WINTON PROPERTY INVESTMENTS LIMITED v MINISTER OF FINANCE [2023] NZCA 368

WINTON PROPERTY INVESTMENTS LIMITED v MINISTER OF FINANCE [2023] NZCA 368 [15 August2023]NOTE: THE INTERIM CONFIDENTIALITY ORDERS MADE BY THEHIGH COURT PROHIBITING PUBLICATION OF PARTICULAR DETAILSREMAINS IN FORCE: [2022] NZHC 638.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA192/2022[2023] NZCA 368BETWEEN WINTON PROPERTY INVESTMENTSLIMITEDAppellantAND MINISTER OF FINANCEFirst RespondentASSOCIATE MINISTER OF FINANCESecond RespondentMINISTER FOR LAND INFORMATIONThird RespondentCHIEF EXECUTIVE OF LANDINFORMATION NEW ZEALANDFourth RespondentCDL LAND NEW ZEALAND LIMITEDand CDL INVESTMENTSNEW ZEALAND LIMITEDFifth RespondentsGRAEME LOWE PROPERTIES LIMITED,LOWE FAMILY HOLDINGS LIMITED,and ANDREW GRAEME LOWE, SARAHMARY WHYTE, and KATHERINE JOANLOWE STACE as ExecutorsSixth RespondentsHearing: 24 and 25 May 2023Court: Miller, Courtney and Wylie JJCounsel: M G Colson KC and J W Upson for AppellantJ B M Smith KC and D J Watson for First to Fourth RespondentsA R Galbraith KC, T B Fitzgerald and L J McNeely forFifth RespondentsM Chen for Sixth RespondentsJudgment: 15 August 2023 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay costs to the first to fourth respondents jointly, to thefifth respondents and to the sixth respondents for a standard appeal on aband A basis with usual disbursements. We certify for second counsel for thefirst to fourth respondents jointly and for the fifth respondents.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Table of ContentsPara NoIntroductionBackgroundThe sale of the land to CDLThe Act as at December 2020 and its application to the saleand purchase agreementCDL's applicationThe Overseas Investments Office's assessment of CDL'sapplicationThe Ministers' decision to grant consentWinton's pleadingsThe High Court judgmentError of law — the consent decision applied the wronglegal testTook into account irrelevant considerationsError of law — consent decision applied the wrong legaltestError of law — consent decision based on a mistake of factError of law — consent decision failed to take into accountrelevant considerations[1][4][4][15][26][30][37][40][41][46][47][49][52][57]UnreasonablenessThe notice of appealSubmissionsWintonThe first to fourth respondentsCDL and CDL Investments New Zealand LtdThe Lowe interestsAnalysisThe distinction between appeal and reviewError one: the show homes errorError two: the New Zealand participation errorError three: the proportionality errorOther grounds of appealRemedyResult[62][63][65][65][69][74][79][80][80][85][111][127][139][140][145]Introduction[1] The appellant, Winton Property Investments Ltd (Winton) made a number ofunsuccessful offers to the sixth respondents (the Lowe interests) seeking to purchasefrom them land near Havelock North. Winton's best offer was a little over half thevalue of the offer made by the successful offeror, the first-named fifth respondent,CDL Land New Zealand Ltd (CDL).[2] CDL entered into a sale and purchase agreement with the Lowe interests but,because CDL was an overseas entity, it had to seek consent under theOverseas Investment Act 2005 (the Act) to give effect to the transaction. Consent wassought and it was granted by the second and third respondents (respectively theAssociate Minister of Finance and the Minister for Land Information, jointly theMinisters).[3] Undeterred, Winton filed an application for judicial review, challenging theMinisters' grant of consent. The application for review was heard by Gendall J in theHigh Court at Wellington. In a judgment issued on 31 March 2022, the Judge declinedthe application.1 Winton now appeals that decision.1 Winton Property Investments Ltd v Minister of Finance [2022] NZHC 638. On 31 March 2022Gendall J directed that his judgment be redacted in part to preserve CDL's commercialconfidentiality in various details it had provided when seeking consent. This order was in placeuntil 6 April 2023. It was extended by Palmer J on 5 April 2023. It now expires on 6 April 2024or on further order of the High Court.BackgroundThe sale of the land to CDL[4] The Lowe interests either directly or through various companies owned largeparcels of land situated to the west of Havelock North. The family had owned the landfor many years. Following the deaths of Mr and Mrs Lowe senior, surviving familymembers worked together to add value to the land so that it could be offered for sale.Using the streamlined planning processes introduced into the Resource ManagementAct 1991 in 2017,2 they succeeded in getting part of the land, comprisingapproximately 42 hectares, rezoned for intensive residential development. The newzone was known as the Iona Special Character Zone. The zoning required that anyresidential development be carried out in accordance with a structure plan.[5] In mid-2019, the Lowe interests decided to consider options for the sale of therezoned land. Family members commissioned Bayleys Valuations Ltd to value theproperty. Its market value was assessed at $42,350,000 plus GST. While it was thefamily's intention to sell the land at the best possible price, family members were alsokeen to ensure that the land was sold to an appropriate developer. The Lowe familyhad had a long association not only with the land but also with the wider area. Familymembers wanted to ensure that the land was sold to a developer they believed wasattuned to their shared values. They did not necessarily require a quick sale. If theydid not receive an acceptable offer for the land, they were prepared to continueholding it.[6] In early 2020, the Lowe interests engaged Bayleys Realty Ltd to assist with themarketing and sale of the rezoned land. Initially they tried to sell the land off market;rather than advertise the property, a list of potential buyers was drawn up and aninformation package was sent out to each of them.[7] Three offers were received:2 Resource Management Act 1991, sch 1, pt 5, inserted by s 119 of the Resource LegislationAmendment Act 2017.(a) On 10 June 2020 CDL submitted an offer of $38,251,704.85 for therezoned land, conditional, amongst other things, on it obtaining consentunder the Act to give effect to the transaction.(b) On or about 10 June 2020, Winton offered to engage in a joint venturewith the Lowe interests. The terms of the proposed joint venture werethat Winton would fund the development, and the Lowe interests wouldreceive 40 per cent from the sale of each of the completed lots. TheLowe interests were not totally opposed to the idea of a joint venturedevelopment, but family members considered that the price offered byWinton was too low and that the terms of the proposed joint venturewere too one-sided in Winton's favour. They instructed Bayleys RealtyLtd to decline the joint venture offer.(c) On 6 July 2020 the Lowe interests received an offer fromTumu Merchants Ltd (Tumu). The bid was made of on behalf of a jointventure comprising Tumu and Greenstone Land Developments Ltd(jointly Tumu/Greenstone). They offered $35 million for the rezonedland, conditional on satisfactory due diligence.[8] Members of the Lowe family met with representatives of CDL in earlyJuly 2020. They developed a good rapport with the CDL representatives and thefamily concluded that CDL had both the capability and integrity to appropriatelydevelop the rezoned land. CDL made a second offer for the rezoned land and, on8 September 2020, the Lowe interests signed a conditional sale and purchaseagreement with CDL for the sale of the rezoned land at $42 million, plus GST.[9] In the course of their discussions, the Lowe interests became aware that CDLwas an overseas person under the Act and that it would require consent from theMinisters to give effect to the transaction.3 They took advice and were told that theywould have to follow the advertising process prescribed in the Act.4 As a result, theyinstructed Bayleys Realty Ltd to conduct a marketing campaign, offering the rezoned3 Overseas Investment Act 2005, s 10(1)(a).4 Section 16(1)(f); and Overseas Investment Regulations 2005, regs 4–10.land for sale on the open market. The rezoned land was marketed byBayleys Realty Ltd in September and October 2020.[10] In early October 2020, Winton made an unconditional offer of $25 million forthe rezoned land or, in the alternative, an offer of $30 million, conditional on duediligence. Tumu/Greenstone offered $39.5 million, conditional on due diligence. TheLowe interests rejected these offers.[11] CDL had proceeded with its due diligence in the interim. It had discoveredthat there was a storm water disposal issue. The issue could be resolved if theLowe interests were prepared to include in the sale a further 27 hectares of adjoiningrural zoned land which some members of the family owned. This was discussed withthe Lowe family and, on 22 October 2020, the Lowe interests and CDL entered into anew conditional sale and purchase agreement for 69 hectares of land, being therezoned 42 hectares and the additional 27 hectares required to resolve the storm waterissue. The revised purchase price was $58 million plus GST (if any).5[12] The Lowe interests marketed the revised area of land for sale in October andNovember 2020.[13] In late November 2020, Tumu/Greenstone offered $49 million plus GST forthe 69 hectares. Winton presented two signed purchase agreements for the69 hectares. The first was at a price of $32 million plus GST (if any). It wasconditional on due diligence. The second was conditional on board approval, at a priceof $25 million plus GST (if any). The Tumu/Greenstone and the Winton offers weredeclined.[14] Lowe family members considered that CDL had made a considerable effortthroughout the sale process to investigate how the land could best be developed andto give comfort to family members. According to Mr Andrew Lowe, who filed anaffidavit on behalf on the Lowe interests, CDL took the time and care necessary torespect the Lowe family's connection with the land and to establish a good working5 There were subsequent variations to the agreement for sale and purchase but they are not relevantfor present purposes.relationship with members of the family. The family considered that CDL was morelikely to achieve a successful residential development of their land than either of theother bidders, despite the fact that CDL needed to apply for consent under the Act.While CDL was the highest bidder, the Lowe interests' decision to sell the land to CDLwas based not only on price, but also on broader factors. As Mr Lowe said:" we wanted to ensure that this land was sold to a developer who wassympathetic to our family values and reputation in the region and [who] woulddo a good job. We knew the importance of this land for Havelock North andit was a priority for us to get it done right."In contrast, the Lowe interests considered that Winton's offers were not "within theballpark of prices offered [by] other parties". Family members did not consider thatWinton's offers made any commercial sense, and as a consequence, the family did nottake Winton seriously. Family members also considered that Winton made nomeaningful attempt to engage with them, and they concluded that Winton was notgenuinely interested in the land.The Act as at December 2020 and its application to the sale and purchase agreement[15] There was no dispute before us as to the applicable provisions in the Act as itread in December 2020. The following discussion deals with the Act as it stood priorto amendment in 2021.6[16] The Act acknowledged (and still acknowledges) that it is a privilege foroverseas persons to own or control sensitive New Zealand assets.7 Prospectiveoverseas purchasers must obtain consent under the Act from the relevant Minister (orhis or her delegate) and he or she can impose conditions on any consent granted.8 Inthis way, the Act both facilitates and regulates overseas investment in New Zealandassets.96 The Act was amended in 2021 — see the Overseas Investment Amendment Act 2021.7 Overseas Investment Act, s 3(1).8 New Zealand Democratic Party for Social Credit Inc v Minister for Land Information [2021]NZCA 599 at [18].9 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 2345 at [46].