TIROA E AND TE HAPE B TRUSTS V CHIEF EXECUTIVE OF LAND INFORMATION HC WN CIV-2012-485-101

TIROA E AND TE HAPE B TRUSTS V CHIEF EXECUTIVE OF LAND INFORMATION HC WN CIV-2012-485-101

The Ministers misdirected themselves by assessing s17(2)(a) economic benefits against the status quo before‑and‑after rather than by asking what would likely occur without the overseas investment ('with and without' counterfactual); business acumen need not be narrowly industry specific; plaintiffs had sufficient interest to have standing; consequence: consent set aside and matter remitted for reconsideration by the Ministers.

Citation
openlaw-bee9a7e2_eed7_47f9_ae35_d28efb847a45.pdf
Parties
First Plaintiffs: TIROA E AND TE HAPE B TRUSTS; Second Plaintiff: BAYTOWN INVESTMENTS LIMITED; First Defendant: CHIEF EXECUTIVE OF LAND INFORMATION; Second Defendant: MINISTER OF FINANCE; Third Defendant: MINISTER OF LAND INFORMATION; Fourth Defendant: MILK NEW ZEALAND HOLDINGS LIMITED; Intervenors: BRENDON JAMES GIBSON AND MICHAEL PETER STIASSNEY
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 February 2012
Procedural Posture
Judicial Review (overseas Investment Act 2005) / Judgment
Outcome
Application for judicial review granted; Ministers' consent set aside; matter remitted to Ministers for reconsideration.
Legal Topics
Standing, Judicial Review, Overseas Investment Consent, S17 Benefits Assessment, Business Experience Criterion
Administrative Law Property Law Statutory Interpretation Environmental Law Standing Judicial Review Overseas Investment Consent S17 Benefits Assessment +1 more

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Parties

TIROA E AND TE HAPE B TRUSTS

First Plaintiffs

BAYTOWN INVESTMENTS LIMITED

Second Plaintiff

CHIEF EXECUTIVE OF LAND INFORMATION

First Defendant

MINISTER OF FINANCE

Second Defendant

MINISTER OF LAND INFORMATION

Third Defendant

MILK NEW ZEALAND HOLDINGS LIMITED

Fourth Defendant

BRENDON JAMES GIBSON AND MICHAEL PETER STIASSNEY

Intervenors

Procedural Posture

Judicial Review (overseas Investment Act 2005) / Judgment

Legal Issues

  1. 1 Whether individuals who control the overseas purchaser must have industry‑specific (dairy) experience or whether general business acumen suffices
  2. 2 What counterfactual the Ministers must use when assessing s17 economic benefits (status quo before/after v likely without the investment)
  3. 3 Whether the plaintiffs have standing to seek judicial review of the Ministers' consent

Ratio Decidendi

The Ministers misdirected themselves by assessing s17(2)(a) economic benefits against the status quo before‑and‑after rather than by asking what would likely occur without the overseas investment ('with and without' counterfactual); business acumen need not be narrowly industry specific; plaintiffs had sufficient interest to have standing; consequence: consent set aside and matter remitted for reconsideration by the Ministers.

Court Disposition

Application for judicial review granted; Ministers' consent set aside; matter remitted to Ministers for reconsideration.

Orders

  • Ministers' consent to the overseas investment by Milk New Zealand Holdings Limited in the Crafar farms is set aside
  • Ministers are directed to reconsider Milk NZ's application in accordance with the Court's reasons (including use of a 'with and without' counterfactual for s17(2)(a) economic factors)