IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CIV-2024-419-346
[2025] NZHC 1438	

UNDER	the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules	
IN THE MATTER	of an application for judicial review of decisions under the Resource Management Act 1991	
BETWEEN	ANTHONY PRIVETT REED and REED
TRUSTEE 2018 LIMITED (as trustees of the EAGLE TRUST)
Applicants	
AND	WAIKATO DISTRICT COUNCIL
First Respondent

OCEANIA HELICOPTERS PUKEKOHE LIMITED
Second Respondent

RUBY & RATA LIMITED
Third Respondent	

Hearing:	3 June 2025	
Appearances:	D Bigio KC for Applicants
K Ridling for First Respondent
S Ryan and S Thompson for Second and Third Respondents	
Judgment:	4 June 2025	

JUDGMENT OF LANG J
[interlocutory issues]

This judgment was delivered by Justice Lang
On 4 June 2025 at 12.00 noon Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:…………………………

REED v WAIKATO DISTRICT COUNCIL [2025] NZHC 1438 [4 June 2025]

[1]	In this proceeding the applicants, the trustees of the Eagle Trust (the trustees), seek judicial review of decisions made by the Waikato District Council. The decisions related to an application for a land use consent by the second respondent, Oceania Helicopters Pukekohe Ltd (Oceania). Oceania sought consent to build a helicopter depot and commence a commercial helicopter operation on land owned by the third respondent, Ruby & Rata Ltd (Ruby). Ruby’s land adjoins a property owned by the Trust.

[2]	The Council granted the consent on a non-notified basis. The trustees contend the Council erred in numerous respects in deciding that the application did not need to be notified and erred in granting it. It therefore seeks orders quashing both decisions.

[3]	The Council, Oceania and Ruby oppose the application for judicial review. Oceania and Ruby have also filed a counterclaim against the trustees seeking to enforce an encumbrance that was registered over the land now owned by the trustees before they acquired it. Oceania and Ruby contend that the encumbrance requires the owners of the trustees’ land to support Oceania’s application for consent. They say the trustees acted in breach of the encumbrance by filing the application for judicial review. They maintain the trustees will continue to breach it if they pursue the application further. Oceania and Ruby seek declaratory relief as to the effect of the encumbrance, together with a permanent injunction prohibiting the trustees from taking further steps in the judicial review proceeding. In addition, they seek liquidated damages calculated in accordance with a formula prescribed by the encumbrance.

[4]	The proceeding is still at a comparatively early stage. However, a dispute has arisen as to how it should proceed from here. The trustees wish to be able to progress their application for judicial review expeditiously. They are concerned that the issues raised by the counterclaim may prevent this from occurring. They therefore seek an order severing the trial of the counterclaim until after the Court has determined the application for judicial review.

[5]	Oceania and Ruby seek an order that their counterclaim be tried before the application for judicial review. They say the purpose of the counterclaim is to ensure

the trustees are prevented from continuing to breach the encumbrance. This objective will be thwarted if the Court allows the application for judicial review to be heard first.

Decision

[6]	In one respect it may have been preferable for Oceania and Ruby to have commenced a separate proceeding to enforce the encumbrance because the Council would not have needed to be a party to such a proceeding. However, I see nothing wrong in principle with the approach they have taken. As Chambers J noted in Franks v Waikato Ethnic Council Inc, there is nothing to prevent causes of action based in private law being pleaded in the same proceeding as an application for judicial review.1

[7]	In this proceeding, Ruby is endeavouring to enforce its private law rights under the encumbrance by preventing the trustees from exercising their public law right to challenge Oceania’s resource consent. It will argue that the encumbrance means that the owners of the trustees’ land have waived any ability to exercise their public law rights to oppose the development of Ruby’s land as a commercial helicopter depot.2

[8]	Rule 5.58(2) of the High Court Rules 2016 permits the Court to direct that a counterclaim be tried separately to the causes of action pleaded in a statement of claim if it appears to the Court that this can be done “more fairly or conveniently”.