[17] CDL required consent under the Act to give effect to the sale and purchaseagreement with the Lowe interests, because what was proposed under the sale andpurchase agreement would result in an overseas investment in sensitive land.10(a) CDL was wholly owned by CDL Investments New Zealand Ltd. CDLInvestments New Zealand Ltd was listed on the New Zealand StockExchange (the NZX). It was in turn majority owned by Millennium &Copthorne Hotels New Zealand Ltd (Millennium) which was also listedon the NZX. All companies were part of a corporate group based inSingapore. While CDL Investments New Zealand Ltd hadNew Zealand shareholders, more than 25 per cent of its shares wereowned by overseas persons and it and its subsidiary, CDL, weretherefore overseas persons as defined under the Act.11(b) The 69 hectares of land proposed to be sold/acquired was sensitive landbecause it included residential land, as well as non-urban land over fivehectares in size and land over 0.4 of a hectare in size zoned as openspace in the relevant District Plan.12[18] The relevant Ministers for the purpose of determining CDL's application werethe Ministers of Finance and for Land Information.13 The Minister of Finance haddelegated his authority to the Honourable Dr Megan Woods. She was anAssociate Minister of Finance at the time.[19] The Act relevantly provided as follows:16 Criteria for consent for overseas investments in sensitive land(1) The criteria for an overseas investment in sensitive land are all of thefollowing:Criteria regardless of type of relevant land(a) the investor test is met 10 Overseas Investment Act, ss 10(1)(a), 11 and 12.11 Section 7(2)(c)(i).12 Schedule 1, pt 1.13 Sections 24(1)(a) and 6.Criteria if some relevant land is residential and some or all issensitive from some other reason(a) the benefit to New Zealand test is met:[20] The investor test identified in s 16(1)(a) of the Act required the Ministers to besatisfied that the overseas person, or the individuals with control of the overseasperson, collectively had business experience and acumen relevant to the proposedoverseas investment, had demonstrated financial commitment to the investment, wereof good character, and were not ineligible for visas or entry permissions under theImmigration Act 2009.14[21] The benefit to New Zealand test required as follows:16A Benefit to New Zealand testGeneral test(1) The benefit to New Zealand test is met if all of the following are met:(a) the overseas investment will, or is likely to, benefitNew Zealand (or any part of it or group of New Zealanders), asdetermined by the relevant Ministers under section 17; and(b) if the relevant land is or includes non-urban land that, in area(either alone or together with any associated land) exceeds5 hectares, the relevant Ministers determine that that benefitwill be, or is likely to be, substantial and identifiable; and(c) if the relevant land is or includes residential land, the relevantMinisters are satisfied that the conditions that the relevantMinisters will impose on the consent in accordancewith section 16B will be, or are likely to be, met.Because consent was being sought for an overseas investment in sensitive land, andbecause the relevant land included residential land, the criteria set out in s 16B(3) alsoapplied. If consent was granted, to the extent that the consent related to residential14 Section 16(2).land, the Ministers had to determine a residential land outcome and the consent had tobe made subject to a set of conditions for that outcome.[22] Section 17 set out what the Ministers were required to consider when they wereassessing whether the proposed overseas investment would be likely to havesubstantial and identifiable benefit for New Zealand. Relevantly, it provided asfollows:17 Factors for assessing benefit of overseas investments in sensitiveland(1) For the purposes of section 16A(1)(a) and (b) the relevantMinisters—(a) must consider all the factors in subsection (2) to determinewhich factor or factors (or parts of them) are relevant to theoverseas investment; and(b) must determine whether the criteria in section 16A(1)(a) and(b) are met after having regard to those relevant factors; and(c) may, in doing so, determine the relative importance to be givento each relevant factor (or part).(2) The factors are the following:(a) whether the overseas investment will, or is likely to, result in—(i) the creation of new job opportunities in New Zealand orthe retention of existing jobs in New Zealand that wouldor might otherwise be lost; or.(v) the introduction into New Zealand of additionalinvestment for development purposes; or(g) any other factors set out in regulations.The Ministers were required to conduct their assessment of the previous s 17(2)(a)factors by reference to a hypothetical counterfactual. This is because the Act as itstood contemplated (and still does) that the economic factors identified in thesubsection might be accounted benefits only if they would not or might not happenabsent the overseas investment.15 The High Court has held as follows:16[37] The [Overseas Investment Office (OIO)] must assess what willhappen if the overseas investment is made (the factual). If it is to isolateeconomic benefits attributable to the overseas investment, the counterfactualmust similarly be forward-looking, requiring that the OIO ask what willhappen if the investment is not made.[23] The Act also required the Ministers to consider the factors set out in reg 28 ofthe Overseas Investment Regulations 2005.17 Relevantly, reg 28 provided as follows:28 Other factors for assessing benefit of overseas investment insensitive landThe other factors that are referred to in section 17(2)(g) of the Act forassessing whether an overseas investment in sensitive land will, or islikely to, benefit New Zealand are as follows:(a) whether the overseas investment will, or is likely to, result inother consequential benefits to New Zealand (whethertangible or intangible benefits (such as, for example,additional investments in New Zealand or sponsorship ofcommunity projects)):(e) whether the relevant overseas person has previouslyundertaken investments that have been, or are, of benefit toNew Zealand:(f) whether the overseas investment will, or is likely to, giveeffect to or advance a significant Government policy orstrategy:(j) the extent to which persons who are not overseas persons(New Zealanders) will be, or are likely to be, able to oversee,or participate in, the overseas investment and any relevantoverseas person, including, for example, matters such as allor any of the following:15 Tiroa E and Te Hape B Trusts v Chief Executive of Land Information [2012] NZHC 147 [CrafarFarms (HC)] at [35]; and Tiroa E and Te Hape B Trusts v Chief Executive of Land InformationNew Zealand, [2012] NZCA 355, [2012] 3 NZLR 808 (CA) [Crafar Farms (CA)]. In CrafarFarms (CA), the appeal was dismissed.16 Crafar Farms (HC), above n 15, per Miller J; and see also Coromandel Watchdog of Hauraki(Inc) v Minister of Finance, above n 9, at [47].17 Overseas Investment Act, s 17(2)(g), replaced by the Overseas Investment Amendment Act, s 10.(i) whether there is or will be any requirement that 1 ormore New Zealanders must be part of a relevantoverseas person's governing body:(ii) whether a relevant overseas person is or will beincorporated in New Zealand:(iii) whether a relevant overseas person has or will haveits head office or principal place of business inNew Zealand:(iv) whether a relevant overseas person is or will be aparty to a listing agreement with NZX Limited or anyother registered exchange that operates a securitiesmarket in New Zealand:(v) the extent to which New Zealanders have or will haveany partial ownership or controlling stake in theoverseas investment or in a relevant overseas person:(vi) the extent to which ownership or control of theoverseas investment or of a relevant overseas personis or will be dispersed amongst a number ofnon-associated overseas persons.[24] In addition, the Minister of Finance had issued a directive letter pursuant tos 34 of the Act to the Chief Executive of Land Information New Zealand, as theregulator under the Act.18 It was dated 28 November 2017. The Ministeracknowledged that each application for consent for an overseas investment in sensitiveland had to be considered on a case-by-case basis and having regard to its particularfacts. He nevertheless directed that where the overseas investment was in rural land,the Overseas Investment Office (OIO) should generally treat the jobs factor(s 17(2)(a)(i)) and the oversight and participation by New Zealanders factor(reg 28(j)), amongst other factors, as being of high relative importance. The letter alsorecorded that the OIO was expected to seek sufficient information through theapplication and assessment process to verify the information provided by applicantsand, where appropriate, to involve third parties and third party resources to achievethat goal.18 Pursuant to s 34, the Minister could (and still can) direct the Chief Executive in relation to variousspecified matters including the Government's general approach to overseas investment in sensitiveNew Zealand assets and the relative importance of different criteria or factors in relation toparticular assets. The Chief Executive must comply with any direction given.[25] Pursuant to s 14 of the Act, the Ministers were required to grant consent if theywere satisfied that the various criteria set out above had been met.19 Thus, if CDLcould satisfy the Ministers that it met the applicable criteria, it had the right to investin New Zealand.20 Conversely, the Ministers had to decline consent if they were notso satisfied.21CDL's application[26] CDL filed its application for consent on 23 December 2020. The applicationcomprised an application document, an investment plan and various annexures. CDLrecorded that it proposed to subdivide the land and develop it into a large number ofsections to be offered for sale on the open market to New Zealanders for buildingpurposes.22 It addressed the investor test in the application document and the benefitto New Zealand test in the investment plan.[27] CDL set out what it said were the substantial and identifiable benefits that itsinvestment in the land would bring to New Zealand. It recorded its view that therewere two possible counterfactuals — the first that the land would be retained by theLowe interests and continue to be used for grazing; the second that the land would besold to an alternative New Zealand purchaser (ANZP) who would most likely carryout a staged development of the land over a relatively lengthy time frame. CDLconsidered that the status quo counterfactual was the more likely scenario, but itnevertheless went on to explain why, in its view, its proposal was more likely to giverise to substantial and identifiable benefit for New Zealand than a development by anANZP.