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Criffel Deer Limited v Chief Executive of the Ministry of Primary Industries [2024] NZHC 862 (19 April 2024)

Last Updated: 30 April 2024

JUDGMENT OF GRAU J

TABLE OF CONTENTS

Introduction [1]

The Farm Debt Mediation Act 2019 [8]
The legislative background [8]
The requirement to mediate: who, and what it applies to [14]
Appeal process under the FDMA [22]

Factual background [25]

The Wanaka deer farm [25]
Purchase of the ASB Tower in 2012 [27]
ANZ seeks repayment [30]
Proceedings commence against ANZ [42]

Criffel proposes mediation under the FDMA [46] Application for prohibition certificate and administrative review [50] Subsequent events [58]

CRIFFEL DEER LIMITED v CHIEF EXECUTIVE OF THE MINISTRY OF PRIMARY INDUSTRIES [2024] NZHC 862 [19 April 2024]

Issues on appeal [63]

Approach on appeal [67]

Admission of fresh evidence on appeal [68]

Admissibility of previous High Court proceedings [74]

Is the appeal moot? [86]
Legal principles [98]

Analysis [107]

Issue 1: did ANZ begin enforcement action begin prior to the

commencement of the FDMA? [113]

Issue 2: was there a “farm debt”? [128]

Issue 3: was Criffel’s application for the prohibition certificate

made out of time? [139]

Issue 4: was there a procedural deficiency? [142]

Result [153]

Introduction

• [1] Criffel Deer Limited (Criffel) appeals on questions of law under s 57 of the Farm Debt Mediation Act 2019 (the FDMA).¹

• [2] The FDMA provides a mediation scheme for farmers and their creditors to address farm debt issues. Since July 2020, the Act has required parties to a farm debt to engage in mediation before a creditor can take enforcement action in relation to a security interest it holds over a farm property.

• [3] In January 2023, Criffel applied under the FDMA to the Ministry for Primary Industries (the MPI) seeking a prohibition certificate against its creditor, ANZ Bank New Zealand Ltd (ANZ) that would prevent ANZ from taking enforcement action in relation to the mortgage it held over Criffel’s deer farm property in Wanaka (the Farm Property) before engaging in mediation with Criffel. Criffel’s application followed its unsuccessful proceedings against ANZ in the High Court in relation to the lending

¹ And pursuant to pt 20 of the High Court Rules 2016 (HCR).

relationship between ANZ and Criffel (and Criffel-related companies), after which ANZ advised it would appoint receivers and enforce its security over Criffel’s Farm Property.

• [4] The MPI declined to issue a prohibition certificate on the basis that ANZ had started enforcement action in relation to Criffel’s mortgage debt before the FDMA came into force, therefore the requirement for mediation prior to enforcement did not apply.

• [5] Criffel sought an administrative review of the MPI’s decision. The review confirmed the original decision on the same basis, as well as on two additional grounds put forward by ANZ: the FDMA did not apply because the debt Criffel owed to ANZ was not a “farm debt”, and Criffel’s application had been made out of time.

• [6] The overarching question in this appeal is whether the MPI was correct in confirming its earlier decision to decline to issue a prohibition certificate to Criffel. Criffel also raises concerns about natural justice in the review process; contending that the MPI’s administrative review process was flawed because Criffel never received (and so was not given the opportunity to respond to) ANZ’s submissions on Criffel’s application for review.

• [7] ANZ is not a party to this appeal. Following the MPI’s decision not to order a prohibition certificate, ANZ appointed receivers. The receivership ended following full and final settlement of the debt demanded by ANZ as a result of Criffel’s refinancing of the debt. Thus, there is no longer any banking relationship between ANZ and Criffel.

The Farm Debt Mediation Act 2019

The legislative background

• [8] It is useful at this point to set out the legislative background to provide context to the current appeal. The purpose of the FDMA is expressed in s 3, as follows:

... to provide parties to farm debt with the opportunity to use mediation to reach an agreement on the present arrangements and future conduct of

financial relations between them before an enforcement action is taken in relation to farm property.

• [9] The intention behind the establishment of the scheme was expressed by the then Minister of Agriculture at the second reading of the Farm Debt Mediation Bill (No 2) (the Bill):²

We want farmers and their families to be on a level playing field with creditors when it comes to talking about difficult and complex financial issues.

