Court of Appeal Judgments of Public Interest

Intellectual property — trade marks — comparative advertising.

Zuru’s appeal is allowed. We make a declaration that the use of the word "LEGO" in Zuru’s original compatibility statement did not infringe the registered trade mark LEGO Lego’s cross-appeal is dismissed. 

Zuru is entitled to band A costs for a standard appeal. We certify for second counsel. 

Lego has been a leading manufacturer of plastic building bricks, baseplates and figures since the late 1940s, although the Lego name originated several years before that. Although the patents and copyright Lego once held on its basic brick and baseplate products have long since expired, the registered trade mark LEGO remains. Zuru markets their own plastic toy building bricks and related products under the trade mark MAX BUILD MORE. Zuru’s plastic toy brick products are compatible for use with Lego's products. Zuru wishes to tell consumers this and have sought to do so through the use of a compatibility statement on the packaging of their products: "LEGO® BRICK COMPATIBLE". The statement uses the word mark, but not the well-known LEGO logo. 

The High Court determined that the compatibility statements constituted infringing use under s 89 of the Trade Marks Act 2002 (TMA). He also found that the statements were not protected by the statutory defences of comparative advertising (s 94) or use indicating the quality of purpose of the goods (s 95) because the use had not been in accordance with honest practices. He did not, however, consider that Lego's counter-claims of passing off or breaches of the Fair Trading Act 1986 (FTA) were made out. Zuru and Lego each appeal these findings.

 The Court allows the appeal with reasons given by Ellis and Palmer JJ and concurring reasons given by Cooke J. 

Was the use here "use as a trade mark"? 

Per Ellis and Palmer JJ: No. Use as a trade mark in terms of s 89(2) is concerned with the orthodox function of a trade mark: as a badge of origin in the user. There will be no infringement if the Lego mark was not used by Zuru in a manner likely to be taken as indicating the trade origin of Zuru’s goods. The orthodox conceptual distinction between use "as" and use "of' a trade mark is reflected in the TMA as it had been in s 8(1A)(d) of the Trade Marks Act 1953. When enacting the TMA there was a conscious Parliamentary decision not to carry over the concept of deemed infringement by "importing a reference" to a sign or mark. The broader concept of use as a trade mark and use of trade mark function argued for by Lego is based on the expansive European approach, which is not the position in New Zealand. The defence provisions also do not support Lego's proposed interpretation of s 89(2). Section 89(2) operates as a gateway to infringement and, so, to the defence provisions, most of which are very clearly predicated on use as a trade mark (prima facie infringement) having first been established. Section 94 should not be interpreted as an exception or outlier in that regard. 

Here, the High Court erred in assessing whether the LEGO mark was used by Zuru as a badge of origin. The relevant question was whether relevant consumers would think that the LEGO mark is telling them the trade source of the Zuru bricks. While the LEGO mark is relatively prominent, larger than the rest of the descriptive phrase and LEGO has no further meaning beyond the connection with the toy products, its use here is purely descriptive. The compatibility statement would indicate to relevant consumers that the MAX bricks are not LEGO bricks but can be used with them. This is not a use with trade mark significance. 

Per Cooke J: Yes. Use of a trade mark requires the use of the mark to identify the trade mark owner's goods or services, but there is no requirement that there be misappropriation of the owner's intellectual property. The passing of the Trade Marks Act 2002, and particularly the inclusion of the new comparative advertising defence contained in s 94, indicates that the scope of permissible comparative advertising was intended to be clearly defined. A narrower conception of use, as the majority holds, would render s 94 otiose and frustrate the legislative intent. Here, LEGO is a made-up word, and any use of such a word is necessarily use as a trade mark. Section 89(2) is engaged here.

 
Was the comparative advertising defence engaged here? 

Per Ellis and Palmer JJ: As there was no use of a trade mark in terms of s 89(2), this question need not be determined. If that conclusion was wrong, however, the comparative advertising defence would apply to protect Zuru’s use here. 

Per Cooke J: Yes. The High Court Judge erred in narrowly construing the comparative advertising defence. Claims of equivalence are able to give rise to the defence, as well as claims of superiority. The use was also in accordance with honest practices. The statement was true, it was not unfair, there is no confusion arising from the use of the trade mark, and there was an open and obvious comparison. An aggressive comparison between goods to obtain a customer base is not dishonest practice, but rather is simply competition. As the claim of equivalency here was comparative advertising and it was in accordance with honest practices, the comparative advertising defence is engaged here. 

Was Lego's counter-claim of passing of and misleading conduct made out? 

Per Ellis and Palmer JJ (Cooke J agreed): No. At trial, Zuru rightly accepted that Lego’s trade mark had acquired strong goodwill and reputation. Accordingly, the FT A and passing off claims turned on whether Zuru had used the LEGO trade mark so as to confuse or deceive the relevant public. As the High Court Judge found, the counter-claims were not made out. The Judge was correct to reject the argument put forward by Lego's expert - Professor Klein - that consumers would be misled by Zuru’s packaging because reasonable customers view packaging as a whole, customers rely on a range of diagnostic cues when purchasing, and the MAX mark would be correctly taken as that of a brand.

HUMAN RIGHTS - declaration of inconsistency - hate speech - freedom from discrimination - s 61, Human Rights Act 1993 - s 19, New Zealand Bill of Rights Act 1990

Mr Hoban is a homosexual man. On 27 July 2017, he became aware of a "sermon" given by a pastor, who said:

"My view on homo marriage is that the Bible never mentions it so I'm not against them getting married ... As long as a bullet goes through their head the moment they kiss ... Because that's what it talks about - not homo marriage but homo death.'

Mr Hoban was "horrified" at the remarks and the lack of a response by the police or the Human Rights Commission. He applied to the Human Rights Review Tribunal for a declaration of inconsistency under s 92J of the Human Rights Act 1993 (HRA) on the basis that s 61 (the "hate speech" provision) was inconsistent with the right to freedom from discrimination as affirmed by s 19 of the New Zealand Bill of Rights Act 1990 because it only prohibits hate speech based on colour, race, or ethnic or national origins, and not hate speech based on sexual orientation.

The Tribunal found against Mr Hoban. Mr Hoban unsuccessfully appealed to the High Court. With leave, he now appeals again to this Court.

Is the legislative omission of the ground of sexual orientation from the protection against hate speech afforded by s 61 of the HRA discriminatory in terms of s 19(1) of the Bill of Rights Act?  Held: yes.

