TE RŪNANGA O NGĀI TAHU v ATTORNEY-GENERAL [2022] NZHC 1643

TE RŪNANGA O NGĀI TAHU v ATTORNEY-GENERAL [2022] NZHC 1643 [12 July 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-000328[2022] NZHC 1643BETWEEN TE RŪNANGA O NGĀI TAHUPlaintiffAND ATTORNEY-GENERALDefendantHearing: 23 May 2022Appearances: A R Galbraith QC, R E Brown and G F Dawson for PlaintiffM Heron QC, C Tyson and D Hunt for DefendantJudgment: 12 July 2022JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 12 July 2022 at 4.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Table of ContentsPara NoBackground [6]High Court Rules 2016 [30]Clause 10.5 [34]The Crown's submissions [44]High Court Rule 5.49(3) [45]High Court Rule 15.1 [51]What are the issues? [55]My analysisHas Ngai Tahu's claim been resolved by accord and satisfaction ormerger in judgment?[56]Is Ngai Tahu's claim dependent upon a finding by the arbitrator thatthe Criwb breahed the relativity mechanism?[83]Is Ngai Tahu's claim time-barred by s 11(1) of the Limitation Act 2010? [86]Is Ngai Tahu precluded from making a claim in respect of the WaikatoRiver Co-Management Claims Redress Amounts by the Deed of Settlementin relation to the Relativity Mechanism Dispute dated 22 May 2015?[97]Is Ngai Tahu precluded from making its claim insofar as it relates to theRotoehu West write-down and school site losses because of the absence ofa finding of the arbitrator that those amounts are CRAs?Is Ngai Tahu's claim otherwise an abuse of process?[99][102]A final remark [105]Result [106][1] Te Rūnunga o Ngāi Tahu (Ngāi Tahu) and the Crown settled certain historicalclaims under the Treaty of Waitangi. The Deed of Settlement contained a mechanismto maintain the relativity of Ngāi Tahu's settlement to the total value of redressprovided in settlement of all historical Treaty claims (the relativity mechanism).[2] Ngāi Tahu brings this proceeding seeking interest on amounts that, followingarbitration between the parties, have been found to be owing under the relativitymechanism. Ngāi Tahu's claim for interest is advanced as damages for breach ofcontract or at statutory rates under the Judicature Act 1908 and the Interest on MoneyClaims Act 2016.[3] The Crown considers Ngāi Tahu is not entitled to interest on any basis.[4] The application before me relates only to Ngāi Tahu's first cause of action forinterest as damages. The Crown seeks an order dismissing the first cause of actionunder r 5.49(3) of the High Court Rules 2016 on the basis that the Court has nojurisdiction to hear it. Alternatively, it asks the Court to strike out the first cause ofaction under r 15.1 (1) as disclosing no reasonably arguable cause of action, or as anabuse of process.[5] Ngāi Tahu argues the claim for interest as damages is clearly within the Court'sjurisdiction, was preserved by the arbitration agreement between the parties, is wellarguable, and is not an abuse of process.Background[6] Ngāi Tahu registered a claim with the Waitangi Tribunal in 1986 as Wai 27,and the claim was investigated at hearings before the Tribunal from 1987 to 1989. On1 February 1991, the Waitangi Tribunal issued its report, but made few formalrecommendations because Ngāi Tahu and the Crown had requested the Tribunal toissue findings on the principal issues but leave it to the parties to negotiate a settlement.[7] Ngāi Tahu and the Crown signed a Deed of Settlement on 21 November 1997.The Ngāi Tahu settlement, and an earlier settlement between the Crown and Waikato-Tainui, were the first substantial Treaty settlements. It was unfamiliar territory for allinvolved.[8] Ngāi Tahu considered its settlement was insufficient as the redress representeda very small percentage of the value of lands lost in its rohe. Practical considerationsinfluenced its decision to settle, such as the affordability and palatability of thesettlement from a public and political perspective. Further, the settlement wasnegotiated against the backdrop of a "fiscal envelope" by which the Crown proposedto limit the total value of all Treaty settlements to $1 billion (in 1994 dollars). Whilethe Crown abandoned the fiscal envelope policy, Ngāi Tahu's position is that itcontinued to influence negotiations. In these circumstances, and crucial to NgāiTahu's acceptance of the Crown's settlement offer, a series of "bolt-ons" wereintroduced which included a relativity mechanism, as had been included in Waikato-Tainui's settlement.[9] The relativity mechanism is contained in section 18 of the Deed of Settlement.It is complex. Broadly, the relativity mechanism provides for the Crown to makefurther five yearly payments to Ngāi Tahu (if Ngāi Tahu makes a claim for suchpayments) in the event the aggregate value of redress paid or otherwise transferred bythe Crown in respect of historical Treaty claims exceeds $1 billion (in 1994 dollars).1The relativity mechanism is intended to maintain the relative value of Ngāi Tahu'ssettlement as a fixed percentage (approximately 16.1 per cent) of the real value of allTreaty settlements until 2044.[10] The relativity mechanism does not capture all items of settlement redress orvalue transferred by the Crown to iwi in settlement of Treaty claims. It sets outevaluative principles for determining what value should be counted towards theaggregate value of Treaty settlements against which relativity is to be maintained.[11] The key concept under the relativity mechanism is the "Claim RedressAmount" (CRA). Under cl 18.2 of the Deed of Settlement, the Crown is required1 The deed of settlement defines "Historical Claim" as one made against the Crown on the basis ofthe principles of the Treaty of Waitangi which arises from any act or omission of the Crown thatoccurred on or before 21 September 1992.annually to provide a statement setting out its calculation of the Present Value of theTotal Redress Amount. The Total Redress Amount is the sum of all CRAs. It is arunning total of the redress provided by the Crown to settle claims based on historicalbreaches of the Treaty of Waitangi calculated in 1994 dollars.[12] The calculation of the Total Redress Amount is required to be made on or about30 September in each year. Ngāi Tahu is required to advise the Crown, within40 business days of receiving the Crown's statement, if it disputes the Crown'scalculation. If it does not dispute the calculation, it will be deemed to have acceptedit.[13] Clauses 18.3 and 18.4 deal with the process by which Ngāi Tahu may make aclaim for further redress. Clause 18.4 relevantly provides:If [Ngāi Tahu] makes a claim pursuant to clause 18.3, and the Present Valueof the Total Redress Amount exceeds $1,000 million, then the Crown shallpay to [Ngāi Tahu] such further sum as is necessary to ensure that the sum ofthe Real Value of the Ngāi Tahu Redress Amount, and the Real Value of anyAdditional Ngāi Tahu Redress Amounts is the Agreed Relativity Percentageof the Real Value of the Total Redress Amount The sum to be paid shall befurther adjusted for CPI movements from 31 December to the end of thequarter immediately before the payment is made.[14] Clause 18.5 provides that Ngāi Tahu may make a claim under cl 18.3 on morethan one occasion but no more than every five years or after the end of 2044.[15] Clause 18.6.1 provides that if Ngāi Tahu makes a claim the Crown will, within20 business days, provide to Ngāi Tahu a statement indicating whether any amount ispayable under cl 18.4 and, if so, how much that amount is.