Yolande Elisabeth Mark v The Attorney-General
[2011] NZSC 94
•23 August 2011
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 63/2011 [2011] NZSC 94 |
| BETWEEN YOLANDE ELISABETH MARK & ORS |
| AND THE ATTORNEY-GENERAL OF NEW ZEALAND |
| AND THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND |
| AND NEW ZEALAND TRANSPORT AGENCY |
| AND KAPITI COAST DISTRICT COUNCIL |
| Court: Blanchard, Tipping and William Young JJ |
| Counsel: J B M Smith and W L Aldred for Applicants |
| Judgment: 23 August 2011 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed with costs of $2,500 to each of the first and second respondents (jointly) and the third and fourth respondents (jointly).
REASONS
The applicants’ proposed appeal has no merit. They seek to raise what is fundamentally a factual question which could properly have been resolved against them under either s 40(1)(a) or (1)(b) of the Public Works Act 1981. We agree with the Court of Appeal[1] that this was not a suitable case for a stepped approach and with the High Court[2] (and the provisional view of the Court of Appeal) that the subject land continued to be required for an essential work despite the financial standoff between the National Roads Board and the local authority. The land in question was all along wanted for a major road. The only matter in doubt was who would build it and how it would be paid for.
[1] Mark v Attorney-General [2011] 2 NZLR 538, [2011] NZCA 176.
[2] Mark v Attorney-General HC Wellington CIV-2002-485-799, 27 October 2009.
When the factual position is realistically appraised, we find it somewhat surprising that the case was brought in the first place – apparently for the benefit principally of a developer who thought fit to acquire any rights of the nominal plaintiffs.
Solicitors:
Paul Cassin, Auckland for Applicants
Crown Law Office, Wellington for First and Second Respondents
Chapman Tripp, Wellington for Third and Fourth Respondents
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