Those subjected to threatening, abusive or insulting language which excites hostility against people belonging to the prohibited grounds of discrimination in subss 21(I)(e)-(g) of the HRA receive the protection of ss 61 and 131, which acknowledges their s 19(1) right to freedom from discrimination. Those subject to language which excites hostility against people belonging to other prohibited grounds of discrimination in s 21(1) do not receive equivalent protection or acknowledgement. It is clear that this amounts to differential treatment: the statute puts some categories of prohibited grounds of discrimination in a special category which it denies to others. This differential treatment causes a disadvantage because no statutory remedy is provided for the unprotected group. It follows that prima facie discrimination has been established, contrary to s 19(I) of the Bill of Rights Act.

Is s 61 of the HRA a measure falling within s 19(2) of the Bill of Rights Act?      Held: yes.

Section 61 is a measure taken by the legislative branch captured by s 19(2). It was also enacted "for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination", irrespective of the fact it only assists or advances a limited class of those subject to unlawful discrimination. "Assisting" is broader than "advancing", which is evidenced by Parliament using both terms in s 19(2). A person may be assisted by receiving protection against hate speech through laws which aim to prevent such speech occurring and to provide remedies when they do: this is what has led to the commencement of the present proceeding.

The complaint about s 61 is not that it does not assist those to whom it applies, but that it is underinclusive and does not assist the position of persons subject to hate speech on other grounds. But this does not mean that s 61 cannot be regarded as a measure intended to protect those to whom it applies, or that it is not included ins 19(2). It is relevant thats 61 was always intended to have a limited ambit; other forms of discrimination were never intended to be covered. Section 19(2) of the Bill of Rights Act therefore applies to s 61 of the HRA. Section 61 therefore does not constitute discrimination in accordance with s 19(2).

Despite the other grounds then being moot, the Court went on to consider them to assist the Supreme Court in the event of an appeal.

Is the omission of sexual orientation ins 61 of the HRA a justified limit for the purposes of s 5 of the Bill of Rights Act?     

The Crown has a proactive justificatory role where there is a limit on a right. In this case Parliament has not curtailed an existing right: it has afforded protection to a limited class of the people likely to be subject to hate speech. The justification issue must be approached on the basis that the provision said to create the unlawful discrimination is one that seeks to protect those to whom it applies, which gives rise to such a significant issue here about deference and legislative choice. It is well-established that the court's review of a justification will be more intensive when the matter is more legal than political, social or economic. Here, there is a significant issue about the extent to which the Court passing judgment about justification risks trenching on matters which are for Parliament to determine.

A limited extension of the hate speech law to cover sexual orientation would raise legitimate questions about why a more comprehensive approach had not been taken. There is no consensus about expanding hate speech protections (as demonstrated by the history of the provisions). Further, a more extensive hate speech law could give rise to issues about freedom of expression. Parliament might consider that not all of the prohibited grounds of discrimination will require the same human rights response or engage the same rights to freedom of speech and religion-these are not straightforward assessments, and they are ones most appropriately made by the broadly representative legislative branch rather than through litigation. We emphasise however that the provisions to which Mr Butler referred in the United Kingdom, Ireland, Canada and Australia make the omission of a hate speech proscription based on sexual orientation in New Zealand increasingly anomalous.

Regarding the Crown's present justification argument, the discriminatory nature of s 61 is not demonstrably justified on the basis of New Zealand's international obligations alone. Whether the omission of hate speech on the grounds of sexual orientation is demonstrably justified is not logically answered by pointing to inclusion in the HRA of hate speech on the grounds of colour, race, or ethnic or national origins. The discriminatory effects of the section can be demonstrably justified by focusing on Parliament's original motivation for enacting s 61.  This approach might underplay the New Zealand legislature's own commitment to human rights. Furthermore, the question raised by s 5 must be addressed on the basis of current standards and an analysis which rests solely on the content of international instruments adopted 60 years ago seems inappropriate. With respect to the Crown's concern regarding freedom of speech, it is not clear why proscribing hate speech based on sexual orientation should impose any greater detriment to freedom of speech than was the case with the inclusion of colour, race, or ethnic or national origins in s 61. It is, in any event a matter for Parliament.

Should this Court issue a declaration of inconsistency?           Held: no.

As s 19(2) applies to s 61 of the HRA and the appeal cannot succeed, no declaration of inconsistency can be made. This Court endorses the High Court's expression of sympathy for Mr Hoban.

Result: The appeal is dismissed. There is no order as to costs.

IMMIGRATION LAW – JUDICIAL REVIEW – RIGHTS OF APPPEAL – IMMIGRATION ACT 2009 – JURISDICTIONAL PATHWAY – PROCEDURE 

Mr Sroubek is a Czech national who was granted a visitor’s visa, and subsequently a resident’s visa, using a false name.  The deception was discovered, and he was found guilty at trial of possessing a false passport and giving false information but discharged without conviction.  Mr Sroubek was later convicted of importing Class B drugs (MDMA) and imprisoned for a term of five years and nine months.  

While Mr Sroubek was in prison, Immigration New Zealand initiated an inquiry into his possible deportation. The then Minister of Immigration cancelled the liability for deportation and granted Mr Sroubek a resident visa under his true identity on the condition he provide a valid Czech passport in his real name.  The decision was controversial and attracted significant publicity.  The Minister changed his mind, and made Mr Sroubek liable for deportation on a different ground under the Immigration Act 2009. 

Mr Sroubek then lodged appeals against the Minister’s decision in the Immigration and Protection Tribunal on 18 December 2018.  Under the Act, there are two types of appeal available in respect of deportation liability, being an appeal on the facts and an appeal on humanitarian grounds.   

The Tribunal dismissed the facts appeal and upheld Mr Sroubek’s liability for deportation, finding his visa was granted as the result of an administrative error and thus his liability for deportation was able to be determined. In the humanitarian appeal, the Tribunal found by a “narrow margin” that there were exceptional humanitarian circumstances given that Mr Sroubek had spent most of his adult life in New Zealand, but it would not be unjust for him to be deported in the circumstances. 

Mr Sroubek filed two applications in the High Court: (1) leave to appeal both Tribunal decisions, and (2) an application for judicial review concerning the Minister’s deportation decision.  After the proceedings were filed, two preliminary issues regarding jurisdiction and time limitation arose.  The High Court determined both issues in favour of the Minister of Immigration.  It held Mr Sroubek’s application for leave to appeal the facts decision was out of time and that he had brought his application for judicial review under the wrong section.  Mr Sroubek now appeals. 

For the purpose of the time limits imposed by s 245(2) of the Immigration Act 2009, are facts appeals and humanitarian appeals in the Immigration and Protection Tribunal two separate appeals or one appeal? 
Held:  upholding the High Court’s interpretation of s 245, the text and purpose of the section support the view that facts appeals and humanitarian appeals are two separate appeals.  The High Court was therefore correct to find the application for leave to appeal the facts decision was out of time. 