[16] Under cl 18.6.2, if the Crown's statement indicates that any amount is payableto Ngāi Tahu, the Crown must pay that amount within the later of 40 business daysafter the date of the Crown's statement or if an appropriation is required, as soon aspracticable after the appropriation is made, but in any event not more than six monthsfrom the date of the Crown's statement.[17] Clause 18.7 deals with disputes. It provides that if Ngāi Tahu makes a claimand disputes the amount that is payable by the Crown, the parties will enter into adispute resolution process, but if they cannot agree on a method of resolution of thedispute, either party may exercise its legal rights against the other. Further, cl 18.7.2states that in the event of a dispute:the Crown will pay the amount not in dispute as required under clause 18.6.2and, if it is finally determined that a further amount is payable, will pay suchamount within 10 Business Days after the date on which the determination ismade or, if a further appropriation is required, as soon as practicable after theappropriation is made but, in any event, not more than 6 months after the dateon which the determination is made. There is no agreement as to whetherinterest is or is not payable.(emphasis added)[18] Ngāi Tahu monitors a range of sources to determine Crown spending onsettlement of historical Treaty claims. It has in each year, in accordance with therelativity mechanism, provided a dispute letter setting out the grounds upon which itdisputes the calculations in the Crown's relativity mechanism statement.[19] In October 2012, the Crown advised Ngāi Tahu and Waikato-Tainui that therelativity mechanisms were triggered and provided its calculation of the amount thenpayable to the iwi parties. Ngāi Tahu considered this was not the full amount payableand on 28 November 2012 it made its first claim under the relativity mechanism. Itwas agreed the Crown would pay the amount it had calculated as being payable (whichit did on 19 December 2012) and the parties would, consistent with cl 18.7, enter intoa dispute resolution process in order to determine any further amount payable.[20] In discussions between the parties it was agreed that arbitration would be thebest way forward, but the terms of reference to the arbitrator were subject to disputeand negotiation. Ultimately, an arbitration agreement was entered into on 8 August2013. The arbitration agreement was between Ngāi Tahu, Waikato-Tainui and theCrown. Sir Andrew Tipping was appointed arbitrator.[21] One of the contentious issues was the question of interest. The Crown'sposition was that the arbitrator was to have no power to award interest. That wasdescribed in correspondence by Ngāi Tahu as a "deal breaker". Ultimately it wasagreed the arbitration agreement would record the parties were unable to agree on theissue of interest, and their positions would be preserved.[22] The arbitration agreement recorded the dispute between the parties as:2The [Crown] notified the Claimants that its obligation to make an additionalpayment to each of the Claimants had been triggered in the 2011/2012 year.The Claimants made claims, in terms of the relativity mechanisms, and theCrown has made payments to the Claimants on the basis of the [Crown's]calculations. However, differences have arisen between the parties as to thenature and extent of the [Crown's] obligation under the relativity mechanismsas at 30 June 2012.[23] The parties were to file pleadings,3 a staged process was to be followed,4 andthere were to be no appeals from the arbitrator's awards.5 The arbitrator would makeone or more interim awards in relation to each stage of the hearing and the awardswere to include reasons.6 The arbitrator had no power to award interest unless agreed.7[24] For the purpose of determining each claim the arbitrator was to determinewhether an amount in issue:8(i) is or is not a Claim Redress Amount;(ii) if it is a Claim Redress Amount, whether it comes within anyof the exclusions contained in the relativity mechanismprovisions;(iii) if it is a Claim Redress Amount and is not covered by one ofthe exclusions, whether it should or should not have been soincluded, in whole or in part, in the calculation of the TotalRedress Amount as at 30 June 2012; or(iv) has already been so included; and(v) if it should have been so included, in whole or in part, thefinancial year (ending 30 June) in which it should have beenincluded.[25] In light of the arbitrator's determinations, the Crown was to calculate the realvalue of the Total Redress Amount up to and including 30 June 2012 and to also2 Recital C.3 Clause 2.4 Clause 7.1(a).5 Clause 6.1(d).6 Clause 10.1.7 Clause 10.5.8 Clause 10.2.calculate any additional amount payable to the iwi parties in terms of the relativitymechanisms.9 Any dispute as to the calculation was to be referred to the arbitrator.10[26] Most relevant of all in the present context is cl 10.5, which provides as follows:The relativity mechanisms each record that the parties were unable to agreethe question of interest at the time of the Deeds of Settlement. The partiesremain unable to agree the question of interest and wish to preserve theirrespective positions in this regard. To this end, the parties agree that, in theevent that any further amount is payable in light of a determination by theArbitrator, the parties will at that time discuss whether the question of interest(including whether any interest should be paid on any further amount payableand, if so, the amount of interest to be paid) should be referred to the Arbitratoror the High Court for determination. Failing agreement between the parties,it is acknowledged that the Claimants may seek to have the question of interestdetermined by the High Court. If it is agreed that interest should be paid onany additional amount payable to the Claimants, or it is determined by theArbitrator or the High Court to be payable, the parties agree that such interestwill be payable only for the period commencing on 20 December 2012 (beingthe day after the day on which the payments referred to in Recital C were madeby the [Crown] to the Claimants) and ending on the day before the day thatpayment of the relevant additional amount was made by the [Crown] to theClaimants (both dates inclusive).[27] On 9 August 2013, Ngāi Tahu (and Waikato-Tainui) filed a statement of claimin the arbitration. They pleaded over 280 individual settlement redress items the iwisaid should be considered CRAs. In addition, they pleaded breaches of various dutiesand included claims for damages and interest. The Crown objected to the pleading onthe basis that the arbitrator's remedial powers were limited to determining whether adisputed item was or was not a CRA (as per cl 10.2 of the arbitration agreement) andthe arbitrator had no power to make declarations as to breach of contract, or to awarddamages or interest. Following the Crown's objection, the iwi parties filed anamended statement of claim which removed the damages and interest claims.[28] The arbitration hearings commenced in December 2013. To date, the arbitratorhas issued six awards determining whether particular disputed items are or are notCRAs. Further, in light of the awards, and the clarification of the scope of therelativity mechanisms, the iwi parties have withdrawn some claims and the Crown has9 Clause 10.3.10 Clause 10.4.accepted some amounts as CRAs. Where the arbitrator has found an item is a CRA,the Crown has paid further amounts, adjusted for CPI movements.