[28] CDL asserted that its plans would provide for a modern and high qualityresidential subdivision. It said that if it were given consent to implement its plans,there would be greater certainty that the land would be developed into residentialsections in a timely manner and that the development proposed by it would result in abetter outcome, providing, amongst other things, a greater housing yield. It19 Section 14(1)(c).20 Crafar Farms (CA), above n 15, at [16].21 Overseas Investment Act, 14(1)(d).22 The number of sections was identified in the application. It is covered by the confidentiality order,see above n 1.emphasised that its development would be significantly more intensive than otherdevelopments which had previously been carried out in the Havelock North area. Tothis end, it proposed that it would build a number of show homes, on smaller sections,to demonstrate to prospective purchasers that higher density housing could beachieved while maintaining the quality of the housing stock and the livingenvironment.[29] CDL set out in detail what it said were the main benefits of its proposal. It didso under six broad headings. Three are relevant for present purposes, namely:(a) Jobs: CDL claimed that its development would create 39.5 full timeequivalent jobs and that additional jobs would be created through theconstruction of the planned show homes. It argued that an ANZP wouldbe likely to develop fewer sections and would be likely to sell thesections as bare lots, without constructing show homes. It maintainedthat development by an ANZP would be likely to create fewer jobs.(b) Additional investment for development purposes: CDL indicated thatit intended to invest significant sums over the course of thedevelopment, including in relation to the show homes it proposed tobuild.23 It said that the additional investment would be funded throughretained earnings. In comparison, it suggested that an ANZP would belikely to rely on bank debt to develop the land and that an ANZP wouldnot introduce additional overseas investment.(c) Oversight and participation by New Zealanders: CDL claimed that itscore business was residential property development in this country. Itnoted that it and CDL Investments New Zealand Ltd were New Zealandcompanies with established offices in Auckland. It recorded thatCDL Investments New Zealand Ltd had been listed on the NZX forover 20 years and that New Zealanders could purchase shares inCDL Investments New Zealand Ltd at any time and thus acquire a stake23 Again, detail was given in the application but it is subject to the confidentiality order, seeabove n 1.in CDL. New Zealanders could also acquire shares in Millennium andagain indirectly acquire a share in CDL Investments New Zealand Ltdand CDL. It claimed that its previous residential propertydevelopments in this country had not targeted overseas purchasers;rather it had actively sought purchasers from New Zealand. Itsuggested that, if consent to the proposed transaction was obtained, thedevelopment would proceed promptly and the sections would be soldto New Zealanders, with the result that the land would revert toNew Zealand ownership with minimal delay.The Overseas Investment Office's assessment of CDL's application[30] On or about 15 January 2021, members of the OIO met to discuss CDL'sapplication. They also had before them correspondence they had received fromTumu/Greenstone and from a barrister, written on behalf of an unidentified client (itlater transpired that the unidentified client was Winton). The letter from the barristerqueried whether CDL had breached the Act by failing to disclose that a New Zealandbased entity had made an unconditional offer to purchase the land. This claim wasinvestigated and it was subsequently determined that no breach had occurred.[31] A senior solicitor with the OIO, Mr Daniel Mumford, was allocated to preparea report assessing CDL's application. He gave early consideration to the appropriatecounterfactual. He considered that the most likely counterfactual was developmentby an ANZP. He went on to consider the various assertions made by CDL. He alsoconsidered a submission made by Tumu/Greenstone and he made various enquiries ofhis own.[32] Despite being invited to do so, the barrister for the unidentified client (Winton)did not file any substantive submissions on CDL's application.[33] Mr Mumford drafted an assessment report analysing CDL's application anddiscussing the various statutory criteria. He also dealt with a request from theMinister for Land Information about the uses then being made of the land, its soilquality, whether it was better suited for horticulture, and what it might be used for ifthe CDL proposal did not proceed.[34] The draft report was reviewed within the OIO. Various comments were madeand, as a result, aspects of the draft report were refined and amendments were made.[35] Proposed consent conditions were drafted and sent to CDL's solicitors forcomment. Once finalised they were incorporated into the assessment report.[36] The final assessment report was signed on behalf of the OIO by Anneke Turton,the manager of the OIO's Application Section, on 10 June 2021. It recommended tothe Ministers that consent should be granted.The Ministers' decision to grant consent[37] The assessment report was forwarded to the Minister for Land Information, theHonourable Damien O'Connor, and to Minister Woods.[38] Minister O'Connor considered and signed the report on 10 June 2021. Thereport was considered by Minister Woods and she signed it on 10 July 2021. Bothrecorded that they were satisfied the various requirements set out in the Act had beenmet, and both concluded that consent should be granted subject to the suite ofconditions which was attached to the assessment report.24[39] That consent had been granted was relayed to CDL's solicitors on 12 July 2021.The sale and purchase agreement between the Lowe interests and CDL was settled on21 July 2021. CDL became the registered owner of the land and it has since takenvarious steps to commence its development. Winton learnt that CDL had acquired theland on 2 August 2021. It commenced its judicial review proceedings on15 September 2021.Winton's pleadings[40] Winton raised six grounds of review in its statement of claim in the High Court.Broadly it alleged that the Ministers:24 The conditions have subsequently been varied in some respects but these variations are notrelevant for present purposes.(a) erred in law by applying a "proportionate approach" when consideringwhether or not there was a benefit to New Zealand;(b) took into account irrelevant considerations, namely, the proportionateapproach, the characteristics of the land, the nature of the interest beingacquired, the size and zoning of the land, and the likelihood that theland would be used for residential property development, whether byCDL or an ANZP;(c) erred in law by deciding that a substantial and identifiable benefit forNew Zealand arose because of the oversight and participation byNew Zealanders in the proposed overseas investment;(d) made various mistakes of fact in their respective decisions, in particularthat CDL had a significant level of New Zealand ownership, that thecounterfactual was likely to result in fewer new or retained jobs andthat the counterfactual was likely to result in less additional investment;(e) failed to take into account relevant considerations, in particular thefragmented shareholdings in CDL, the control of CDL by its parentcompanies, Winton's status as an ANZP, Winton's plans for the land,that Winton was an unsuccessful offeror, that Winton's standardpractice was to build show homes, the likely additional investmentresulting from a development undertaken by an ANZP and the likelyjob opportunities which would result from a development undertakenby an ANZP; and(f) reached a decision that was manifestly unreasonable.A declaration was sought that the consent decision was unlawful and orders weresought setting it aside.The High Court judgment[41] Gendall J was puzzled as to why Winton had brought the proceedings, notingthat it appeared to be seeking another opportunity to negotiate with theLowe interests.25 He broadly summarised Winton's position at the hearing as beingthat the assessment report did not present a fair and accurate picture of the mattersrelevant to the Ministers' decisions.26 He noted that Winton's case focused on theinterpretation and application of the benefit to New Zealand test.27[42] The Judge observed that the benefit to New Zealand test must be assessed byreference to a counterfactual and that the Ministers had to consider what would havebeen likely to happen without the proposed overseas investment and were the land togo to an ANZP. 28 The Judge considered that the benefit to New Zealand test does notimpose a "single, universal, objective "amount" of benefit that must be met regardlessof the characteristics of the transaction".29 Rather, he considered that the requiredlevel of benefit falls to be determined on a case-by-case basis.[43] The Judge noted that Winton had argued that the Ministers were wrong to applya proportionate approach.30 It had asserted that the Assessment Report completed bythe OIO described the benefit to New Zealand test as having a "proportional nature",and that as a result, the OIO considered matters outside those mandated by the Act andregulations. In addition, Winton had noted that the assessment report suggested thatthe benefit test was finely balanced, and that the alleged error became significant giventhe OIO's recommendation that consent be granted.[44] In considering Winton's arguments, Gendall J first turned to the policy of theAct. He commented that there is nothing in the Act that suggests Parliament intendedthat an objective measure of benefit be met before consent can be granted.31 It25 Winton Property, above n 1, at [4].26 At [4] and [6], citing Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139at [40].27 At [76].28 At [83], citing Crafar Farms (HC), above n 15; and Coromandel Watchdog of Hauraki, above n 9,at [22].29 At [87].30 At [90].31 At [94].followed in his view that there is no fixed threshold for every application; rather itvaries between cases. He concluded:[94] The level of benefit required therefore needs to be assessed on aproportionate basis relative to the nature of the particular investment. The Judge considered that this approach was supported by the scheme of the Act, aswell as by a consideration of the factors the Ministers had to consider in determiningwhether to grant consent.32 In addition, he considered that a proportionate approachwas consistent with the approach taken in the Overseas Investment AmendmentAct 2021, which had, in his view codified the law in this area.33[45] The Judge then went on to consider each of Winton's pleaded grounds ofreview.Error of law — the consent decision applied the wrong legal test[46] Winton had challenged the assessment report and the Ministers' application ofthe proportionality approach, saying that it effectively lowered the threshold CDL wasrequired to establish in order to satisfy the Ministers that the benefit to New Zealandtest was met. The Judge disagreed, stating that there is no universal threshold; rathera flexible approach is required for each consent application. He observed that auniversal threshold would amount to "the imposition of an unlawful policy whichrequired an inflexible standard which did not admit of discretion in individual cases".34Took into account irrelevant considerations[47] As discussed at [42], Winton had argued that the Ministers, in applying anerroneous proportionate approach, considered a range of irrelevant factors which hadthe effect of lowering the threshold against which to assess the level of benefit CDL'sinvestment was required to establish. The factors included the characteristics, size andzoning of the land, the nature of the interest being acquired, the likelihood the landwould be used for residential property development and the likelihood CDL wouldonly own the land for a certain period before it is sold.32 At [97]–[99].33 At [109].34 At [111].