Throughout the Act, various sections indicate facts appeals and humanitarian appeals are to be treated as distinct proceedings by use of the term “appeals” (plural).  The two types of appeal also raise different issues:  facts appeals are about the factual basis for liability for deportation whereas humanitarian appeals are about whether the effects of deportation will create humanitarian circumstances of an exceptional nature.  

There are benefits in having each separate proceeding continue moving through the system promptly and concerns to the contrary were overstated.  The High Court’s interpretation is also consistent with the Tribunal’s practices.   

Was the correct statutory pathway governing Mr Sroubek’s judicial review proceeding s 247 or s 249 of the Immigration Act 2009? Held:  
The correct pathway was s 247.  Mr Sroubek had filed his application under s 249 in what the Court found was a mistaken belief that s 249(1) precluded him from bringing judicial review proceedings under s 247.  However correctly understood, s 249(1) only applies to grounds of judicial review that are within the Tribunal’s jurisdiction. Mr Sroubek’s grounds of review were outside the Tribunal’s jurisdiction.  

Prior to the decision of the Supreme Court in H v H (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 the approach taken by the Minister to ss 247 and 249 was the same as the one adopted by Mr Sroubek.  Under the Minister’s previous approach, s 247 was in effect only available to those with no right of appeal to the Tribunal because s 249(1) prevented applicants from bringing judicial review proceedings while an appeal process was still ongoing. The Minister’s interpretation however changed due to the Supreme Court decision which held on the facts before it that s 249(1) was not a barrier to H commencing judicial review immediately under s 247, that is to say without having to wait for the completion of the appeal process. 

The scope of the H decision was critical to Mr Sroubek’s appeal.  Mr Sroubek argued that H was distinguishable, whereas the Minister argued and the Court ultimately accepted, the reasoning in the H decision was equally applicable to this case.  

Section 249 must be given a construction that both recognises Parliament’s intention to prevent duplicative proceedings, but which also preserves the Court’s ability to supervise the exercise of public power and prevent injustice occurring when a statutory process fails.  In circumstances where the Tribunal has no jurisdiction to entertain arguments which could however be a ground of judicial review, a judicial review proceeding is more properly viewed as a parallel proceeding, not a duplicative one.  The ability of the Court to supervise the exercise of public power is impeded if a person adversely affected by deficiencies in the exercise of public power is prevented from going to the courts to have those deficiencies ventilated and considered without lengthy delay. 

Section 249 will only operate to restrict the filing of judicial review proceedings in so far as they relate to matters which are both within the Tribunal’s jurisdiction as well as being amenable to judicial review.  That is to say, s 249 is only triggered where there is an overlap.  Whenever the ground of review is not something within the Tribunal’s jurisdiction, then the affected person can file a proceeding in relation to that ground under s 247.  The Court rejected the argument that this would leave s 249 with no work to do.  Overlaps are a realistic possibility.   

In summary, correctly interpreted, s 249(1) did not prevent Mr Sroubek from bringing judicial review proceedings under s 247 when his grounds of judicial review were outside the Tribunal’s jurisdiction.  His correct course of action was therefore now to seek an extension of time under s 247. 

Result:  The appeal is dismissed.  There is no award of costs given the public interest in resolving significant uncertainty about the interpretation and application of the relevant statutory provisions. 

Criminal law - Conviction appeal - Sentence appeal - Murder  

Following a jury trial, Sean Hayde was found guilty of murdering Wiremu Arapo-Ngapaku, attempting to pervert the course of justice, male assaults female and threatening to kill. His co-offender was found guilty of manslaughter. He was sentenced to life imprisonment with a minimum term of imprisonment of 17 years. He appeals his conviction and sentence.  

Should the appeal against conviction be granted? Held: No.  
There was no prosecutorial misconduct in the way the Crown argued its case as the evidence it relied on provided a sound evidential foundation for its contention that Mr Hayde was the primary offender. As for speculative inferences in the Crown case, the Crown did no more than invite the jury to draw inferences from established facts. The Crown was entitled to rely on propensity evidence from his former partner. The trial Judge provided appropriate directions on all relevant issues. The cumulative effect of these alleged errors does not give rise to an unfair trial.  

Should the appeal against sentence be granted? Held: No.  
The High Court was correct to conclude that s 104(1A)(c) of the Sentencing Act 2002 in relation to home invasion applied; it is unrealistic to say Mr Arapo-Ngapaku had granted Mr Hayde a licence to enter his dwelling in the circumstances. As for discounts, what matters on appeal is not the methodology but whether the end sentence is manifestly excessive. The minimum period of imprisonment was not manifestly excessive given the circumstances of the case and Mr Hayde's personal circumstances, in particular premeditation, the fact there were two assailants and setting fire to the body in an attempt to avoid detection. 

Judicial review - Mistake of fact - New Zealand Bill of Rights Act 1990 

In response to COVID-19, a number of orders were made imposing face covering (masking) requirements. The appellant brought judicial review proceedings challenging two of those orders: the COVID-19 Public Health Response (Protection Framework) Order 2021 made on 30 November 2021 (the 2021 Order) and the COVID-19 Public Health Response (Masks) Order 2022 made on 12 September 2022 (the 2022 Order) (together, the Orders). The Orders were made under the COVID-19 Public Health Response Act 2020 (the Act). The appellant's challenge was dismissed in the High Court and the appellant was ordered to pay costs of $117,889.50 to the respondents. 

The substantive appeal, concerning the lawfulness of the face covering requirements imposed by the Orders, is dismissed. The appeal against the High Court costs decision is allowed. The costs order is set aside and replaced with an order that the appellants pay the respondents $29,472.38 in costs. There is no order in this Court as to costs. 

Is the appeal moot? Held: Yes. 
The appeal is moot given the 2021 Order and the 2022 Order have been revoked and the primary legislation under which the Orders were made has been repealed. However, the Crown did not seek to rely on mootness and the issues raised by the appeal are of sufficient legal and public importance for the matter to be heard and determined by the Court, despite the appeal being moot. 

Were the Orders made in reliance on a material mistake of fact? Held: No. 
The Court discussed the law on mistake of fact as a judicial review ground, concluding that in New Zealand there are two categories that fall under the heading of mistake that are an available ground of judicial review: a material mistake as to an established fact and mistake arising as a result of a flawed factual evaluation. The appeal raised only the first category of mistake. The Court also discussed the relevance of evidence post-dating the Orders, concluding that expert evidence impeaching or justifying the decision to make the Orders with the benefit of hindsight was irrelevant. 