[29] The interest claims that are the subject of this proceeding arise from thearbitrator's third and fifth awards. In the third award of 26 February 2018, thearbitrator considered whether two disputed items were CRAs. The first concernedfunding the Crown paid annually to support Waikato-Tainui and other Waikato Riveriwi to engage in co-management arrangements for the Waikato River. The other matterconcerned the transfer of a farm property to resolve a boundary dispute in relation toPouakani claims. In the fifth award of 21 May 2020, the arbitrator found that transfervalues of certain Crown forest land were to be brought into account as CRAs but twofurther items were not.High Court Rules 2016[30] Rule 5.49 relevantly provides:Appearance and objection to jurisdiction(1) A defendant who objects to the jurisdiction of the court to hear anddetermine the proceeding may, within the time allowed for filing astatement of defence and instead of so doing, file and serve anappearance stating the defendant's objection and the grounds for it.(2) The filing and serving of an appearance does not operate as asubmission to the jurisdiction of the court.(3) A defendant who has filed an appearance may apply to the court todismiss the proceeding on the ground that the court has no jurisdictionto hear and determine it.(4) Revoked.(5) At any time after an appearance has been filed, the plaintiff may applyto the court by interlocutory application to set aside the appearance.(6) The court hearing an application under subclause (3) or (5) must(a) if it is satisfied that it has no jurisdiction to hear and determinethe proceeding, dismiss the proceeding; and(b) if it does not dismiss the proceeding under paragraph (a), setaside the appearance.(8) The court, in exercising its powers under this rule, may do so on anyterms and conditions the court thinks just and, in particular, on settingaside the appearance it may extend the time within which thedefendant may file and serve a statement of defence and may give anydirections that appear necessary regarding any further steps in theproceeding.[31] Rule 15.1(1) provides:Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.[32] In Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd theSupreme Court held r 5.49 provided an unqualified right to challenge the jurisdictionof a court to hear a proceeding.11 Under r 5.49 the onus is always on the defendant toestablish the Court does not have jurisdiction.12 The Supreme Court also recognisedthere is clearly an overlap between rr 5.49 and 15.1 and it will often be convenient toapply under both of them.13 Here, there is a good deal of overlap in the grounds reliedupon by the Crown under both rules.[33] The principles to be applied under r 15.1 are well-established. The Court willexercise its power to strike out a pleading sparingly and only in clear cases. Further,the Court has traditionally been wary of the potential inefficiency of applications tostrike out part of a pleading but that may be justified if it could substantially reducethe burden of trial or preparing for trial.1411 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013]1 NZLR 804.12 Robert Osborne (ed) McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR5.49.14]citing Huang v Huang [2021] NZHC 2902 at [45].13 At [34].14 McGechan on Procedure, above n 12, at [HR15.1.08] citing Whitman v Airways Corp of NZ Ltd(1994) 8 PRNZ 155.Clause 10.5[34] Fundamentally, this application turns upon cl 10.5 of the arbitration agreementwhich, Ngāi Tahu says, preserved its right to claim interest and to have its claimdetermined by the Court.[35] Ngāi Tahu filed affidavits of Rakihia Tahumatā Tau and Christopher John Ford,both of whom hold senior positions with Ngāi Tahu. Their evidence concerned thenegotiations for Ngāi Tahu's Deed of Settlement (particularly as it related to thequestion of interest and the relativity clause) and the arbitration agreement, thearbitration process so far, and the manner of investment by Ngāi Tahu of the Treatysettlement funds for the benefit of Ngāi Tahu whanui.[36] The Crown curtly dismisses the affidavits of Messrs Tau and Ford as hearsayand inadmissible evidence of Ngāi Tahu's subjective intent. I do not agree. It appearsto me that, consistent with the objective approach to be taken to contractualinterpretation in New Zealand, as set out in Firm PI Ltd v Zurich Australian InsuranceLtd15 and Bathurst Resources Ltd v L & M Coal Holdings Ltd,16 the affidavits containmuch relevant and admissible evidence which the Court may have regard to ininterpreting cl 10.5 of the arbitration agreement.[37] The issue of whether the Crown would pay interest on amounts payable underthe relativity mechanism has always been contentious. Ngāi Tahu's position has beenthat interest should be payable; the Crown's position that it should not. Under theDeed of Settlement, the matter was left on the basis that there was no agreementwhether interest "is or is not payable".17 Clearly it was anticipated the matter mayhave to be addressed at a later time.[38] Not surprisingly then, the question of interest was raised again when disputesarose as to amounts payable under the relativity mechanism. The correspondencebetween the parties and counsel indicates it was foreshadowed a claim for interest15 Firm PI Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60]-[61].16 Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696.17 Clause 18.7.would be based on the loss of opportunity for Ngāi Tahu to invest additional funds thatmay be found to have been payable.[39] Under cl 18.7 of the relativity mechanism, the parties had to resolve theirdisputes by negotiation, agree to resolve them by an alternative dispute resolutionprocess, or, if agreement on a method of resolution could not be agreed, either partycould exercise their legal remedies, which would include referral to the High Court.Ngāi Tahu made known that the Crown's requirement that an arbitrator was to haveno power to award interest was likely to prevent agreement on the terms of anarbitration agreement. The solution reached, recorded in clause 10.5, was to preserveeach party's position and again park the question of interest until such time as it wasknown whether any further amounts were payable under the relativity mechanism.[40] The parties recognised in cl 10.5 that the question of interest would only ariseif from the arbitration process further amounts were found payable over and abovewhat the Crown had already agreed to pay under the relativity mechanism. Whetherthat was the case would depend upon the determination of questions the partiesreferred to the arbitrator, primarily whether disputed amounts should have beenincluded by the Crown as CRAs in its calculation of the Total Redress Amount as at30 June 2012. This is reflected in cl 10.5 when it states:To this end the parties agree that, in the event that any further amount ispayable in light of a determination by the Arbitrator, the parties will at thattime discuss whether the question of interest (including whether any interestshould be paid on any further amount payable and, if so, the amount of interestto be paid) should be referred to the Arbitrator or the High Court fordetermination.[41] The arbitration agreement contemplated that the parties might agree to refer tothe arbitrator the question whether interest was payable on further amounts. It wasagreed, however, that if the parties could not agree to refer the matter to the arbitrator,then the iwi parties had the right to go to the High Court. This is reflected in the wordsin cl 10.5:Failing agreement between the parties, it is acknowledged that the Claimantsmay seek to have the question of interest determined by the High Court.