[48] The Judge reiterated that a proportionality approach was appropriate and heldthat the Ministers were entitled to consider the challenged factors in making theirdecision. He also considered that the factors raised by Winton were, in any event,relevant whether or not a proportionate approach was adopted.35Error of law — consent decision applied the wrong legal test[49] Winton had challenged the approach taken in the assessment report and by theMinisters in considering reg 28(j), dealing with New Zealand oversight andparticipation as part of the benefit to New Zealand test.[50] It was common ground that the assessment report incorrectly assessed CDL ashaving a little over 45 per cent New Zealand ownership. The Judge however acceptedthe Ministers' evidence that the New Zealand oversight and participation factor wasnot determinative of their decision to grant consent.[51] He also noted that, alongside the effective shareholding in CDL InvestmentsNew Zealand Ltd held by New Zealanders (about 40 per cent taking into accountNew Zealanders' shareholdings in Millennium), the Ministers had consideredCDL Investments New Zealand Ltd's previous New Zealand investments, that bothCDL and CDL Investments New Zealand Ltd have head offices in New Zealand, theNZX listings for some of the companies involved and the directorships held byNew Zealanders in both CDL and CDL Investments New Zealand Ltd.36 The Judgeconcluded no error of law had occurred.37Error of law — consent decision based on a mistake in fact[52] Winton had argued that the Ministers were influenced by three mistakes of factwhen making the consent decision: first, that CDL Investments New Zealand Ltd hada "significant" level of New Zealand ownership, secondly, that the counterfactual waslikely to result in fewer jobs and thirdly, that the counterfactual was likely to result in35 At [115].36 At [123].37 At [125].less additional investment. Winton said the latter two mistakes were due to theerroneous assumption being made that an ANZP was unlikely to build show homes.[53] The Judge noted that all parties accepted that the level of New Zealandownership was incorrectly stated in the assessment report. As already noted theassessment report assessed the level of New Zealand shareholding at a little over45 per cent, when it was around 40 per cent.38 The Judge considered this was not amaterial difference and he was satisfied there was nevertheless a proper evidentialfoundation for the view that CDL Investments New Zealand Ltd had a "significant"level of effective New Zealand ownership.39 The Judge also reiterated that ownership,and by extension the oversight and participation factor, was not determinative of theMinisters' decision to grant consent.40 In any event, the Judge considered that even ifCDL Investments New Zealand Ltd's shareholding was taken as a standalone factualfinding, any error in that assessment was immaterial.41[54] Winton had also argued that dwellings would be built with or without CDL'sinvestment and that it was a mistake in the consent decision to conclude that an ANZPwould not build show homes. In addition, Winton said that it was illogical to concludethat building show homes would result in more investment or jobs when it wasaccepted that a development of a similar size would result anyway.[55] The Judge concluded that the Ministers did not make any factual errors whenconsidering the counterfactual in this regard.42 There was no evidence before the OIOor the Ministers that all residential property developers routinely build show homes.43Winton did not provide any plans it might have had for building show homes; its onlycommunication with the OIO about CDL's acquisition was anonymous and did notexplain its concerns. As put by Gendall J:[152] It is not open to Winton now to seek to have the consent decisionset aside on the basis that the Ministers failed to take into account informationthat Winton chose not to provide.38 At [134].39 At [137]–[138].40 At [141].41 At [141].42 At [144].43 At [151].[56] In addition, the Judge noted that the job opportunities factor and additionalinvestment issue were described in the assessment report as providing "weak" supportfor the grant of consent.44 The Judge considered the Ministers' conclusion that anANZP was unlikely to build show homes was "reasonably open to them on theavailable evidence."45Error of law — consent decision failed to take into account relevant considerations[57] Winton had alleged the Ministers did not consider the "diverse andfragmented" nature of the New Zealand shareholding interests in CDL InvestmentsNew Zealand Ltd, which Winton said was required to give proper effect to reg 28(j).46Further, the assessment report did not take into account Millennium's effective controlof CDL and CDL Investments New Zealand Ltd, which, it was argued, enabled theparticipation of New Zealanders to be changed at the whim of Millennium. Wintoncontended these alleged errors stemmed from an inadequate counterfactual analysisby the OIO.[58] The Judge considered the highest this issue could be put was that adecision-maker must not be misinformed as to "established and material facts"; ratherthe emphasis was on what is reasonable in the circumstances.47 Further, there was noobligation to consider the views of "anybody that may have an opinion".48 The Judgeconcluded there was no obligation on the Ministers to ascertain Winton's andGreenstone/Tumu's views on each aspect of the benefit to New Zealand test. This, heconsidered, would go well beyond what it was reasonable to expect from the OIO.49The Judge again noted that the oversight and participation factor was informed by arange of factors. The Ministers had given evidence it was "not a numerical test" butthe result of "the interaction between a range of relevant matters".50[59] Winton had alleged that other relevant mandatory considerations were whetherthe proposed overseas investment would or was likely to result in new or retained job44 At [154].45 At [157].46 At [159(a)].47 At [164].48 At [164].49 At [166].50 At [170].opportunities that would otherwise be lost and whether additional investment wouldbe introduced for development purposes.[60] The Judge found the Ministers specifically considered these factors and thatthere was sufficient evidence to support the Ministers' conclusion that the proposedoverseas investment would lead to additional jobs and investment. Their conclusionwas reasonably open to them and the Ministers did not overlook any relevantconsiderations.51[61] The Judge commented more broadly on Winton's concerns regarding therelevant factors:[172] The essential concern which Winton appears to express here relatesto the conclusions the Ministers drew from all those considerations, rather thanwhether the mandatory relevant factors were considered at all. Effectively,Winton is inviting the Court here to replace the Minister's decisions as to theweight to be given to all factors here with its own assessment as to weight. AsI see the position, it is simply the type of merit-based challenge that is notavailable under this head of review. Unreasonableness[62] Winton had challenged the reasonableness of the consent decision. It hadalleged that "no reasonable decision-maker" could have made the decision theMinisters made.52 The Judge noted this ground of review overlapped with the othergrounds of review and reiterated his view that there was a rational factual basis for theMinisters' decision. This ground was dismissed.53The notice of appeal[63] Winton's notice of appeal focused on the Ministers' conclusion that there wasa substantial and identifiable benefit to New Zealand in allowing CDL to purchase theland. Winton grouped its submissions around three alleged errors — what it called the"show homes error", the "New Zealand participation error" and the "proportionality51 At [179].52 At [180].53 At [187]–[189].error". Specifically, Winton alleged in the notice of appeal that the Judge erred in thefollowing respects:(a) in finding that it was not a mistake of fact and/or not unreasonable forthe Ministers to conclude that an ANZP would not build show homeson the land and/or that CDL's purchase of the land would result inadditional jobs and investment compared to an ANZP;(b) in failing to address its submission that a similar number of dwellingswould be built on the land regardless of ownership;(c) in finding that it was permissible under the Act for the Ministers to takeinto account New Zealand shareholdings in CDL's parent companiesand in concluding that CDL had a "significant" level of New Zealandownership and/or in accepting that a concept of "effectiveshareholding" is permissible under the Act;(d) in holding that a counterfactual analysis was not required whenassessing oversight and participation issues;(e) in holding that the test set out in Bryson v Three Foot Six Ltd54 was theappropriate test in relation to the mistakes of fact it alleged had beenmade;(f) in finding that the OIO was not required to undertake any furtherinvestigation to determine the appropriate features of an ANZP;(g) in finding that it was permissible for the Ministers to take aproportionate approach, and thus to lower the threshold for assessingwhether benefits in New Zealand from the proposed overseasinvestment were substantial and identifiable;54 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 (SC).(h) in finding that the Ministers' reasoning in their decision making was"somewhat broader" than the analysis in the OIO assessment report;and(i) in concluding that the OIO must have viewed CDL's application as a"very attractive one".[64] As can be seen, there is considerable overlap in these various assertions.SubmissionsWinton[65] Mr Colson KC for Winton noted that, the Ministers had to be satisfied thatCDL's purchase and development of the land would, or was likely to, substantially andidentifiably benefit New Zealand. He said that, for this purpose, the Ministers reliedon and adopted the assessment report prepared by the OIO. The assessment reportidentified four potential benefits, three of which were relevant to the appeal. Two ofthe supposed benefits — jobs opportunities and additional investment — depended onOIO's conclusion that CDL would build show homes on the land and that an ANZPwould not do so. He argued that this conclusion was based on a mistake as to thenature of Tumu/Greenstone's previous developments, and that in any event, the OIO'sconclusion, adopted by the Ministers, defied logic, given that ultimately a similarnumber of dwellings would be built on the land by whoever developed it.[66] Mr Colson went on to argue that the OIO in its assessment report identified athird potential benefit — namely New Zealanders' oversight of and participation inthe proposed investment, noting that this was identified as the only "strong" factor insupport of CDL's application. He submitted that the OIO's assessment was premisedon a mistaken calculation which overcounted the level of shareholding byNew Zealanders in CDL Investments New Zealand Ltd, and that the calculation alsoimpermissibly took into account New Zealanders' shareholdings in CDL InvestmentsNew Zealand Ltd (as the parent of CDL) and in Millennium (as the majorityshareholder in CDL Investments New Zealand Ltd). Winton also argued that theMinisters were required to assess this factor against a counterfactual.[67] Finally, Mr Colson asserted that the identified benefits were erroneouslyassessed against the wrong threshold for the purposes of determining whether CDL'sinvestment met the benefit to New Zealand test. It was submitted that the identifiedbenefits were assessed on the basis that the benefit to New Zealand test permitted aproportionate assessment, which, in the circumstances of CDL's proposal, meant thatthe benefit to New Zealand test was more easily met.