Having regard to the respondents' evidence, the appellant failed to demonstrate that face coverings were not an effective measure to contribute to preventing or limiting the risk of the outbreak or spread of COVID-19, as a matter of established fact. That was the appellant's pleaded mistake of fact. Essentially, the appellant erroneously attempted to elevate the Cochrane reviews (which concerned randomised controlled trials conducted to evaluate the effectiveness of face coverings) into the definitive work on whether or not face coverings are effective. 

The appellant attempted to reformulate their argument, contending that the Ministers making the Orders were instead labouring under a mistake of fact because they did not appreciate there was uncertainty as to the effectiveness of face coverings. However, the Court was not satisfied that certainty as to the effectiveness of face coverings was a material factor in the Ministers' decisions to make the Orders. The evidence of the Ministers confirmed that they were aware the effectiveness of face coverings depended on a number of factors and ultimately face covering requirements were merely one part of a suite of measures. 

Did the Orders both engage and unjustifiably limit the right to refuse to undergo medical treatment? Held: No. After noting the parties' competing submissions on the point, the Court decided it was unnecessary in the context of a moot appeal, and without greater argument and analysis about international jurisprudence on the topic, to seek to determine the scope of the words "medical treatment" in s 11 of NZBORA. That was because the Court was well satisfied that, if the face covering requirements did limit the right in s 11, that limitation was demonstrably justified. In addition, the Court considered the Ministers were satisfied that the Orders "[did] not limit or [were] a justified limit on the rights and freedoms in [NZBORA]", as required by s 9(1)(ba) of the Act. 

Was the Orders' limitation on freedom of expression unjustified? Held: No. 
The Orders' limitation on freedom of expression was demonstrably justified because there was a substantial body of expert opinion that face coverings were effective in restricting the spread of COVID-19. The restriction on the right of expression was to a limited extent - it did not prevent expression, applied only to certain environments, and only for certain periods of time. It was also proportionate to the need for which it was imposed. 

Was the costs award against the appellant too high? Held: Yes. 
The Court considered there was significantly more public interest in the proceedings than the Judge in the High Court suggested. Acknowledging the recent decision in Chief of Defence Force v Four Members of the Armed Forces, where the Supreme Court did not see reason to depart from the ordinary rule that the successful party should be awarded costs, the Court viewed the present case as quite different given the much wider group of people affected by the face covering requirements. The Court also noted the measure of success the appellant had in the High Court in respect of the right to freedom of expression being engaged, along with the level of disbursements incurred by the respondents. As against that, the Court had regard to the Judge's concerns with the way the appellant conducted its case in the High Court. 

The Court considered the appropriate result was to order the appellant to pay 25 per cent of the respondents' total costs and disbursements in the High Court. That reflects the high public interest in a challenge to the face covering requirements, tempered with the deficiencies in how the challenge was conducted. 

MĀORI LAND LAW – ACQUISITION OF ANCESTRAL LAND – ALIENATION – DURESS – UNDUE INFLUENCE – UNCONSCIONABLE BARGAIN – FIDUCIARY DUTY – PUBLIC WORKS ACT 1928 – IRON AND STEEL INDUSTRY ACT 1959 – TREATY OF WAITANGI NEGOTIATIONS – LEGITIMATE EXPECTATION

RESULT:  The application for leave to file an amended notice of appeal is granted.  The appeal is dismissed.  There is no order as to costs.

BACKGROUND

Ngāti Te Ata’s ancestral land relevant to the appeal lies on the Āwhitu Peninsula at Te‑Pūaha‑o‑Waikato, the mouth of the Waikato River.  Maioro lies at the southern end of the Āwhitu Peninsula and on the northern bank of the mouth of the Waikato River. 

This proceeding concerns long-standing grievances of Ngāti Te Ata against the Crown, arising from the acquisition and confiscation of land in the shadow of the Waikato War that broke out in July 1863, the Crown’s subsequent exercise of powers over that land and the ongoing ironsand mining.  There is a particular concern relating to four blocks of land known as Te Papawhero, Te Kuo, Waiaraponia and Tangitanginga (the four wāhi tapu areas) located within Maioro.

In November 1864, the Crown purchased the North and South Blocks of the Āwhitu Peninsula, including Maioro, from Ngāti Te Ata.  The transaction was documented in a deed which we call the Waiuku Deed, executed on 2 November 1864.  The Waiuku Deed excluded a number of wāhi tapu, including the four which are in issue in these proceedings, and also provided that various lands (the habitation reserves) would be granted back to members of Ngāti Te Ata by way of Crown grants.  One month after the execution of the Waiuku Deed, and against the backdrop of the Waikato War, the Crown confiscated land in a purported exercise of the powers granted under the New Zealand Settlements Act.

Confiscation meant Ngāti Te Ata’s title was extinguished.  Crown grants for the habitation reserves were later issued to named members of Ngāti Te Ata who were considered “loyal”, as appears to have been contemplated by the Waiuku Deed itself.  Notably, the wāhi tapu were excluded from the Waiuku Deed, but among the lands confiscated under the New Zealand Settlements Act.  Crown grants were ultimately made in respect of the wāhi tapu, initially in October 1865, but subsequently those grants were cancelled, and new grants were issued on 18 February 1878.  The new grants were made to named members of Ngāti Te Ata subject to restrictions on alienation.  These restrictions were “from sale and mortgage, and from lease without the consent of the Governor”.

In the early to mid-20th century, the Crown began work on the Waikato North Head Sand Dune Project, which involved stabilising encroaching sand dunes and reforestation.  In 1939, Te Papawhero was taken under the Public Works Act 1928 and compensation was subsequently paid.  In 1957, Te Papawhero was declared to be Crown land subject to the Land Act 1948.  It was later set apart for state forest purposes.  Planting also commenced on the other three wāhi tapu in the 1940s, but without their acquisition.  This error was discovered, and in 1959 the three wāhi tapu were taken under the Public Works Act for state forest purposes.  After inquires from Dame Ngāneko Minhinnick in 1971, compensation was paid in 1972.

In 1966, all four wāhi tapu were set aside for ironsands mining purposes under the Iron and Steel Industry Act 1959.  A heads of agreement was signed between the Crown and New Zealand Steel (NZ Steel), under which the Crown granted NZ Steel a licence with an 100‑year term, permitting it to mine land including the four wāhi tapu.  The mining rights granted under the licence have since been exercised as the foundation of the ongoing steel manufacturing activities of NZ Steel at Glenbrook.