[42] The iwi parties' right to go to the High Court clearly had to be founded uponfurther amounts being payable "in light of a determination by the Arbitrator", but thatdid not require the arbitrator to make a finding as to what that further amount was.That was not a matter the arbitrator was to determine under clause 10.2. Clause 10.5contemplated a determination by the arbitrator "in light" of which a further amountwas payable before the iwi parties and the Crown would again engage on the questionof interest. The decision by the iwi parties to file an amended statement of claim inthe arbitration process, removing claims for damages and interest, must be viewed inthis context. Further, the agreement to have the question of interest determined by theHigh Court must have contemplated a substantive rather than jurisdictionaldetermination by the High Court.[43] Finally, the Crown negotiated to include within cl 10.5 a limit on the period forwhich the iwi parties could claim interest. Interest on any additional amount payable,whether determined by agreement, arbitration or the High Court, was to be payableonly for a period commencing 20 December 2012, being the date on which the Crownhad made payment based on its calculation of its obligation under the relativitymechanism, and ending on the day before the day that payment of the additionalamount was made. This also reflects an understanding between the parties that theclaim for interest arose out of the payment by the Crown of amounts under therelativity mechanism that should have been paid at an earlier date.The Crown's submissions[44] In summary, the Crown argues:(a) The parties agreed to arbitrate, and their disputes have been disposedof by way of accord and satisfaction or merger in judgment.(b) The damages claim cannot succeed as there is no finding of thearbitrator that the Crown breached the terms of the Deed of Settlement.(c) A claim for damages is time-barred by s 11 (1) of the Limitation Act2010.(d) Insofar as the first cause of action concerns amounts referred to as theRotoehu West write-downs and school site losses, there has been nofinding of the arbitrator to support the claim.(e) Insofar as the first cause of action concerns amounts referred to as theWaikato River Co-Management CRAs, it has been "substantivelysettled" by a Deed of Settlement in relation to Relativity MechanismDispute dated 22 May 2015.High Court Rule 5.49(3)[45] The Crown submits the Court's jurisdiction to hear and determine Ngāi Tahu'sfirst cause of action is precluded by contract. It contends the parties agreed to arbitratetheir disputes under the relativity mechanism for an agreed remedy, and this agreementprecludes recourse to the courts. The agreed remedy is said to be: a determination of whether an item is, or is not, a CRA and subsequentfurther payment by the Crown.[46] The Crown notes the courts have emphasised the importance of respectingparties' contractual autonomy, and an election to arbitrate rather than litigate shouldbe upheld, which is what the Crown asks here.18[47] It contends the legal effect of a final award in an arbitration is to resolve thedispute by means of an accord and satisfaction of the parties; the accord being theagreement to submit the dispute to arbitration and the satisfaction being the making ofthe award in fulfilment of the agreement. The causes of action then merge in the finalaward and cannot subsequently be relitigated for a different remedy.[48] The Crown argues that Ngāi Tahu's first cause of action is not in any relevantsense a claim for interest but a claim seeking an "alternative substantive remedy" tothat provided in the arbitration agreement, exposing the Crown to litigation byinstalments, and it would fatally undermine the integrity and finality of the arbitration18 Arbitration Act 1996, art 8(1) of sch 1; and Carr v Gallaway Cook Allan [2014] NZSC 75, [2014]1 NZLR 792 at [32].if the iwi parties could also go to Court to ask for damages for the same disputespreviously resolved by the arbitrator. It says such an approach flouts common sense.[49] The Crown does not accept that cl 10.5 of the arbitration agreement preservesa claim for interest or confers jurisdiction on the High Court to award interest asdamages. Several arguments are advanced in relation to this. First, it says to viewcl 10.5 as preserving a right to claim interest would defeat the purpose of arbitrating,and the Court should be slow to read in any exception to the exhaustive nature of anarbitration. Second, cl 10.5 does not mention damages for breach of contract. Third,cl 10.5 cannot encompass damages because the arbitrator has no power to determineliability for breach of contract to provide a jurisdictional foundation for a claim indamages. The arbitrator's remedial powers are declaratory only. The Crown submitsthe awards at issue illustrate this point because the arbitrator made no finding therewas a breach of any clause of the relativity mechanism to provide a basis for a damagesclaim. It submits that, "self-evidently", there would need to be such a finding for NgāiTahu to come to the High Court for damages, and the absence of such a finding is"fatal" because the claim seeks to springboard off the arbitral findings.[50] The Crown also submits the notion of contractual damages for breach are inaptin the context of the relativity mechanism. It says the mechanism sets out an iterativeprocess for determining the amount to be paid to Ngāi Tahu. First, it requires NgāiTahu to make a claim following the Crown's annual calculation. It then requires theCrown to pay its calculation and for the parties to enter into a process to determinewhether any further amounts are payable. The Crown's obligation to pay furtheramounts, it contends, does not arise until determined through the dispute resolutionprocess as, until that point, "no party could say what that further amount is or wouldbe".High Court Rule 15.1[51] Relying on r 15.1, the Crown contends Ngāi Tahu's first cause of action is anabuse of process. It relies on the arguments advanced under r 5.49(3) that thearbitrator's awards do not involve findings of breach of contract and that the rightsand obligations at issue have merged in the awards issued to date.[52] A further argument is that a damages claim is time-barred under s 11 of theLimitation Act 2010. The Crown argues Ngāi Tahu's claim is a money claim and hasbeen filed outside the six-year limitation period from the date the relevant act oromission upon which the claim is based occurred, which was 19 December 2012.19The Crown contends that cl 10.5 does not by its terms purport to disapply theLimitation Act or suspend its operation for damages.[53] The next argument advanced is that the claim ought to be struck out in respectto amounts relating to the Rotoehu West write-downs and school site losses. As theseamounts were conceded by the Crown to be CRAs without a determination by thearbitrator, it is said they cannot provide the basis for a damages claim.[54] Finally, the Crown argues the claim is an abuse of process as it relates to theWaikato River Co-Management funding as cls 5 and 6 of a Deed of Settlementbetween Ngāi Tahu and the Crown dated 22 May 2015 is said to preclude any claimsor future claims Ngāi Tahu has under the relativity mechanism in respect of the 2009Waikato River settlement. The Crown acknowledges this is not a complete answer tothe claim but says its effect would be significant as the majority of the amount soughtby way of damages is attributable to the Waikato River Co-Management funding.What are the issues?