[68] Overall, it was argued that CDL's application was weak, that the Ministers'assessment of the application against the criteria contained in the Act lacked rigour,and that the consent was premised, in key respects, on factual and legal errors.The first to fourth respondents[69] The submissions of Mr Smith KC for the first to fourth respondents focused onthe three alleged errors — first, the counterfactual analysis in relation to jobs andadditional investment; second, the oversight and participation factor; and third, thealleged proportionality errors. It was argued that the other grounds of appeal relatedto observations made by the Judge which were not material to his reasoning, nor to theratio of the judgment.[70] Mr Smith submitted that the application was properly considered against therelevant statutory criteria and that Winton was doing no more than challenging themerits of the Ministers' decisions. It was argued that whether the benefit toNew Zealand test was met, and by what margin, and the weight to be given to thefactors required to be considered as part of that test, were all matters for the Ministersas the statutory decision-makers. It was further submitted that the Ministers appliedthe correct test under the Act, took into account all mandatory considerations,disregarded impermissible considerations, and reached decisions reasonably open onthe information before them. It was submitted that the information contained in theOIO's assessment report was not materially affected by any factual inaccuracies. Itwas also argued that Winton's appeal focused on "subsidiary conclusions", reached aspart of the Ministers' ultimate decision to grant consent under the Act.[71] It was argued that there were no mistakes of fact and that the Ministers'conclusions in relation to the benefit to New Zealand test were tenable and fairly openon the evidence. It was put to us that the counterfactual analysis rested on predictivedeterminations about the likely nature and characteristics of an ANZP, and what anANZP might be expected to do. It was suggested that even where unsuccessfultenderers and their intentions for the relevant land are known, the ANZP is ahypothetical entity, and that underbidders do not become the ANZP. It was argued thatthe evidence before the OIO tended to support the view that an ANZP was not likelyto build show homes, whereas CDL intended to do so.[72] In relation to the oversight and participation factor, it was acknowledged thatthe figures provided by CDL in its application were in error, but that the inaccuracyhad no impact on the validity of the overall decision made. Mr Smith argued that theMinisters' view that the level of New Zealand participation and ownership in CDLwas significant, was not amenable to challenge in any event, because even if a mistakewas made, the mistake was not sufficiently material to undermine the Ministers'multi-faceted decision to grant consent.[73] Finally, it was argued by Ms Watson, also for the first to fourth respondents,that the Ministers, in relation to the alleged proportionality error, correctly applied therelevant law as it stood at the time the decision was made. It was submitted that theAct implicitly required that the benefit to New Zealand test be analysed by referenceto the nature of the proposed investor in each case, and that the way in which theMinisters approached the matter was consistent in all respects with both the schemeand purpose of the Act.CDL and CDL Investments New Zealand Ltd[74] Mr Galbraith KC for CDL submitted that Winton's appeal engaged one of thecore tenets of judicial review — namely that the Courts' function is limited to ensuringthat decision makers have exercised statutory powers lawfully. Judicial review is notan appeal. It was submitted that it is not the Court's role to consider the Ministers'decisions de novo, nor to substitute its own judgment for that of the Ministers. It wasput to us that in substance, Winton was inviting the Court to ask itself whether it wouldhave made a different decision, and whether it would have asked different questionsor interpreted the facts in a different way to the Ministers.[75] Mr Galbraith argued that the Ministers were entitled to take into account thesize, nature and proposed use of the land by CDL — in other words, they were entitledto take a proportionate approach when considering the sufficiency of the benefitresulting from CDL's proposal. He endorsed the views taken by Gendall J and arguedthat there was no error of law. He also argued that the Ministers did not take intoaccount irrelevant considerations when they noted the characteristics of the land, thenature of the interest being acquired, the size and zoning of the land, the likelihoodthat the land would be for residential property development, and that CDL was likelyto own the land only for a relatively short period before it was on sold to purchasers.It was argued that these characteristics were all fundamental to a rational assessmentof the benefit to New Zealand test and that Ministers did not err in taking them intoaccount.[76] Regarding the oversight and participation factor, Mr Galbraith argued first thatit was not a determinative factor in itself. Rather it was one of a number of benefitfactors that were recommended to the Ministers in the OIO's assessment report. Itwas pointed out that the Ministers, in their respective affidavits, explained that it wasnot the sole or primary basis for their decision. Further, it was argued that there wasno error of law and that the approach taken by the Ministers was consistent with theAct and the regulations.[77] It was argued that there was no mistake of fact by the Ministers and that therewas a significant level of New Zealand ownership in both CDL InvestmentsNew Zealand Ltd and in Millennium. There was a factual foundation for theMinisters' view that CDL Investments New Zealand Ltd had a significant level ofNew Zealand ownership. It was submitted that the approach taken by the Ministers,of "looking through" the shareholdings was the correct approach and consistent withthe purpose for which the enquiry was made, namely to understand the substantiveeconomic participation in and control of the entity making the investment inNew Zealand.[78] It was argued that Winton's argument that the Ministers relied on a mistake offact made by the OIO when it concluded that an ANZP would be unlikely to buildshow homes and that as a result fewer jobs and/or less additional investments wouldresult, was legally untenable. It was said that a conclusion on a likely hypotheticalcould not be a mistake of fact, because any mistake did not relate to an established factand was not objectively verifiable. It was also noted that none of the information nowrelied on by Winton was available to the Ministers at the time, and that theirconclusions were open to them on what they had. It was submitted that all relevantcriteria were taken into account, and that it could not be said that the Ministers'decisions were manifestly unreasonable.The Lowe interests[79] Ms Chen for the Lowe interests endorsed the submissions of other counsel forthe respondents. She argued that there was more than sufficient information to supportthe OIO's recommendations and on which the Ministers could reach their decision andgrant consent. She submitted that there were no mistakes of fact, material orotherwise, and that the Ministers' decision did not meet the high threshold ofunreasonableness. She also argued that there were multiple factors weighing againstthe grant of relief, were this Court to conclude that the appeal should be allowed.AnalysisThe distinction between appeal and review[80] Gendall J was careful to draw a distinction between appeal and review. Heclearly considered that Winton was inviting the Court to reconsider aspects of theMinisters' decision to grant consent, and that the Court was being invited to adopt anappellate function, rather than confine itself to judicial review.55[81] In our judgment, the Judge was right to do so.[82] An appeal is the right vested in a party by an Act of Parliament56 to resort to ahigher court or body and invoke its "aid and interposition" to address an error madeby a body lower in the curial hierarchy.57 It is a complaint that the decision of theinferior Court or body is wrong through mistake and it takes the form of a request to55 Winton Property, above n 1, at [56]–[58].56 Attorney-General v Sillem (1864) 11 ER 1200 at 1207.57 At 1209.a competent superior tribunal to reconsider that decision. An appellate Court willconsider the decision under appeal on its merits and can substitute its own decision forthat of the body from which the appeal has been taken. The creation of a right ofappeal requires legislative authority.58[83] In contrast, judicial review does not derive from any statutory authorisation.Rather it forms part of the inherent common law jurisdiction vested in theHigh Court.59 In the exercise of its review jurisdiction, the Court confines its enquiryto the legality of the decision maker's determination. Judicial review is mainlyconcerned with errors of process which go to the jurisdiction of the decision makerand with errors made on the face of the record of the decision.60 Errors which go onlyto the merits or wisdom of the challenged decision, are generally not susceptible tojudicial review (although, in practice, the distinction between legality and merits hasproved to be elastic).61[84] Against this background, we turn to consider the three alleged errors raised byWinton.Error one: the show homes error[85] As discussed at [63], Winton alleged the Judge erred in relation to the showhomes in finding that it was not a mistake of fact nor unreasonable for the Ministersto conclude that an ANZP would not build show homes on the land and/or that CDL'spurchase of the land would generate additional jobs and investment compared to theANZP counterfactual. The alleged show homes error was raised in points (a), (b), (e)and (f) of the notice of appeal.[86] As already noted, CDL's application recorded that it proposed to subdivide theland and create a large number of residential sections, ranging in size from relativelysmall to relatively large. It proposed that some of the lots would be used for intensive58 At 1207.59 Groenwelt v Burwell (1697) 91 ER 1202 (KB) at [469].60 New Zealand Fishing Industry Assoc Inc v Minister of Agriculture & Fisheries [1988] 1 NZLR544 (CA) at 557 per Richardson J.61 William Wade and Christopher Forsyth Administrative Law (11th ed, Oxford University Press,New York, 2014) at 302 and 312–313.residential development and that a number of residential dwellings (show homes)would be built on some of the subdivided sections to demonstrate compact liveablehomes on smaller sections. It was proposed that the show homes would comprise amix of standalone, duplex, and terraced units. CDL argued that the show homes woulddemonstrate higher density living, which was atypical in the Havelock North area,where historically there have been large single level dwellings on large sections.[87] CDL also proposed to build a gated retirement living complex with a numberof standalone and duplex 1–2 bedroom units with a different ownership structure tothat adopted in conventional retirement villages. CDL reasoned that the constructionof the show homes and the retirement complex would generate additional jobs andresult in additional overseas investment in New Zealand.