In 1983, Dame Ngāneko lodged a claim on behalf of the Huakina Development Trust with the Waitangi Tribunal concerning issues relating to the Manukau Harbour, but also taking issue with an earlier decision to grant water rights to NZ Steel in respect of the proposed Glenbrook extension.  In its report on the Manukau claim (Wai 8) issued in July 1985, the Waitangi Tribunal recommended that negotiations for a settlement of the claims in respect of the compulsory acquisition of the land be continued.  There was also a recommendation that mining operations be “renewed and renegotiated” to protect Māori land and sacred sites.  The Cabinet resolved to support these recommendations.

Following the enactment of the State-Owned Enterprises Act 1986, Dame Ngāneko lodged a claim (Wai 31) in the Waitangi Tribunal claiming the iwi would be prejudicially affected if the wāhi tapu areas were transferred to a state‑owned enterprise (subsequently amended to include the entire Waiuku State Forest).  In 1988, the claim was amended to cover the entire Waiuku State Forest.  This claim remains unresolved in the Waitangi Tribunal.  From then, negotiations and discussions took place between the Crown and representatives of Ngāti Te Ata down to June 1990.  On 24 September 1990, the Crown entered into a memorandum of understanding (MOU) with Ngāti Te Ata to the effect that the Crown would remove the four wāhi tapu areas from the ironsands mining licence, and that Ngāti Te Ata would propose conditions under which mining could proceed on the balance of the Maioro land.

On 17 October 1990, NZ Steel commenced an application for judicial review in the High Court against the Minister of Energy.  Interim relief was sought:  the Crown offered an undertaking that the Minister and the Government would not remove the four wāhi tapu areas from the Iron and Steel Industry Act and NZ Steel undertook not to mine within the wāhi tapu areas.  On 12 December 1990, Ngāti Te Ata filed a counterclaim seeking relief against the Minister of Energy and the Attorney‑General for the takings.  A further claim pleaded sought to enforce the MOU.  On 14 December 1990, Ngāti Te Ata counterclaimed against NZ Steel. 

The proceedings were adjourned on the basis of the undertakings exchanged by the parties, and there were various inconclusive settlement discussions in subsequent years, including discussions with a view to settlement of Ngāti Te Ata’s historical te Tiriti o Waitangi | the Treaty of Waitangi claims.  This lengthy process came to an end when, in April 2013, Ngāti Te Ata negotiators rejected a settlement offer made by the Minister for Treaty of Waitangi Negotiations and indicated an intention to commence proceedings against the Crown in the High Court. 

On 19 December 2013, Te Ara Rangatū o te Iwi o Ngāti Te Ata Waiohua Inc and Mr Minhinnick commenced the proceeding which is one of those giving rise to the present appeal.  The High Court trial eventually proceeded on 4 June 2019 and occupying four weeks.  This was over five years after the commencement of the 2013 proceeding and almost 30 years after the 1990 litigation was commenced.  The High Court rejected the various claims advanced on behalf of Ngāti Te Ata by Richard Minhinnick, who now appeals. 

PROCEDURAL ISSUES

Issue one:  Was the Judge correct to not admit the briefs of evidence provided by Dr O’Malley and Professor Boast?

Held:  Yes.  At trial, the plaintiffs did not call Dr O’Malley or Professor Boast, but instead suggested their briefs could be taken as read.  Fitzgerald J held that would have been inappropriate, given they were not available for cross-examination.  As a result, she did not read or take into account their evidence.  The Judge did not err in reaching this conclusion.  Their briefs of evidence had no evidential status.  Evidence in civil proceedings cannot be given in written briefs which are not then read or adopted in the courtroom.  It would also not generally be possible to identify and rely on uncontested parts of the briefs, although the exception to this is the portions of Professor Boast’s evidence cited by the Crown historian, Mr Parker.

Issue two:  What is the status of the 2014 proceedings?

Held:   Trial counsel for the appellant accepted that the live proceeding was the statement of claim in the 2013 proceeding.  This is dispositive of any complaint that the 2014 proceedings were not given adequate consideration. 

Issue three: What is the effect of the Crown’s statement of defence to Ngāti Te Ata’s 1990 claim?

Held:  The appellant cannot rely on the Crown’s claimed admission in respect of the present claim.

AFFIRMATIVE DEFENCES

In relation to the issue of standing, absent some process in which the Court could be satisfied that relief sought would be in accordance with the wishes of everyone potentially affected, it would be wrong in principle for this Court to determine standing when the High Court did not do so. 

In relation to the affirmative defences, the approach taken on appeal is to consider the substantive claims first, before considering the affirmative defences to the extent it is necessary to do so.  As the appeal is dismissed, it is not necessary for this Court to consider these issues. 

SUBSTANTIVE ISSUES – THE WAIUKU DEED AND CONFISCATION

Issue one:  Was the sale under the Waiuku Deed voidable as an unconscionable bargain, or for duress or undue influence?

Is the Waiuku Deed voidable as an unconscionable bargain?

Held:  No.  The assessment of whether the Waiuku Deed was an unconscionable bargain turns on whether Ngāti Te Ata was at a serious disadvantage, such that the bargain was unconscionable.  The evidence available is not consistent with the idea that Ngāti Te Ata were pressured by the context of negotiations and the threat of possible confiscation, nor is there direct evidence establishing the application of illegitimate pressure.  Additionally, no submission was advanced that the Government acquired the land at below a proper value.  There is also nothing on the face of the terms of the Waiuku Deed to suggest it was not freely entered into.  There is no evidence showing that Ngāti Te Ata was in a position of special disadvantage, nor is there evidence that the Crown took advantage of Ngāti Te Ata.  The vendors signed the Waiuku Did because they saw an advantage for themselves and their iwi, they were familiar with the process of selling land, and they bargained over the price. 

Is the Waiuku Deed voidable for undue influence and duress?

Held:  No.  For the reasons already discussed in respect of the claim of unconscionable bargain, there was no actual undue influence in this case.  There is no direct evidence that Ngāti Te Ata were coerced into the transaction as a result of the “troubled times” in which the Waiuku Deed was executed.  The same can be said about the claim based on duress.  This Court is not in a position to say the Judge erred in finding there was no illegitimate pressure in this case, as it is likely that the members of Ngāti Te Ata who signed the Waiuku Deed did so voluntarily.

Issue two:  Was the confiscation of Ngāti Te Ata’s land under the New Zealand Settlements Act 1863 lawful?

Held:  Yes.  

What is the correct interpretation of the word “rebellion” under the Act?