[55] I consider the issues before me are as follows:(a) Has Ngāi Tahu's claim been resolved by accord and satisfaction ormerger in judgment?(b) Is Ngāi Tahu's claim dependent upon a finding by the arbitrator that theCrown breached the relativity mechanism?(c) Is Ngāi Tahu's claim time-barred by s 11 (1) of the Limitation Act2010?19 As noted earlier, this was the date that the Crown paid the undisputed amount to Ngāi Tahu, forwhich see [18] above.(d) Is Ngāi Tahu precluded from making its claim insofar as it relates to theRotoehu West write-downs and school site losses because of theabsence of a finding of the arbitrator that those amounts are CRAs?(e) Is Ngāi Tahu precluded from making a claim in respect of the WaikatoRiver Co-Management funding by the Deed of Settlement in relation toRelativity Mechanism Dispute dated 22 May 2015?(f) Is Ngāi Tahu's claim otherwise an abuse of process as being contraryto the finality of arbitration between the parties and broader publicpolicy interests in the finality of litigation?My analysisHas Ngāi Tahu's claim been resolved by accord and satisfaction or merger injudgment?[56] Ngāi Tahu is not seeking to make a general claim for contractual damages. Itsclaim is limited to interest compensating it for deprivation of the use of money it wasentitled to under the relativity mechanism and which should have been paid in 2012.It measures this by what could have been earned had the money been received on timeand invested for the benefit of Ngāi Tahu whanui, after making full allowance for thefact Crown payments are subject to CPI adjustments.[57] I did not understand the Crown to argue that as a matter of law a claim forinterest as damages is untenable.20 The availability of such a claim was recognisedby the House of Lords in Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v InlandRevenue Commissioners.21 In the High Court of Australia in Hungerfords v Walker,Brennan and Deane JJ described interest as damages as:2220 The Interest on Money Claims Act 2016 recognises a claim for interest as damages at s 26(1)where it provides the Act does not limit or affect the ability of any person to bring a claim, or tocontinue any existing claim, in any court for interest at common law or in equity.21 Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners [2007]UKHL 34, [2008] AC 561.22 Hungerfords v Walker (1989) 171 CLR 125 at 152.an actual award of damages which represents compensation for a wrongfullycaused loss of the use of money and which is assessed wholly or partly byreference to the interest which would have been earned by safe investment ofthe money or which was paid upon borrowings which otherwise would havebeen unnecessary or retired.[58] In Clarkson v Whangamata Metal Supplies Ltd, the Court of Appeal said thephrase "interest as damages", although commonplace, is somewhat misleading as: 23What is being claimed is compensation for the deprivation of the use ofmoney. That value of that deprivation is quantified by the interest that couldhave been earned by investing the money, or avoided by retiring debt. Theloss is interest-related, but this is only a factual matter rather than a legalclassification of the claim.[59] It is a curious aspect of this case that the Crown argues this Court has nojurisdiction in respect of Ngāi Tahu's first cause of action but makes no such assertionin respect of the second and third causes of action claiming statutory interest. Iunderstand a factor in this approach is the cost and resources of defending the firstcause of action which are likely to be substantial as compared to the claims forstatutory interest. However, in a letter dated 21 July 2021 from Crown Law to NgāiTahu's solicitors, Bell Gully, Crown Law questioned the legal basis for any of thethree causes of action relied upon by Ngāi Tahu. It asserted that Ngāi Tahu's firstcause of action for damages was not a claim for interest at all in terms of cl 10.5. Itreferred to the second and third causes of action as "largely claims for interest properon amounts determined to be CRA" 24 and that:We agree the interest proper on amounts determined to be CRA (rather thandamages) is within the scope of the matters your clients signalled they mightseek to test in the High Court in terms of clause 10.5.However, at present, we cannot see the basis upon which your clients can relyon those chosen statutory provisions as those provisions empower the HighCourt to award interest on proceedings before the High Court, not on arbitralawards.[60] As Mr Galbraith submitted, given the position that is now taken that the Courthas no jurisdiction to award interest at all, it is difficult to see what the Crown23 Clarkson v Whangamata Metal Supplies Ltd [2007] NZCA 590; [2008] 3 NZLR 31 at [23].24 I understand the term "interest proper" is intended to refer to interest on a sum determined to bepayable otherwise than as damages.considers cl 10.5 entitles Ngāi Tahu to do. However, the parties negotiated carefullyover the terms of cl 10.5 and plainly considered it did have work to do.[61] Related to this, the Crown negotiated to limit the period for which any claimfor interest could relate. In an email dated 31 July 2013, the Crown's counsel wroteto counsel for the iwi parties in relation to cl 10.5 and said:We have clarified in the drafting that interest is only at issue for the periodfollowing when your clients allege a short fall in the payment arose. Thisreflects earlier discussions between counsel. We note that in previouscorrespondence on this issue you have referred to interest being sought from30 June 2012. However, we assume you mean/would accept that interest issought from the point the payment was due but not made (that is, 20 December2012, being the day after payment of the undisputed amount). Accordingly,see our mark ups to clause 10.5 (attached)Assuming the above is acceptable, the Solicitor-General is ready to sign theagreement for the Crown. Let me know once your clients are ready to proceedand we will arrange for the agreement to be executed and will send it throughto you.[62] The Crown's stance gives rise to an issue of interpretation as to the meaning ofthe word "interest" in cl 10.5. The proper approach to contractual interpretation is anobjective one. The Supreme Court noted in Firm PI Ltd v Zurich Australian InsuranceLtd that the aim is to:25... ascertain "the meaning which the document would convey to a reasonableperson having all the background knowledge which would have beenreasonably available to the parties in the situation in which they were at thetime of the contract." This objective meaning is taken to be that which theparties intended. While there is no conceptual limit on what can be regardedas "background", it has to be background that a reasonable person wouldregard as relevant. Accordingly, the context provided by the contract as awhole and any relevant background informs meaning.(footnotes omitted).[63] Ngāi Tahu's position is that the word "interest" in cl 10.5 is used in its sense aspayment for the loss of opportunity to invest the additional funds it should havereceived. I consider that is plainly arguable. There is nothing in the terms of cl 10.5which suggests to me that some other more restrictive meaning was intended. Further,25 Firm PI Ltd v Zurich Australian Insurance Ltd, above n 15, at [60] citing Investors CompensationScheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL) at 912 per Lord Hoffman.the correspondence that passed between the parties and counsel in the negotiation ofcl 10.5 foreshadowed the claim that is being made in the first cause of action.