[88] The OIO in its assessment report recorded its view that, if the overseasinvestment by CDL did not proceed, the land was likely to be sold to an ANZP, whowould also undertake a residential subdivision. It considered that an ANZP would alsobe likely to develop residential lots, given the zoning of much of the land, but not toitself build houses on them, instead allowing purchasers to separately engage buildersto construct houses on lots purchased.[89] The OIO noted that any development of the land would need to comply withDistrict Plan requirements and that, as a consequence, CDL's ability to demonstrate apoint of difference in its proposed outcome from that offered by an ANZP was limited.The OIO accepted that the overseas investment proposed by CDL was likely to resultin a benefit to New Zealand, but observed that it was finely balanced as to whether thelevel of benefit met the substantial and identifiable threshold set out in the Act.[90] The OIO went on to record that, in its view, the construction of show homeson some of the new lots was likely to result in more jobs and additional investmentthan the counterfactual. It noted that it had received a submission fromTumu/Greenstone, who had indicated they also would complete a residentialsubdivision, offering approximately the same number of lots as CDL proposed to offer.[91] The OIO prepared a summary table recording its view of the benefits likely toresult from any overseas investment by CDL and the weight it suggested should begiven to each. Under the heading "job opportunities" (which it recorded should begiven high relative importance as required by the Ministerial directive), the assessmentreport recorded that CDL proposed to provide 34 full time equivalent jobs to completethe subdivision, 12 full time equivalent jobs to build the proposed show homes and26 full time equivalent jobs to build the proposed retirement complex. It also notedthat the proposed investment was also likely to result in the retention of 6 full timeadministrative staff within CDL.[92] The table suggested that a counterfactual development by an ANZP was likelyto result in fewer new or retained full time equivalent jobs, because the ANZP wasunlikely to build show homes. It suggested that the strength of this factor wasnevertheless weak. It recommended that if consent was granted, a condition shouldbe imposed requiring CDL to undertake the development and report on the number offull time equivalent employees and contractors employed or retained over the courseof the development.[93] Winton argued that the OIO did not adequately check the position beforemaking these various assertions and that either it, or Tumu/Greenstone, would havebuilt show homes had either of them acquired the land. It was argued that as a result,the OIO's assessment report contained a mistake of fact and that the Ministersproceeded on this mistake of fact when they adopted the OIO's recommendations anddecided that consent should be granted to CDL.[94] While the Ministers were not required to personally inform themselves ofevery fact or minutiae that might be relevant to their decision,62 the new jobopportunities and additional overseas capital were obviously material to the decisionand they had to directly consider them.63 As public law decision makers they had tobe sufficiently informed of the factors so as to be able to take them into account as62 Air Nelson, above n 26, at [42], citing Bushell v Secretary of State for the Environment [1981] AC75 (HL).63 CREEDNZ Inc v Governor General [1981] 1 NZLR 172 (CA) at 183; and Air Nelson Ltd,above n 26, at [54].being relevant to the decision they were required to make.64 In order to ensure thatthey were fully informed, the Ministers could delegate the making of enquiries butthey had to take responsibility for any report prepared as a result of such enquiries. Ifthe report contained an error and that error led them into a mistake with the result thatthey failed to take into account the true facts, their resulting decision would beamenable to judicial review; it would not be right that a party adversely affected shouldsuffer.65[95] If the matter being reported on was important, additional detail should havebeen obtained by the person preparing the report, if it was considered that additionaldetail was required.66 The position was succinctly summarised by McGechan J asfollows:67[60] There is a duty on a Minister charged with exercising a statutorypower to inform himself to a reasonable extent commensurate with what hemust do and what is at stake. What is "reasonable" will also depend oncircumstances prevailing at the time. Matters such as time available, resourcesto hand, existing knowledge and expertise, and reliability or apparentreliability of sources all can have a bearing, along with all else. In principle,exhaustive information of course is desirable. In practice, that happy state israrely obtainable. I say that with some feeling. Many decisions, andreasonably, must be made on the basis of information to hand or practicablyobtainable within an available timeframe. The false wisdom of hindsight,which nearly always will point to additional information and say it would havebeen useful, needs severe restraint.[96] The creation of new job opportunities and the introduction into New Zealandof additional overseas capital were factors the Ministers had to consider whenassessing the benefit to New Zealand test. The OIO reported to the Ministers on theissues and made various recommendations to them. Thus, we are required to considerwhether the OIO's assessment report was inadequate or misleading.[97] In its application CDL referred to its intention to build show homes and aretirement complex, noting the resulting benefit in additional jobs and investment fromso doing. Mr Mumford in his affidavit described the steps he took to assess this claim.64 Air Nelson Ltd, above n 26, at [34] and [54].65 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 149; and Air Nelson Ltd,above n 26, at [51]–[52] and [56].66 Crafar Farms (CA), above n 15, at [54].67 CRA3 Industry Association Inc v Minister of Fisheries HC Wellington CP317/99, 24 May 2000.He expressly considered CDL's argument that its proposed investment would be likelyto result in a greater number of job opportunities being created than would occur underthe counterfactual. He sought and obtained further information from CDL, which hethen reviewed and further assessed. He provided a copy of Tumu/Greenstone'ssubmission to CDL's solicitor and sought CDL's response.[98] Mr Mumford knew that there were two New Zealand entities who wereunderbidders for the land. He had received a submission from one, Tumu/Greenstone,and he had invited the barrister for the other unidentified entity (Winton) to make athird party submission on behalf of his client.[99] Nothing was received from the barrister and as a result there was nothing toconsider from the unidentified entity (Winton).[100] Mr Mumford analysed Tumu/Greenstone's submission as part of hisconsideration of the counterfactual. Tumu/Greenstone did not either explicitly orimplicitly indicate that they would have built show homes or dwellings on the land,had they managed to acquire it. Rather, they described Greenstone as a landdevelopment company and Tumu as a supplier of timber and associated buildingproducts. Mr Mumford visited the Greenstone website to glean information about itsprevious developments. He reviewed five different developments undertaken byGreenstone. In each case, Greenstone had developed sections on which purchaserscould build dwellings, using builders of their choice. He noted that this appeared tobe Greenstone's standard practice. He noted that in one development, Greenstone hadadvised purchasers that they could use builders of their choice, but that they first hadto provide Tumu the right to supply materials for any new home. It did not appear toMr Mumford that Greenstone was in the business of both developing residentialsections and constructing dwellings.[101] To assist with his consideration of the counterfactual, Mr Mumford puttogether a spreadsheet which compared the detail of CDL's proposed investment andthe detail of the development that he considered might be undertaken by an ANZP. Aspart of this exercise, he reviewed other assessment reports for consents granted inrecent years for land intended to be used for residential development. He used the datathat came from these earlier assessment reports to compare the development scenariosclaimed by CDL and by Tumu/Greenstone. Ultimately, Mr Mumford concluded thatit was more likely that, under the counterfactual preferred by the OIO, an ANZP woulddevelop residential lots for sale but would not build dwellings on the lots.[102] In our judgment, Mr Mumford made adequate and reasonable enquiriesregarding the issue. He relied on CDL's application, on the Tumu/Greenstonesubmission, and on his own independent enquiries in forming his views andrecommendations. He was aware of the Ministerial directive, which required jobcreation and retention to be a factor of high relative importance. He brought this tothe attention of the Ministers in the assessment report. There was nothing inaccurateor misleading in the assessment report. It recorded the OIO's best assessment of whatan ANZP might do.[103] Further, and in any event, we do not consider that, even if there was an error inthe assessment report, that error amounted to a mistake of fact. A mistake of fact canfound an application for review.68 While the scope of this head of review is not yetfully settled, the Supreme Court in Bryson v Three Foot Six observed that a mistake offact amounting to an error of law arises where the evidence does not support theconclusion reached, is contradictory of it, or can only lead to the opposite conclusion.69The relevant mistake must be as to a fact which is established, uncontentious, andobjectively verifiable.70 There is a very high hurdle; it is not a mistake of fact to adoptone of two different points of view of the facts, each of which can reasonably be held.71[104] The alleged show homes error was not in relation to a fact which wasestablished, uncontentious, and objectively verifiable. Rather, any error was inrelation to an inference drawn by the OIO from the materials which were properly68 Ririnui v Land Corp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 (SC) at [54];Glaxo Group Ltd v Commissioner of Patents [1991] 3 NZLR 179 (CA) at 184; andTaylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648at [94], citing Daganayasi, above n 65, at 145 and 149 per Cooke J.69 Bryson v Three Foot Six, above n 54, at [26].70 E v Secretary of State for the Home Department, [2004] 1 QB 1044, [2004] 2 WLR 1351 at [63]and [66].71 New Zealand Fishing Industry Assoc Inc v Minister of Agriculture and Fisheries, above n 60, at552, citing Secretary for State for Education and Science v Tameside Borough Council [1976]3 WLR 641; CREEDNZ Inc v Governor General, above n 63, at 181; and Bryson v Three FootSix, above n 54, at [25].before it at the time. A mistake of fact will not generally be found in suchcircumstances.72[105] In our judgment, the alleged show homes error cannot be categorised as amistake of fact. The OIO predicted what might happen if the land was acquired by anANZP. The counterfactual called for a hypothetical enquiry. It did not require aforensic enquiry as to which particular New Zealander might acquire the property, noran investigation into any particular New Zealander's subjective intentions in respectto the property were he or she to acquire it. Winton was not the ANZP. Nor wasTumu/Greenstone. The assessment of what an ANZP might do if it had acquired theland required not calculation, but informed Ministerial judgment.[106] It is clear from the Ministers' affidavits that this is what occurred in this case.