The text of the New Zealand Settlements Act shows that the group of people barred from compensation under the Act was broadly cast.  No distinction is made between offensive and defensive acts, and the Act was directed at the resistance to Crown authority.  The purpose of the Act supports a wide definition of “rebellion”.  The context of the Act included the Suppression of Rebellion Act 1863.  The conception of rebellion in that Act was the same as in the New Zealand Settlements Act, focussing on the subversion of Crown authority.  Overall, the statutory scheme makes it clear that any engagement in the Waikato War by Māori against the Crown was intended by Parliament to constitute “rebellion”.  The Waikato Raupatu Claims Settlement Act 1995 does not assist in the determination of whether there was a rebellion at the time the New Zealand Settlements Act was enacted.  The lawfulness of what occurred in reliance on the New Zealand Settlements Act and Suppression of Rebellion Act must be determined on the basis of what those Acts said at the time.

Was Ngāti Te Ata, or a “[s]ection” or it, or any “considerable number thereof,”, in rebellion?

It appears in May 1865 the numbers of Ngāti Te Ata were about 140 (including children) and that around 30 to 40 members of Ngāti Te Ata had been engaged in conflict with the Crown since 15 August 1863.  A “considerable number thereof” refers to a considerable number of the relevant social group, whether that be an iwi or hapū.  “A considerable number” must be interpreted as a significant proportion of the members of the relevant iwi or hapū.  The evidence about the numbers of of Ngāti Te Ata who joined the rebellion was such as could reasonably justify a conclusion by the Governor in Council that a considerable number of the iwi had done so.

Is the Crown entitled to justify confiscation on the basis that a “considerable number” of Ngāti Te Ata were in rebellion when the Confiscation wrongly stated that Ngāti Te Ata was an iwi in rebellion?

The evidence shows that Governor Grey was aware of the rigor he was expected to bring to his task under the New Zealand Settlements Act, and demonstrated he would not sign proposed Orders in Council under the Act unless he was satisfied the requirements under s 2 of the New Zealand Settlements Act were met.  The argument thus turns on a drafting omission in the terms of the Order in Council.  It is not appropriate to infer that Governor Grey proceeded on the basis that Ngāti Te Ata as a whole were in rebellion.  To the extent that the omission to refer to “a considerable number thereof” is of any moment, such an omission would have been validated by s 6 of the New Zealand Settlements Acts Amendment Act 1866. 

Even if there was jurisdiction under the New Zealand Settlements Act, did the Governor exceed his statutory power by declaring all the land in the district confiscated?

This question would necessarily be a factual inquiry, and this Court is not in a position to embark on such an inquiry obscured by the passage of time and in the absence of any relevant witnesses.  It is therefore not possible to advance this issue on appeal. 

Issue three: Did the New Zealand Settlements Acts Amendment Act 1866 validate any illegality in the confiscation?

Held:  Yes. 

To the extent necessary, s 6 of the New Zealand Settlement Acts Amendment Act would validate the Order in Council and save it from any consequences of the omission of a reference to “a considerable number thereof”.

Issue four: Did either or both the Waiuku Deed and Confiscation breach a fiduciary duty to consider and protect the interests of Ngāti Te Ata, or any other equitable duty?

Held:  No. 

The evidence does not establish that the terms of the Waiuku Deed were unfair, nor that the Ngāti Te Ata vendors who signed it did so other than voluntarily and as authoritative representatives of the iwi.  The case lacks any of the elements that contributed to the findings of the existence of fiduciary duties in Proprietors of Wakatū v Attorney-General [2017] NZDC 17, [2017] 1 NZLR 423 or Guerin v R [1984] 2 SCR 335.  The Crown never assumed a responsibility towards the vendors, nor was the Crown under any obligation to protect their interests in a way not satisfied by the provision of fair value for the land.  The transaction represented by the Waiuku Deed cannot be characterised as the extinguishment of Māori property rights by less than fair conduct or on less than fair terms.  Therefore, this is also not a case of the kind contemplated by Elias CJ in Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 where there could be a presumption of undue influence.  The Waiuku Deed was thus not procured by the Crown in breach of a fiduciary or other equitable duty owed to Ngāti Te Ata. 

Considering the Waiuku Deed and confiscation together, it is not possible to characterise the Crown’s actions taken for the perceived benefit of the public generally and the majority of Ngati Te Ata as a breach of fiduciary duty on the basis of the relevant authorities which are discussed in the judgment.  The appropriate forum for advancing grievances about the events of the 19th century is the Waitangi Tribunal, which has specific jurisdiction to inquire into claims that Māori have been prejudicially affected by Acts of Parliament passed, orders and proclamations made and policies adopted by the Crown at any time after 6 February 1840.

SUBSTANTIVE ISSUES – THE 1939 AND 1959 TAKINGS AND ISSUE OF THE LICENCE

Issue one:  Were the takings of the wāhi tapu under the Public Works Act 1928 and the inclusion of the wāhi tapu in the mining licence issued under the Iron and Steel Industry Act 1959 unlawful on the basis that the Crown failed to consider the special status of the land?

Held:  No.  The taking of the land was authorised by s 11 of the Public Works Act as land required for a public work (sand dune reclamation and state forest purposes, respectively).  There were procedural requirements set out in s 22 of the Public Works Act, but it is clear from the statutory regime that there was no duty or requirement on the Minister to consult or negotiate with affected landowners in advance of the taking, only a requirement to seek “well-grounded objections” and pay compensation.  These aspects of the statutory scheme tell against Ngāti Te Ata’s claimed mandatory consideration. 

An obligation to consider the special status of the wāhi tapu cannot be read into the Public Works Act in circumstances where the proposed acquisition and works were (as is conceded) for purposes authorised by the statute, the expediency test was able to be satisfied, and no objections were lodged, whether in 1939 in relation to Te Papawhero or in 1959 in relation to the other three wāhi tapu.  While the Minister could have considered such things, the Minister was not obliged to do so.  Likewise, there is no way to read into the Iron and Steel Industry Act a mandatory obligation to take into account the special status of the land.

Issue two:  Were the takings of the wāhi tapu under the Public Works Act 1928 and the inclusion of the wāhi tapu in the mining licence issued under the Iron and Steel Industry Act 1959 a breach of a fiduciary duty owed by the Crown to Ngāti Te Ata to consider and protect their interests in the special circumstances prevailing?

Held:  No.  The principal difficulty with the claim of breach of fiduciary duty is that it seeks to challenge the exercise of statutory powers which it is now conceded were exercised for purposes contemplated by both the Public Works Act and the Iron and Steel Industry Act.  So too, clearly, was the grant of the Licence to mine ironsands within an ironsands area that had been specifically identified for the purpose in the Iron and Steel Industry Act.  Unless it can be said that the statutory powers were subject to a gloss that they would not be exercised in respect of land of special significance to Māori, we can see no basis for the claimed fiduciary duty.