[64] In an email of 6 July 2013 between Ngāi Tahu's counsel, Mr Galbraith QC, andMr Heron QC for the Crown, Mr Galbraith wrote:For my part I still see a distinction between the calculation which is donewithin the settlement context, which is on a CPI basis, and (assuming iwisucceed in part of their claim) interest which iwi would claim to be payablefor the period after June 2012. That is a payment for a loss of opportunity toinvest the additional funds which they should have received. It is not aquestion of the Crown being good for the money. It may be that interest mightonly be awarded from the due date for payment of the June 2012 calculatedamount but that should be for the arbitrator to decide.[65] Mr Heron QC responded on 7 July and said:I find it hard to see how loss of opportunity can be valued in any other waythan interest, which again can be separated into time value of money and riskpremium. Here iwi will receive compensation for receiving a payment later(in CPI terms), but because it is a situation of zero risk (and they are certainnot to suffer a loss), the argument for additional interest is in my view notstrong.[66] Importantly, cl 10.5 was to "preserve" the parties' respective positions inrespect to interest. If, as the Crown contends, a claim for interest as damages is notwithin the jurisdiction of the Court, Ngāi Tahu's position has not been preserved.Rather, Ngāi Tahu must be taken to have given up any right to claim interest atcommon law which it could have pursued in the High Court along with all other claimsit has made in the arbitration.[67] It makes no difference, in my view, that cl 10.5 does not mention interest asdamages for breach of contract as the clause makes no mention of any other basis uponwhich interest might be claimed either.[68] This takes me to the Crown's contention that the arbitrator's third and fifthawards finally resolved and disposed of the relevant disputes by way of accord andsatisfaction or merger in judgment, and that a claim for interest is thereby precluded.Neither submission has merit in my view.[69] The authors of Burrows, Finn and Todd on the Law of Contract in New Zealandadopt this definition of accord and satisfaction:26Accord and satisfaction is the purchase of a release from an obligation,whether arising under contract or tort, by means of any valuable consideration,not being the actual performance of the obligation itself. The accord is theagreement by which the obligation is discharged. The satisfaction is theconsideration which makes the agreement operative.[70] The Crown submits the parties have agreed to arbitrate their disputes under therelativity mechanism for an agreed remedy being a determination of whether an itemis or is not a CRA, and subsequent further payments by the Crown which precludesfurther recourse to the courts. It argues that the legal effect of a "final award" in anarbitration is to resolve the dispute by means of accord and satisfaction of the parties.I do not accept this argument.[71] The error in the Crown's approach is that Ngāi Tahu did not agree, expresslyor by implication, that its right to claim interest would be discharged by a decision ofthe arbitrator. The question of interest was not submitted to the arbitrator, but ratherwas expressly reserved for later determination, including, if necessary, by the HighCourt. As Ngāi Tahu correctly submits, the arbitrator's remedial powers do notrepresent an agreed remedy in respect of the issue of interest, and there is no accordand satisfaction in respect of that issue.[72] Nor does the doctrine of merger apply. The doctrine is described in SpencerBower and Handley Res Judicata as follows:27Any cause of action for which judgment is given by an English judicialtribunal merges in that judgment: transit in rem judicatam. The cause ofaction ceases to exist and cannot support a second action. This explainscertain features of the doctrine; for instance, the rules, now abolished bystatute, that a foreign judgment did not bar recovery on the cause of action,and that an English judgment against one or more persons jointly liable incontract or tort barred an action against any others. It also explains theprinciple that a promise to pay interest on a debt ceases to be effective oncejudgment is given for the debt.26 Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in NewZealand (7th ed, LexisNexis, Wellington, 2022) at 768 citing British Russian Gazette Ltd vAssociated Newspapers Ltd [1933] 2 KB 616 at 643-644.27 K R Handley Spencer Bower and Handley Res Judicata (5th ed, Butterworths, London, 2019) at280.[73] In Zukowski v Royal Insurance Company of Canada, the Court of Appeal ofAlberta identified the three principles that justify the doctrine of merger as: 28(1) the general interest of the community in the termination of disputesbetween litigants, and(2) the protection of individual litigants from oppressive proceedings inthe form of successive claims on the same cause of action; and(3) that any cause of action that results in a final judgment of a competentjudicial tribunal is merged in the judgment and disappears as anindependent entity as a judgment is regarded as of a higher nature thanany cause of action.[74] The authors of Spencer Bower and Handley note that there are six requirementsto establish the plea, which are:29(a) the former judgment can in law support the plea;(b) it was in the terms alleged;(c) the tribunal had jurisdiction;(d) the former judgment was final and remains in force;(e) the claimant is suing on the same cause of action; and(f) the parties are the same, or their privies.[75] Here, the Crown's plea of merger cannot succeed because the awards of thearbitrator upon which it relies cannot in law support the plea and were not final.[76] It has been held that declaratory judgments will not support a plea of merger.In Zavarco PLC v Nasir, Sir David Richards, in delivering the judgment of the Courtof Appeal, said:30[37] A declaration is a quite different remedy from judgment for a debt ordamages. It makes sense to speak of a merger of a claim for a debt or damages28 Zukowski v Royal Insurance Company of Canada (2000) ABCA 165 at [14].29 At [19.03] and p.281.30 Zavarco PLC v Nasir [2021] EWCA Civ 1217.into a judgment for the payment of a specified sum as debt or damages, socreating "an obligation of a higher nature". The lesser right is merged into thehigher. The same cannot be said of a purely declaratory judgment, which itselfimposes no obligation but only confirms the obligation which already exists.As Birss J aptly put it, "I do not see how a declaration which declares to existthe right which the claimant already had before judgment was given could besaid to extinguish that pre-existing right. It does the opposite.[38] It has been stated in all editions of Spencer Bower that the doctrine ofmerger does not apply to a declaration: [N]o authority is cited for thatproposition, but none can be when, so far as known, it has never previouslybeen contended that it does apply to a declaration. It is, however, consistentwith the underlying rationale of the doctrine. Moreover, it is hard, indeed Iwould say impossible, to think of a sound reason why a declaration of legalright or obligation should automatically bar a subsequent claim forenforceable relief.