(a) Minister O'Connor, in his affidavit, recorded that he was mindful of theneed for more residential housing, and that as a result, he was particularlyinterested to understand the counterfactual situation. He reviewed theOIO's assessment report. He considered that the proposed residentialdevelopment would be positive for the region. He said that he wasgenerally aware of the shortage of housing and restricted capacity andcapability in New Zealand to meet the demand. He was interested in andsupportive of CDL's proposal for higher density housing development.He described it as innovative. He noted that traditionally suchdevelopments have not been common in New Zealand, but in his viewmore intensive development is required given the ongoing utilisation ofhighly productive land. He considered that the benefits of CDL'sapplication were likely to be substantial and identifiable because, interalia, the proposed investment would create new and more jobs thanwould occur under the counterfactual. He also noted that the proposedinvestment would result in the introduction of additional funds intoNew Zealand for development.72 Lalli v Attorney-General [2009] NZAR 720 (HC) at [78].(b) Minister Woods also considered that the proposed investment by CDLhad the potential to deliver a benefit over and above the counterfactual.She noted CDL's proposal to build show homes to model high densityliving, and its argument that this would result in more investment. LikeMinister O'Connor, she said that she was guided by the assessmentreport, which noted that the job opportunities factor was of high relativeimportance, and that the proposed investment would be likely to createnew and more jobs than would occur under the counterfactual. She alsonoted that CDL had previously invested in New Zealand, and that theseinvestments had benefitted New Zealand. She considered that itsproposed investment in the land would result in the introduction toNew Zealand of additional investment for development purposes.[107] The jobs and additional investment factors were only two of the factors set outin s 17(2)(a) of the Act. There were a number of other factors, none of which arechallenged by Winton. Even if there was an error in relation to jobs and/or additionalinvestment arising from the construction of show homes (which we do not consider tobe the case), it was not material to the Ministers' overall conclusion that the benefit toNew Zealand test was met.[108] The Ministers applied their respective minds to the relevant aspects of thebenefit to New Zealand test. They were guided by the assessment report, but they didnot slavishly adopt it. Rather, each Minister considered the matters raised in theassessment report and each formed his or her opinion as to whether or not the statutorycriteria were met. Winton is doing no more than challenging the weight given by theMinisters to two particular mandatory factors. That is beyond the scope of judicialreview.73[109] Winton also argued that the OIO's conclusion recorded in its assessment reportwas illogical, because the same number of houses would ultimately be built on theland by builders engaged by purchasers, whether or not show homes were built. Weaccept that it could reasonably be assumed that the creation of residential lots would73 Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 401, citing New Zealand FishingIndustry Assoc Inc v Minister of Agriculture and Fisheries, above n 60, at 552 per Cooke P.ultimately lead to the construction of dwellings at some point, but the likelihood of thedwellings being constructed earlier rather than later, thus giving rise to a benefit withina relatively short timeframe, was a matter relevant to the Ministers' assessment of thebenefit to New Zealand test. The Ministers, through the imposition of conditions,could ensure that the development was undertaken within an appropriate timeframeand seek to ensure that the promised benefits were delivered. We accept thesubmission made by Mr Smith that, in situations of high demand and short supply,high certainty of an outcome, and faster timeframes, will often be importantconsiderations.[110] Accordingly, this ground of appeal must fail.Error two: the New Zealand participation error[111] Also as discussed at [63], Winton alleged that the Judge erred in relation to theoversight and participation factor, particularly in finding it was permissible for theMinisters to consider the New Zealand shareholding in CDL's parent companies, inconcluding CDL had a "significant" level of New Zealand ownership and in holdingthat a counterfactual analysis was not required when assessing the oversight andparticipation factor. This alleged error was asserted in paragraphs (c) and (d) of thenotice of appeal.[112] The OIO's assessment report proceeded on the basis that CDL was owned,either as to 43.86 per cent or 46.9 per cent, by New Zealanders.74 The OIO concludedthat CDL Investments New Zealand Ltd had a "significant level" of New Zealandownership and participation and this was identified as a strong factor in the assessmentof the benefit to New Zealand test.[113] CDL's application for consent stated that CDL Investments New Zealand Ltdwas owned as to 46.9 per cent by New Zealanders on a "look through" basis. Thiscalculation took into account the level of New Zealand ownership in bothCDL Investments New Zealand Ltd (which owned 100 per cent of CDL) and74 Both figures appeared in the assessment report, although the figure primarily advised in theassessment report was 46.9 per cent.Millennium, which was CDL Investments New Zealand Ltd's majority shareholder.CDL in its application had added the New Zealand shareholding in CDL InvestmentsNew Zealand Ltd to the New Zealand shareholding in Millennium to calculate what itsaid was the total percentage New Zealand shareholding in CDL InvestmentsNew Zealand Ltd.[114] It is common ground that this was an error, and that the error was not pickedup by the OIO in its assessment report. Assuming that the look through basis wasappropriate, the correct approach was to multiply the percentage New Zealandshareholding in Millennium (24.75 per cent) by Millennium's percentage shareholdingin CDL Investments New Zealand Ltd (65.87 per cent), producing a New Zealandshareholding of 16.3 per cent in CDL Investments New Zealand Ltd via Millennium.This, added to CDL Investments New Zealand Ltd's direct percentage of New Zealandshareholding — 23.77 per cent — resulted in 40.07 per cent of the shares inCDL Investments New Zealand Ltd being held by New Zealanders.[115] Winton asserted that the only substantial and identifiable benefit toNew Zealand recorded in the OIO's assessment report was the oversight by andparticipation of New Zealanders factor. It went so far as to suggest that this was the"determinative factor" in the Ministers' decision to grant consent and that theMinisters sought to downplay it in their respective affidavits. It argued that thepercentage of New Zealand shareholding in CDL Investments New Zealand Ltd wasovercounted and further, that the OIO erred in failing to apply a counterfactual analysisto this factor.[116] Regulation 28(j) required that consideration be given to the extent to whichNew Zealanders would be, or were likely to be, able to oversee or participate in theproposed overseas investment. It listed six non-exhaustive factors that could berelevant when determining whether the oversight and participation factor was met.[117] We accept that the figures given by CDL in its application were wrong and thatthis error flowed through into the OIO's assessment report, but, like the Judge, we donot consider that the error was material.[118] The Ministers in their respective affidavits expressly stated that the oversightand participation factor was not the sole or even the primary basis for their respectivedecisions to grant consent. Rather they explained that their decisions were guided byall relevant benefit factors:(a) Minister O'Connor noted that all of the directors of CDL and three ofthe directors of CDL Investments New Zealand Ltd, were New Zealandcitizens. He further commented that "a reasonable percentage of theultimate shareholders of the companies were based in New Zealand".He said that this meant that there were New Zealanders in direct controlof the proposed investment (the directors) and that there were a numberof New Zealand investors in the companies who would derive a benefitfrom the proposed investment by way of their shareholding. He saidthat the precise percentage of New Zealand shareholders is not a matterto which he generally pays close regard, unless the figure is oneapproaching an extreme. He said that he might have given additionalweight to a figure at the very upper end, or given less weight to a figureat the very bottom end. Otherwise, he said he did not feel stronglyabout figures sitting in the middle range. He expressed the view thatthe figures are relative, and that he did not attach much, if any, differentweight to numbers such as 30 or 50 per cent. He said that in CDL'scase, the precise figure of 46.9 per cent New Zealand shareholding wasnot a number that motivated him in his decision. In addition, he saidthat if the percentage of New Zealand shareholding was 25 per cent,that would not have motivated him to decline approval. He recordedthat there were several other factors which he took into account inmaking his decision.(b) Minister Woods noted that the oversight and participation factor wasinformed by a range of matters, and that there was no "numerical testin [her] mind". She said that it was the interaction between the rangeof relevant matters that she focused on. She commented thatCDL Investments New Zealand Ltd and its majority shareholderMillennium were both NZX listed companies, and that the level ofshareholding by New Zealanders could go up or down over time. Sheobserved that all of the directors of CDL, and half of the directors ofCDL Investments New Zealand Ltd, were New Zealanders, and that inmaking her decision on CDL's application, she did not consider that theoversight and participation by New Zealanders was a determinativefactor. She also confirmed that she considered all of the other factorsnoted in the assessment report.[119] In our judgment, the Minister's affidavits are conclusive in relation to thisissue. The error made by CDL and by the OIO in the assessment report as to thepercentage shareholding held by New Zealanders in CDL Investments New ZealandLtd was not material. On the evidence, it did not unduly influence either of theMinisters.[120] Winton also argued that the OIO should have applied a counterfactual analysisto this factor. It suggested that Miller J's analysis in Crafar Farms (HC) suggestedthat such a counterfactual was unnecessary and that the Judge was in error in thisregard.75[121] We do not consider that Miller J's analysis in Crafar Farms (HC) suggests thatthe reg 28 factors should never be the subject of counterfactual analysis. RatherMiller J noted that the criteria listed in reg 28 deal, for the most part, with benefits thatonly overseas buyer can provide, what may be broadly described as strategicconsiderations.76 Such matters do not lend themselves to a counterfactual analysis.This does not suggest that the reg 28 factors cannot be subject to a counterfactualanalysis and we accept that some of them could be. The oversight and participationby New Zealanders factor could, in appropriate cases, be susceptible to counterfactualanalysis. A counterfactual analysis was not however required in this case, because theOIO accepted that the counterfactual was a New Zealand owned and controlleddeveloper undertaking the same type of subdivision and development as was proposedby CDL.75 Crafar Farms (HC), above n 15, at [36].76 At [36].