The concept of a fiduciary duty whether of a kind recognised in equity or as a sui generis obligation owed by the Crown to indigenous people as a colonising power, must be based on an assumption of responsibility to act or refrain from acting in a way that reflects the duty.  There was nothing here equivalent to the assumption of responsibility by the Crown which characterised the facts of Proprietors of Wakatū.  The relevant powers under both statutes were to be exercised as government obligations owed to all, the idea that the exercise of such powers could be in breach of a fiduciary duty owed to a small section of the public is problematic.  It does seem extraordinary that the wāhi tapu were included in the Licence, given the history.  Further, successive governments apparently recognised that the wāhi tapu should not have been included in the Licence.  However, the fact that the wāhi tapu were included in the Licence does not mean that there was conduct amounting to an actionable breach of fiduciary duty.

SUBSTANTIVE ISSUES – 1990 COMMITMENTS AND TREATY OF WAITANGI NEGOTIATIONS

Issue one:  Did the Crown’s agreement under the 1990 commitments to return the wāhi tapu to Ngāti Te Ata and remove them from the Licence give rise to binding and enforceable obligations on the Crown?

Held:  No.  The MOU entered into in 1990 did not bind the Crown to return the wāhi tapu to Ngāti Te Ata and remove them from the mining licence.  We see the MOU as representing a summary of the position that had been reached in discussions between Ngāti Te Ata and the Crown at the time it was signed, and their intent as to how issues should be progressed should agreement be reached with all parties (including NZ Steel) on the outstanding matters.  The Crown began to proceed in accordance with the MOU, but that led within a short space of time to the commencement of NZ Steel’s application for review.  The fact that Ngāti Te Ata agreed to the adjournment of NZ Steel’s proceeding, and the fact it took no action to advance its own claim, is inconsistent with any suggestion Ngāti Te Ata thought it had a binding agreement with the Crown. 

Furthermore, that important matters (such as the terms on which mining could proceed outside the wāhi tapu areas) remained unresolved militates against the idea that a binding agreement had been reached.  So also does the fact that when signed by a representative of Ngāti Te Ata, the agreement was returned to the Crown with a letter stating that it had been signed on the understanding that “negotiations continue as soon as possible” and negotiations indeed continued, resulting in a settlement proposal that was different from the terms in the MOU.  There was a sufficient agreement in terms of the exchanges of correspondence in 1991 to show that the parties had moved on from the arrangements set out in the MOU.

Issue two:  Did the Crown breach a legitimate expectation of Ngāti Te Ata that its claims of breach of the Crown’s Treaty of Waitangi obligations would have been fairly addressed by now and not rendered nugatory by Crown action or omission?

Held:  No.  We see no reason in principle why a legitimate expectation could not be established in the context of Treaty of Waitangi settlement negotiations, given a clear promise by the Crown to act in a certain way which has been relied on by the claimant and when there is no good reason for the Crown not to proceed in accordance with its promise.  For the reasons already addressed, we do not think the MOU amounted to such a clear commitment.

The second basis for legitimate expectation rests on the discussions and negotiations that had taken place in the period from 1990 until the Crown withdrew from the negotiations in response to the commencement of this litigation.  We think it is clear that Ngāti Te Ata could properly have a legitimate expectation that it would receive redress for its historical Treaty grievances and that part of the settlement would involve the return of the wāhi tapu to Ngāti Te Ata.  However, we do not think the temporal element (the expectation that the claims would have been “fairly redressed by now”) has been met, given the Crown has been responding to litigation commenced against it and the fact the delays that have occurred in the settlement process are not properly attributable to the actions of the Crown alone. 

COSTS

The respondents do not seek costs and there is no order accordingly.

Motor manslaughter - Appeal against sentence 

The appeal is dismissed. 

The appellant participated in an illegal "boy racer" event. He hit a young woman who was pregnant and who was a spectator at the event. She was injured and her baby died shortly after the event following an emergency caesarean section. The appellant pleaded guilty and was convicted of manslaughter, dangerous driving causing injury and driving while disqualified. He was sentenced to two years and four months' imprisonment. 

He appeals his sentence on the basis that the starting point of four years and three months' imprisonment was too high, a 25 per cent reduction to his sentence should have been allowed for his guilty plea (rather than the 20 per cent given), and a further 25 to 30 per cent reduction should have been made for his youth, background and intellectual deficiencies (rather than the 15 per cent given). 

Was the starting point too high? No.
A starting point of four years' imprisonment was available to the Judge before consideration of the fact that the appellant was a disqualified driver in a vehicle that was not roadworthy and had previous driving offences. The Judge's addition of three months for those matters tempered the uplift she would have otherwise given for personal aggravating factors to avoid double counting. 

Should a greater allowance have been made for the appellant's guilty plea? No.
There were unusual circumstances that properly explained the delay in entering a guilty plea to the manslaughter charge as the Judge accepted. The Judge did not allow the maximum 25 per cent reduction available for a guilty plea because the appellant did not accept responsibility for the charge of dangerous driving causing injury to N at an early time. That charge was reasonably straightforward, did not require expert evidence and was brought six months before the manslaughter charge. While some Judges might have allowed the full 25 per cent reduction to take into account the appellant's communication difficulties (and counsel's concern not to obtain instructions until a communication assistant was appointed), it was open to the Judge to allow a 20 per cent reduction evaluating all the circumstances of the plea, and doing so did not lead to an end sentence that was manifestly excessive. 

Should a greater allowance have been made for youth, background and intellectual deficiencies? No.
The Judge was correct to consider these factors together. There was also a degree of overlap between these factors and the 10 per cent reduction to the sentence allowed for the appellant's rehabilitative efforts, which was arguably generous. 

Criminal Law – Murder – Minimum period of imprisonment 

After harassing and threatening his 21-year-old victim over a period of around two years, Kanwarpal Singh, armed with a large knife, waited for her as she returned home from work.  She alighted from her bus and started to walk along an alleyway when Mr Singh accosted her and commenced a frenzied attack, stabbing her some 12 times.  She died at the scene. 

Mr Singh was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years in accordance with the presumption created by s 104(1) of the Sentencing Act 2002.   He appealed that sentence on the grounds the MPI was manifestly excessive. 

The application for an extension of time is granted.  The application to adduce further evidence is granted. The appeal against sentence is dismissed. 


Was the Judge correct to find that any of the circumstances in s 104 applied?  Held: Yes. 