[77] The arbitrator's third and fifth awards make declarations as to whether amountsin issue were CRAs and should have been included by the Crown in the relativitymechanism calculations as at 30 June 2012. The awards do not deal with theconsequences of the Crown failing to do so or determine any amount that is payableto the iwi parties.[78] Further, to support the plea, the former judgment must be complete and finaland nothing further must be needed to be done judicially to render it effective andenforceable.31 Here, the arbitration agreement provides that in light of the arbitrator'sdetermination, it is for the Crown to calculate any additional amount payable in termsof the relativity mechanism.32 Any dispute may be referred back to the arbitrator.Plainly, the arbitrator's determination as to whether any amount is, or is not, a CRAwas not to be the final word on the parties' entitlement under the relativity mechanism.[79] Finally, there is also authority that the doctrine of merger will not operate toextinguish a cause of action where the only parties who have an interest in the causeof action have agreed a judgment will not have that effect. This is because the policyconsiderations underlying the doctrine are not violated by parties making such anagreement.31 K R Handley Spencer Bower and Handley Res Judicata, above n 27, at [20.08].32 At cl 10.3.[80] In Zukowski v Royal Insurance Company of Canada, the issue before the Courtof Appeal of Alberta was whether the doctrine of merger could be avoided by apreservation agreement between the parties which was incorporated in a consentjudgment. The Court held: 33 the doctrine of merger of a cause of action in a judgment does not operateto extinguish a plaintiff's cause of action where (i) the only parties with aninterest in the cause of action have agreed that the judgment will not have thateffect, thereby waiving operation of the doctrine as between them, (ii) the rightof the plaintiff to pursue further recovery against the same defendant ordefendants is clearly preserved in the judgment, (iii) the rights of third partiesare not directly affected, and (iv) preservation of the right to pursue furtherclaims is not an inappropriate or pointless fragmentation of the cause ofaction."[81] It is arguable that these requirements are fulfilled in this case and that cl 10.5was in the nature of a preservation agreement whereby the parties put to one side thequestion of interest until such time as it was determined whether further amounts werepayable under the relativity mechanism. In the event that further amounts werepayable, the iwi parties had the right to have the question of interest determined by theHigh Court. Clause 10.5 would serve no purpose if the iwi parties' rights merged inthe arbitral awards.[82] Accordingly, the Crown has not satisfied me Ngāi Tahu's claim has beenresolved by accord and satisfaction or merger in judgment.Is Ngāi Tahu's claim dependent upon a finding by the arbitrator that the Crownbreached the relativity mechanism?[83] The Crown's argument is that the relativity mechanism provides a staggeredpayment obligation. Under it, the Crown is required to pay the amount it calculates isowing, but any further disputed amounts are not payable until after a determination bythe arbitrator. On this basis, the Crown has not breached the relativity mechanism byfailing to include in the amounts payable to the iwi parties, sums which were ultimatelyfound to be CRAs following arbitration. I do not accept this submission.33 Zukowski v Royal Insurance Company of Canada (2000) ABCA 165 at [14].[84] I agree with Ngāi Tahu that the Crown's principal obligation must be tocalculate and pay the objectively-determined correct amounts under cls 18.2 and 18.4to ensure relativity is maintained. To consider otherwise would be to accept that theCrown's obligation is to pay only what it subjectively considers is owing, whichcannot be correct. The interpretation I prefer is consistent with the arbitrationagreement which requires the arbitrator to determine if a CRA should or should nothave been so included in whole or in part in the calculation of the Total RedressAmount as at 30 June 2012.34[85] Related to this, I also do not accept the Crown's position there is no finding inthe arbitration awards to support a claim the Crown breached any clause of therelativity mechanism. I was not referred to any express finding by the arbitrator thatthe Crown had breached the relativity mechanism but this is hardly surprising giventhe way the issues to be determined by the arbitrator were framed. However, if thearbitrator makes, as he did, a determination an amount should have been included asa CRA in the calculation of the Total Redress Amount, that is tantamount to a findingthat the Crown has committed a breach of contract in calculating that amount.Is Ngāi Tahu's claim time-barred by s 11 (1) of the Limitation Act 2010?[86] Section 11 provides:Defence to money claim filed after applicable period(1) It is a defence to a money claim if the defendant proves that the dateon which the claim is filed is at least 6 years after the date of the actor omission on which the claim is based (the claim's primaryperiod).(2) However, subsection (3) applies to a money claim instead ofsubsection (1) (whether or not a defence to the claim has been raisedor established under subsection (1) if(a) the claimant has late knowledge of the claim, and so the claimhas a late knowledge date (see section 14); and(b) the claim is made after its primary period.(3) It is a defence to a money claim to which this subsection applies if thedefendant proves that the date on which the claim is filed is at least34 Cl 10.2(iii).(a) 3 years after the late knowledge date (the claim's lateknowledge period); or(b) 15 years after the date of the act or omission on which the claimis based (the claim's longstop period).[87] The Crown argues the damages claim is time-barred because it is a moneyclaim filed outside the six-year limitation period from the date that Ngāi Tahu says therelevant act or omission occurred, being 19 December 2012.[88] Ngāi Tahu submits that accepting the Crown's position would lead to anabsurdity because:(a) The limitation issue would arise only if the Crown did not agree to referthe issue of interest to arbitration and the forum in which the issue ofinterest is resolved should not dictate the parties' substantive rights.(b) If further amounts are payable as a result of future awards, the iwiparties would not be able to claim interest on the late payment for thosefurther amounts in the High Court, in contradiction to cl 10.5.[89] Ngāi Tahu argues the claim is not time-barred for three reasons:(a) The relativity mechanism arbitration commenced on 8 August 2013,tolling the limitation period for all relief that might be awarded in thatproceeding, including interest for the purposes of s 11 of the LimitationAct.(b) The claim for interest is ancillary to the relativity mechanismarbitration and that, given what was envisaged by cl 10.5, the Courtshould order that relief may be granted in respect of the claim forinterest, as the arbitration, towards which the claim for interest ismerely ancillary, was commenced in time.3535 Limitation Act, ss4 and 50.(c) The parties effectively contracted out of the limitation period becausethey entered into an agreement that was inconsistent with the limitationdefence the Crown now seeks to advance.36[90] In my view it is the third of these arguments that is strongest and plainlyarguable. It relates to s 41 of the Limitation Act 2010, which provides:Contracting out of defencesNo provision of this Act makes ineffective, or prevents theenforcement of, an agreement that conflicts or is inconsistent with, orthat modifies or prevents some or all of the operation or effects of, adefence under this Act.