[122] Winton also argued that the OIO in its assessment report, and thus theMinisters, erred in their approval when they took into account the percentage ofNew Zealand shareholding in Millennium.[123] We do not consider that there was any error in this regard. The assessmentreport recorded that the relevant overseas persons were CDL and CDL InvestmentsNew Zealand Ltd. CDL Investments New Zealand Ltd was involved, because CDLwas wholly owned by CDL New Zealand Investments Ltd and the key decision-making entity for the proposed investment by CDL was CDL InvestmentsNew Zealand Ltd and its board of directors. We consider that this approach wascorrect.[124] It is consistent with the scheme of the Act and the regulations that entities withfull or majority shareholdings in the relevant overseas person, should be considered tobe the person making the overseas investment.77 The same applies to Millennium.The words "overseas person" were defined in the Act by reference to the percentageshareholding owned or controlled by an overseas person or persons.78 What is relevantwhen considering a corporate applicant is the extent to which its percentageshareholding is owned or controlled by New Zealanders, who, by virtue of theirshareholding, whether direct or indirect, can oversee and/or participate in the overseasinvestment. This appears to us to be what reg 28(j) is aimed at.[125] The regulation is broadly drawn and it directs attention to a number ofnon-exclusive matters relating to the oversight by, or participation of New Zealandersin an overseas investment. It lists examples of matters that can inform a Minister'sassessment of the New Zealand oversight and participation factor. They are notthemselves mandatory considerations. The Ministers can take into account all or anyof them.[126] Here it was plainly relevant that 65.87 per cent of CDL InvestmentsNew Zealand Ltd was owned by Millennium and that 24.75 per cent of the shares inMillennium were owned by New Zealanders. New Zealand shareholders stood to77 Overseas Investment Act, s 8.78 Sections 7(1) and 7(2)(b)–(c).benefit, albeit indirectly, in the anticipated fruits of the proposed overseas investmentby CDL.Error three: the proportionality error[127] Winton alleged the Judge erred in finding it was permissible for the Ministersto take a proportionate approach in assessing whether the benefits to New Zealandfrom the proposed overseas investment would be substantial and identifiable. Thiswas alleged error (g) in the notice of appeal.[128] The OIO's assessment report recorded, under the heading"Conclusion – benefit to New Zealand test", that it had undertaken its assessmenthaving regard to the characteristics of the land and the nature of the interest beingacquired, "reflecting the proportional nature" of the benefit to New Zealand test. Itnoted that it had particularly considered the size and zoning of the land, and thelikelihood that the land would be used for residential property development, whetherunder the proposed investment, or the counterfactual.[129] Winton submitted that the effect of taking this proportionate approach was tolower the threshold test for assessing whether the benefit to New Zealand from theproposed overseas investment was substantial and identifiable. It argued that the OIOin the assessment report, and thus the Ministers when they relied on the assessmentreport, modified the statutory criteria and applied the wrong legal test. It also arguedthat, as a result, the Ministers took into account irrelevant matters, which the OIO hadused to form its analysis in the assessment report. It said that the Judge erred in findingthe proportionate approach was permissible.[130] The Judge's reasonings for dismissing Winton's arguments in this regard canbe summarised as follows.(a) The Act does not contemplate that "some objective universal measureof benefit" must be met in every case.79 Rather, the level of benefitvaries between individual cases.79 Winton Property, above n 1, at [94].(b) The OIO's long standing and published policy provided for aproportionate approach.80(c) The benefit to New Zealand test requires Ministerial judgment.81(d) The issue had not been raised in other cases.82(e) The Ministerial directive noted that the OIO should adopt a risk basedand proportionate approach to application assessment.83(f) Recent amendments to the Act have codified the OIO's previousapproach.84[131] We agree with the Judge that a proportionate approach is consistent with thescheme and purpose of the Act, which is to acknowledge that it is a privilege foroverseas persons to own and control sensitive New Zealand assets by requiring thatthe prescribed criteria for consent be met before an overseas investment can be made.85[132] As we have noted, the Act is concerned with facilitating and regulating, ratherthan preventing, overseas investment. The statutory scheme and purpose do notrequire a fixed benefit threshold in all cases. The more sensitive and/or valuable theNew Zealand asset is, the greater the privilege it must be for an overseas person toown or control it. It follows, as a matter of logic, that the level of benefit required tobe derived from the proposed overseas investment before the benefit for New Zealandtest is met, must be greater.[133] To suggest that there is one universal threshold applicable to every applicationfor consent under the Act makes little sense. The level of benefit must be different inindividual cases and each proposed overseas investment must satisfy the benefit toNew Zealand test. The benefit required might vary according to the scale of the80 At [96].81 At [97].82 At [102].83 At [105(a)].84 At [109].85 Overseas Investment Act, s 3.acquisition and any particular sensitivity of the land involved. As the Judge noted, afixed threshold would impose an inflexible standard, not permitting the exercise ofdiscretion in individual cases.86[134] Further while the benefit to New Zealand test must be met, the weight orrelative importance to be given to each relevant factor is for Ministers to determine.This is expressly recognised in s 17(1)(c) of the Act. While the Act does limit thecriteria and factors to which Ministers can have regard in deciding whether to grantconsent, it does not expressly or impliedly dictate which criteria and which factors aremore or less relevant to any particular overseas investment application, or, in thecontext of the benefit to New Zealand test, the weight to be given to each relevantfactor.[135] The adoption of a proportionate approach does not result in the illegitimate"netting" of costs and benefits as suggested by Winton. Rather it permits flexibilityand allows Ministers to balance relevant matters when assessing the level of benefitrequired, and in determining whether the benefit to New Zealand test is met.[136] The OIO has for some time applied a proportionate approach. TheLand Information New Zealand website provided details of this approach. It set out anon-exhaustive list of matters that can be relevant to determining the value of thesensitive New Zealand assets proposed to be acquired. It is also noteworthy that theMinisterial directive, discussed at [26] above, expressly recognised that eachapplication for consent for an investment in sensitive land had to be considered on acase-by-case basis having regard to its particular facts.[137] Further, as the Judge recognised, following recent amendments, the Act nowexpressly incorporates a proportionate approach.87 It appears that the amendment, atleast in part, was a codification of the pre-existing practice.8886 Winton Property, above n 1, at [111].87 Overseas Investment Act, s 16A, as amended by the Overseas Investment Amendment Act, s 9.88 The Treasury Reform of the Overseas Investment Act 2005 – Phase 2, Regulatory ImpactAssessment (March 2020) at 73 and 78–79.[138] In our view, the Judge was correct in his analysis and the Ministers did notmake an error of law in adopting a proportionate approach when assessing CDL'sapplication. Nor, as a consequence, did the Ministers err or take into account irrelevantconsiderations such as the characteristics of the land, its zoning, and the like. Again,this ground of appeal must fail.Other grounds of appeal[139] The remaining grounds of appeal raised by Winton, namely that the Ministers'reasoning was somewhat broader than the analysis in the OIO's assessment report andthat the OIO must have viewed CDL's application as very attractive, do not requireany detailed comment. They were observations made by the Judge which had nobearing on his decision or on the ratio of his judgment.Remedy[140] We make the following observations in case we are wrong in any of ourconclusions set out above.[141] It is trite law that an order quashing a decision — certiorari — is discretionary,and that the Court can withhold relief if it thinks it appropriate to do so. This was thecase at common law89 and the discretion is expressly recognised in s 18 of theJudicial Review Procedure Act 2016. The exercise of the discretion can howevermake inroads upon the rule of law and it falls to be exercised with the greatest ofcare.90[142] In most cases, the remedy will accompany the right and the discretionarywithholding of relief will not be the normal outcome where there is a successful attackon a reviewable decision.91 In some circumstances however the denial of relief canserve the public interest, for example, where harm to an innocent third party might89 Wade and Forsyth, above n 61, at 500 and 509.90 At 596.91 Wendco (NZ) Ltd v Auckland Council [2015] NZCA 617 at [64]–[67]; Auckland Council v Wendco(NZ) Ltd [2017] NZSC 113, [2017] 1 NZLR 1008 (SC) at [96], citing Ririnui v Landcorp FarmingLtd, above n 68, at [112] per Arnold J, where the appeal was allowed but not on this issue; andJust One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA) at [39].otherwise result.92 An applicant can also lose a claim to relief because of unreasonableconduct or because the objection was raised too late (although delay is unlikely to bethe only basis for refusing relief if no prejudice has been caused).93[143] In the present case there are a number of matters which, in our view, wouldneed to be taken into account in considering in the exercise of the discretion.(a) There has been no prejudice to Winton. Its offers for the land were rejectedby the Lowe interests and, on the affidavit evidence, there is no realisticprospect that the Lowe interests would deal with Winton afresh, even if thedecision to grant consent were to be set aside.(b) The sale and purchase agreement has been settled and the grant of relief couldcreate significant prejudice for CDL and the Lowe interests, both of whomhave acted in good faith.(c) Winton caused or contributed to many of the problems it has belatedlyidentified. It did not engage with the OIO, nor did it put before the OIO thematerial on which it relies. It did not seek interim relief.[144] Even if we had found error by the Ministers, we would not have granted reliefto Winton.Result[145] The appeal is dismissed.92 Ririnui v Landcorp Farming Ltd, above n 68, at [132] per Arnold J.93 Turner v Allison [1971] NZLR 833 (CA) at 844 per Wild CJ and 853–854 per Turner J; andAir Nelson, above n 26, at [69]. See also Wade and Forsyth, above n 61, at 598.[146] The appellant must pay costs to the first to fourth respondents jointly, to thefifth respondents and to the sixth respondents for a standard appeal on a band A basiswith usual disbursements. We certify for second counsel for the first to fourthrespondents jointly and for the fifth respondents.Solicitors:Russell McVeagh, Auckland for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for First to Fourth RespondentsBell Gully, Auckland for Fifth RespondentsChen Palmer, Auckland for Sixth Respondents