The murder involved calculated or lengthy planning (s 104(1)(b)).  Even the further evidence filed for the purposes of supporting Mr Singh’s appeal confirmed the lengthy period over which Mr Singh had been ruminating over the victim, threatening her both directly and by way of the comments he made to others. 
The murder was committed with a high level of brutality and callousness (s 104(1)(e)).  Mr Singh committed a brazen and frenzied attack in public which involved a high level of violence.  Mr Singh’s actions leading up to the day and on the day was evidence of a hardened state of mind and level of callousness. 

The victim was particularly vulnerable given Mr Singh’s previous threats and physical tracking of her movements, together with her location in an alleyway where those who heard her screams were unable to reach her in time to stop the attack (s 104(1)(g)). 

Further, while taken individually Mr Singh’s offending could be seen to be at the lower end of each of the three factors, the Court considered that the particular circumstances of this case constitute exceptional circumstances for the purpose of s 104(1)(i).  It is the stalking behaviour and Mr Singh’s attitude towards the victim which makes this offending particularly chilling and which, in our view, means that the purpose behind the MPI of 17 years is engaged.  The legislative policy is to ensure a 17-year MPI for the most serious murder cases.


Was the notional period of imprisonment of 17 and a half years excessive?  Held: No. 

When the purposes and principles of sentencing are considered, the most relevant being accountability and denunciation as identified by the Judge, the notional minimum period of 17 and a half years (before the one-year guilty plea reduction) was within range. 

Were Mr Singh’s personal circumstances appropriately recognised?  Held:  Yes. 

The Court rejected the submission that Mr Singh’s exposure to violence in the home within a conservative culture predisposed him to react as he did.  Further, the principles of deterrence, denunciation and community protection will usually be more powerfully engaged where the offending is particularly serious.  In the context of murder cases, the need to give effect to the legislative policy of the Sentencing Act further constrains the courts’ ability to give discounts for background factors. 

The further evidence placed before the Court did not identify any contributory mental health factors which could be considered to diminish Mr Singh’s moral culpability.  Indeed, that evidence identified factors emphasising the need for accountability and denunciation. 


Was the imposition of the 17-year MPI manifestly unjust?  Held:  No. 

The Judge was correct in his view that the minimum 17-year term was not manifestly unjust.  The s 104 qualifying factors are of significance, Mr Singh’s culpability sits well within the range of cases caught by s 104 and his personal mitigating circumstances are weak. 

Conviction and sentence appeal - evidence - dismissal of charges - unreasonable verdicts - judicial directions - manifestly excessive 

Application to adduce further evidence declined. Appeal against conviction dismissed. Appeal against sentence dismissed. 

Mr Jago was found guilty of historical sexual offending against two complainants. He appeals his conviction and sentence. 

Issue one: should the further evidence be admitted? 
Held: no. It is not fresh or cogent. 

Issue two: should the March 1995 charges have been dismissed/are there unreasonable verdicts? 
Held: no. The deficiencies in the criticised evidence were clearly before the jury, accompanied by comprehensive judicial directions, and it was open to them to conclude they were outweighed by other evidence. The relevant ages and date range of the charges were similarly made clear. 

Issue three: were the Judge's directions on delay adequate? 
Held: yes. The judge summed up comprehensively; covered reliability issues; was entitled to give ss 122 and 127 warnings; was not required to use the words "real care"; and reminded the jury of the "golden opportunity" point after calling them back. 

Issue four: were the Judge's directions on propensity adequate? 
Held: yes. They were comprehensive, tailored to the evidence and the case, and met the requirements of Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145. 

Issue five: was the sentence manifestly excessive? 
Held: no. While stern, the starting point was open to the Judge in the circumstances and accords with case law. The previous good character discount was generous, and it was open for the Judge to consider imprisonment was the least restrictive sentence appropriate. 

Appeal — local government — contract — interpretation — implied terms

Appeal dismissed.

The New Zealand Retail Property Group (NZRPG) worked with Waitakere City Council (and later Auckland Council and Auckland Transport, to develop a new Westgate Town Centre (the Town Centre), to be located across what would be Fred Taylor Drive from the original Westgate Shopping Centre (Original Westgate). Numerous contracts and other documents were concluded or otherwise shared between the parties involved. NZRPG considered that Auckland Council and Auckland Transport took a different approach in the development to the original vision. They sued Auckland Council and Auckland Transport for breach of contract on several grounds. The High Court held that none of the contractual breaches alleged were made out. NZRPG appeals.

Issue 1: was Fred Taylor Drive required to be widened to integrate Original Westgate with the Town Centre?
Held: no. The parties agreed from the outset their shared vision did not create binding contractual obligations, absent more specific agreements.   Neither the Infrastructure Funding Agreement {IFA) or Cost Sharing Agreement 1 (CSA 1) imposed an obligation to consult with NZRPG over the design and construction of the widening of Fred Taylor Drive. The quality standards in the Demarcation Schedule to CSA 1 did not create contractual obligations: respectively, they comprised a standard that was not objectively identifiable or specific so as to be relied on; a general set of guidelines; and a statement of general vision. A reasonable person having all the background knowledge reasonably available to the parties in the situation they were in at the time of the contract would not have considered there was a contractually binding specification of quality standards; and would have expected such standards to be explicitly specified.

Issue 2: was there an implied term to construct Northside Drive East?
Held: no. Because the contractual obligation regarding Fred Taylor Drive has been rejected, the related argument regarding Northside Drive East also fails. The IFA was clear there was no such agreement, consistent with CSA 1 and the Demarcation Schedule. The cases NZRPG rely on can be distinguished.

Issue 3: was Maki Street South required to be upgraded with Maki Street North or within a reasonable time?
Held: no. There was no agreement about what the upgrade of Maki Street South would involve in CSA 1. Works Development Agreement 3 (WDA 3) was explicit about that and there being no agreement as to timing. Without a contractual obligation specifying the work to be done, no time obligation can be implied. The case law about implying a term to act within a reasonable time is not activated because the nature and extent of the upgrade had to be agreed first. If some timing requirement could be implied before May 2017, it was not breached given the timeline of designs and the associated costings.

Issue 4: did the bus interchange have to be constructed in Zone 2?
Held: no. The text of WDA 3 indicates there were areas of agreement and non-agreement. There was no contractual obligation about the bus interchange's location: Auckland Transport was not a party to WDA 3; the more natural reading of the relevant clause is that agreement on location (and grant of the easement) were "subject to final agreement"; WDA 3 as a whole, and its context, suggest the location was not being contractually committed to; and none of the parties could implement the understanding of the location without further agreements with Auckland Transport. Even if there were some contractual obligation, NZRPG has not demonstrated the Judge was wrong that there was no breach of contract.