause of action which is not precluded by the 1950 Act, but only in respect of damage which
arose within the six-year period before it commenced the proceedings.
16 Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 (CA) at 243. See also Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 (HL) at 133 and 135; Crumbie v Wallsend Local Board [1891] 1 QB 503 (CA) at 508; Phonographic Performance Ltd v Department of Trade and Industry [2005] 1 All ER 369 (Ch) at [22]-[23], [28] and [53]; Taylor v Auto Trade Supply Ltd [1972] NZLR 102 (SC) at 108-109; T v H [1995] 3 NZLR 37 (CA) at 40-41 (this was a minority judgment but the majority did not take issue with the observations); Attorney-General v Edmonds [2006] NZCA 146 at [64]-[66].
17 McGee, above n 4, at [5.005].
18 T v H, above n 16, at 52.
19 Atkin, above n 8, at [26.5.06(6)].
20 Whether any damage is sufficiently distinct from that which occurred in 2000/2001 would be a question of fact or degree for the trial Judge – Bowen v Paramount Builders (Hamilton) Ltd [1977]
1 NZLR 394 (CA) at 424 per Cooke J.
Conclusion
[50] For the reasons I have set out and on the materials presently before the Court, I conclude that neither of the plaintiff’s causes of action are time barred by either the
1950 Act or the 2010 Act.
Costs
[51] Ward Ranch is entitled to one set of costs and to its reasonable disbursements. It is my preliminary view that costs should be fixed on a 2B basis, and that they should be shared equally between the Minister and Fish and Game. If counsel agree, then they should be able to finalise the relevant costs and disbursements between themselves. If counsel disagree, then I direct as follows:
(a)Ward Ranch is to file a memorandum advising the costs and disbursements it is seeking within 10 working days of the date of this judgment;
(b)the Minister and Fish and Game are to file memoranda in response within a further period of 10 working days; and
(c) memoranda are not to exceed five pages.
I will then deal with costs and disbursements on the papers unless I require the assistance of counsel.
Wylie J
3
6
0