[91] No authorities were quoted to me involving the application of s 41.37[92] The Crown argues that cl 10.5 does not purport to disapply the Limitation Actand to interpret it in that manner involves adding words to the clause. It also submitsthat if the iwi parties had intended cl 10.5 to have that effect they could have beenexpected to have made that clear. For these reasons, it says time began to run againstNgāi Tahu for the bringing of any claim for interest from 19 December 2012. I do notaccept these submissions.[93] Section 41 does not require that parties expressly disapply the Limitation Act.It may suffice that an agreement conflicts or is inconsistent with a defence under theLimitation Act being relied upon. As noted by the Law Commission, there is no reasonwhy parties should not be able to effectively agree that a limitation defence will notbe taken for a particular period or at all.38[94] Here, by cl 10.5, the parties have "preserved" for Ngāi Tahu the right to pursuea claim for interest through the High Court and, also, deferred the question of interestuntil "any further amount is payable in light of a determination by the arbitrator". TheCrown thereby agreed that Ngāi Tahu could seek to have the question of interestdetermined in a separate forum once a further amount was determined to be payable.36 Section 41.37 The only authority that I can find amongst my own research is Lee v Mangapapa B2 Incorporation(2017) 140 Waikato Maniapoto MB 83 (140 WMN 83).38 Law Commission Limitation Defences in Civil Proceedings (NZLC R6, 1988) at [266].It must follow, in my view, that time does not begin to run against Ngāi Tahu from19 December 2012 as the Crown submits.[95] Ngāi Tahu's right to claim interest would plainly not have been preserved ifbefore the date of a relevant determination by the arbitrator, its claim can be defeatedby a limitation defence. That is what the Crown now effectively contends in respectto the fifth award of the arbitrator which is dated 21 May 2020. Further, such anapproach would mean that any claim for interest based on awards yet to be made wouldalso be time-barred. Had that been contemplated, it is a reasonable inference that NgāiTahu would never have agreed to arbitrate with the Crown and would have taken itsclaims under the relativity mechanism (along with its claim to interest) to the HighCourt immediately.[96] For those reasons, the Crown has failed to satisfy me that Ngāi Tahu's claim istime-barred by s 11 (1) of the Limitation Act 2010.Is Ngāi Tahu precluded from making a claim in respect of the Waikato River Co-Management Claims Redress Amounts by the Deed of Settlement in relation to theRelativity Mechanism Dispute dated 22 May 2015?[97] I note that even if the Crown is correct about this matter, it is not a completeanswer to Ngāi Tahu's first cause of action. In any event, there really is insufficientevidence upon which I could find for the Crown on this issue. On the very limitedevidence there is, it is arguable Ngāi Tahu's claim is not defeated, even in part, by theterms of the 22 May 2015 Deed of Settlement.[98] The Deed settled claims in respect of river settlements with the exception of"reserved claims". Insofar as it relates to the river settlements, I understand NgāiTahu's claim for interest concerns only the reserved claims not settled by the Deed.The ability of Ngāi Tahu to claim interest was preserved by cl 10.5 and not precludedby the river settlement deed.Is Ngāi Tahu precluded from making its claim insofar as it relates to the Rotoehu Westwrite-down and school site losses because of the absence of a finding of the arbitratorthat those amounts are CRAs?[99] Again, this is not a complete answer to Ngāi Tahu's claim. But these amountsappear, again on the limited evidence before me, to fall within cl 10.5 as being sumspayable "in light of a determination by the arbitrator".[100] The sums in issue were conceded by the Crown before, during or following thefifth stage of the arbitration hearing. There is a clear connection between thearbitration and the Crown's acceptance the amounts in question were CRAs. This isidentified in correspondence from Te Arawhiti to Ngāi Tahu dated 12 May 2020 and7 July 2020. For instance, in the 7 July 2020 letter, the Chief Executive Officer of TeArawhiti refers to the transfer of school sites and states, "In line with the guidance ofthe arbitrator, we have made adjustments to treat these losses as non-gifted claimsredress amounts."[101] It is arguable in such circumstances, that the wording of cl 10.5 leaves it opento Ngāi Tahu to advance claims for interest on sums the Crown concedes during thearbitration process should have been included as CRAs, thus obviating the need forthe arbitrator to make a formal determination in respect to them.Is Ngai Tahu's claim otherwise an abuse of process?[102] The Crown objects that Ngāi Tahu is conducting litigation by instalmentswhich would defeat the purpose of arbitrating and undermine the finality of thearbitration. I do not accept that submission.[103] In short, I do not consider it an abuse for Ngāi Tahu to proceed with a claim inthe manner the parties agreed is the most appropriate. The claim for interest asdamages does not impact on the integrity or finality of the arbitration or expose theCrown to litigation by instalments in an illegitimate or unfair manner. It was agreedby the parties that the question of interest would be addressed only once "[a] furtheramount is payable in light of a determination by the arbitrator". Ngāi Tahu is notseeking to revisit any question that was resolved by the arbitrator. Further, cl 10.5contemplates the question of interest being resolved by way of a sequential process.[104] I find support for my view in the fact the Crown could have avoided the issueof this proceeding by agreeing to refer the question of interest to the arbitrator, whichwas a course contemplated by the arbitration agreement. It would be wrong that NgāiTahu's claim could be defeated, not substantively, but only because of the Crown'spreference as to the forum in which it should be heard.A final remark[105] It might be considered odd that given the context of the dispute there is no priorreference in this judgment to Treaty principles. The reason for that is that counsel didnot frame their arguments in that manner. Mr Galbraith did submit that Treatyprinciples are a relevant consideration in the interpretation of cl 10.5, and I should besceptical of an interpretation that runs counter to those principles but did not developthe argument. While it appeared technical arguments advanced by the Crownchallenging Ngāi Tahu's ability to have its claim substantively determined before theHigh Court do not reflect the basis upon which the parties proceeded as active Treatypartners in the negotiation of the arbitration agreement and particularly cl 10.5, I amnot required to and do not make a judgment about that. Had I been in doubt as to theresult of the application I may well have called upon counsel to address me further onthis aspect.Result[106] The Crown's application is dismissed.[107] Ngāi Tahu is entitled to costs. Counsel did not specifically address me on costs,but I would expect that agreement will be reached. In the event of any dispute, counselmay submit memoranda of no more than five pages within 21 days._______________________O G PaulsenAssociate JudgeSolicitors:Bell Gully, WellingtonCrown Law, Wellington