[9]	I am satisfied it is appropriate to make an order under r 5.58 in the present case because I consider the argument for Oceania and Ruby must prevail. The land now owned by the trustees was already subject to the encumbrance when they acquired it. The fact that it was registered against the title to the land means they are deemed to have had notice of it. Further, they are bound by it as the present owners of the land.

[10]	If the effect of the encumbrance is as Ruby and Oceania suggest, the trustees will have breached it by issuing the present proceeding. The remedy would be some form of order preventing the trustees from progressing the application for judicial review further. In such a case it is plainly appropriate for the enforcement of the

1	Franks v Waikato Ethnic Council Inc (2001) 15 PRNZ 396 (HC) at [17].
2	As was held could be done in South Pacific Tyres NZ Ltd v Powerland (NZ) Ltd [2009] NZRMA 58 at [58].

encumbrance to take priority. The arguments advanced by Mr Bigio KC on the trustees’ behalf as to the need for judicial review proceedings to be heard expeditiously carry little weight in the present context.

[11]	Further, the counterclaim raises issues that relate largely to the interpretation of the encumbrance. These are legal issues and should be able to be determined expeditiously. If the counterclaim succeeds, the application for judicial review will effectively be at an end. If it does not, the bulk of the grounds upon which Ruby and Oceania presently oppose that application will be rendered unarguable. For these reasons, too, the counterclaim should be heard first.

[12]	One of the principal concerns for the trustees is the potential for delay that will arise if Oceania and Ruby subsequently appeal against an adverse decision on their counterclaim. I accept that they cannot be denied their right to appeal. However, the same issue would arise for Oceania and Ruby if the Court directed the application for judicial review to be heard first. Oceania and Ruby should know, however, that they cannot assume the Court will allow the application for judicial review to be deferred further so they can exercise their rights of appeal if they fail at first instance. In that event, the Court is unlikely to further defer the hearing of the application for judicial review to enable them to exercise their rights of appeal.

[13]	Ruby accepts that its claim for damages has the potential to raise difficult factual and legal issues because it is likely to involve consideration of the principles identified by the Supreme Court in 127 Hobson Street Ltd v Honey Bees Preschool Ltd.3 The claim for damages will also necessarily fail if the Court finds in favour of the trustees regarding the validity and effect of the encumbrance. The claim for damages is therefore to await determination of that issue.

Directions

[14]	I make a direction under r 5.58(2) that the counterclaim is to be tried separately from the application for judicial review. I direct further that the counterclaim is to be

3	127 Hobson Street Ltd v Honey Bees Preschool Ltd [2020 NZSC 53, [2020] 1 NZLR 179.

tried first to the extent that it seeks to enforce compliance with the encumbrance. The claim for damages will only proceed if the encumbrance is held to be enforceable.

[15]	The Registrar at Hamilton is to allocate the first stage of the counterclaim a fixture of one day’s duration on the first available date in July or August 2025. The fixture is likely to be allocated at short notice because it will almost inevitably result from an existing fixture resolving or being vacated for some other reason. The Council obviously has no interest in the issues to be determined at this fixture and is excused from participating in it.

[16]	To ensure the fixture can be allocated at short notice, I make the following pre-hearing directions:

(a)	Counsel are to file and serve memoranda advising the Registry of the dates on which they are not available during July and August 2015 no later than 5 pm on Thursday 5 June 2025.

(b)	Oceania and Ruby are to file and serve any further evidence and submissions no later than 17 June 2015.

(c)	The trustees are to file and serve any additional evidence and submissions no later than 1 July 2025.

Costs

[17]	Oceania and Ruby have been the successful parties on the present applications and are entitled to a single award of costs and disbursements in their favour. Costs are to be calculated on a category 2B basis.

Lang J
Solicitors/counsel:
Langford Law, Wellington/D Bigio KC/P Senior, Auckland Waikato District Council, Ngāruawahia
Graham & Co/S Ryan, Barrister, Auckland