• [10] The Bill was introduced in June 2019. The FDMA’s mediation scheme formed part of a suite of initiatives implemented by the Government at the time, with a view to ensuring long term viability and resilience for farmers and the primary industries sector as a whole.³ In her introduction to the Bill, the Hon Jenny Salesa described the government’s intention to support the primary sector “in a just transition to an environmentally, socially, and financially sustainable future”. Ms Salesa commented on the centrality of farming to New Zealand’s economy, national identity and rural communities, stating that the Bill would provide for fair, equitable and timely resolution of farm debt issues with two key objectives; first, for farmers and secured creditors to meet in an equitable manner to explore options for business turn-around, and second, to provide for a timely and dignified exit for those who had few other options.⁴

• [11] The Bill’s Regulatory Impact Statement noted the complexity of farm debt and the challenging process for those seeking to resolve their debt problems. It recognised that farm debt had recently been on the rise. It also noted the vulnerability of the farming sector to factors outside of farmers’ control, such as climate change, market volatility, and disease or pest incursions.⁵ In addition, the fact that many farms operate as family businesses meant failure might result in a farmer losing both their business

2. Farm Debt Mediation Bill (No 2) 2019 (155-1); (12 November 2019) 742 NZPD (Second Reading, Damien O’Connor); the first Farm Debt Mediation Bill 2018 (62-1) was a private members bill that sought to amend the Receiverships Act 1993 to include mediation as a mandatory step before the appointment of a receiver in respect of agricultural debt. The bill was discharged following the select committee process in October 2018 on the basis that it was to be introduced again as a Government bill.
3. Ministry for Primary Industries Regulatory Impact Statement: Farm Debt Mediation (June 2019) (Regulatory Impact Statement) at 1.

⁴ (27 June 2019) 739 NZPD (First Reading, Hon Jenny Salesa).

⁵ Regulatory Impact Statement, above n 3, at 1.

and their home, potentially impacting the farmer’s wider community as a whole. The potential power imbalance between the small-scale nature of many farms as against institutional lenders also meant that there were barriers to full exploration of options to resolve debt problems.⁶

• [12] The mediation scheme was intended to provide a structured and consistent approach to resolve the debt problems of struggling farms. It was considered that the scheme would provide a low-cost solution to a material issue that would deliver both financial and social benefits to the primary industries sector.⁷ It was also decided that the MPI would administer the scheme, given that the day-to-day responsibilities of administration were cohesive with the MPI’s focus on rural communities and support for farmers.⁸

• [13] The Bill eventually received royal assent on 13 December 2019.

The requirement to mediate: who and what it applies to

• [14] Under s 11 of the FDMA, a creditor cannot commence any enforcement action in respect of a “farm debt” unless an enforcement certificate is in force.⁹ Pursuant to s 34, the MPI may grant an enforcement certificate to a creditor when a farmer has declined to mediate, or where both parties participated in the mediation process but no resolution was reached. An enforcement certificate lasts for three years.¹⁰ Sections 11 and 34 therefore operate to require parties to a farm debt to mediate before any enforcement action can be taken by a creditor over a security interest.

• [15] If a resolution is reached between the parties following mediation, the terms of the mediation agreement are binding for three years, and the parties do not have to proceed to mediation again within that period.¹¹ In circumstances where a creditor declines to participate in mediation, or does not participate in good faith, a farmer may apply to the Chief Executive of the MPI (the Chief Executive) for a prohibition

⁶ Regulatory Impact Statement, above n 3, at 1–2.

⁷ Regulatory Impact Statement, above n 3, at 2.

⁸ First Reading, Hon Jenny Salesa, above n 4.

⁹ Farm Debt Mediation Act 2019 (FDMA), ss 4, 6(1) definition of “farm debt”, and 11.

¹⁰ Section 42.

¹¹ Section 12.

certificate.¹² The granting of a prohibition certificate prohibits a creditor from taking enforcement action for six months.¹³

• [16] Section 6(1) of the FDMA sets out the key definitions prescribing who and what the Act applies to.

• [17] A “farmer” under the FDMA:

(a) means a person who is engaged in a primary production business; and

(b) includes a principal debtor under a debt that was incurred solely or principally for the purpose of conducting a primary production business (whether or not that person is engaged in the business).

• [18] A “farm debt” is defined in the following terms:

farm debt means a debt incurred by a farmer (whether as principal debtor or guarantor) that,—

(a) at the time it is incurred, is incurred solely or principally for the purpose of conducting a primary production business or any related activities; and

(b) is secured wholly or partly by a security interest in farm property (whether granted by the farmer or a guarantor).

• [19] “Farm property” is also defined in s 6(1):

farm property means any property that is used for or in connection with the primary production business or related activities of the farmer.

• [20] And “enforcement action” is defined in s 10 as follows:

10 Meaning of enforcement action

(1) An enforcement action, in relation to a security interest in farm property,—

(a) means an action that is taken to enforce a security interest in farm property following a default; and

(b) includes—

¹² Section 35.

¹³ Sections 11 and 42(1)(c).

(i) appointing a receiver of the farm property under a power contained in an instrument relating to the security interest; or

(ii) applying for an order for the appointment of a receiver of the farm property for the purpose of enforcing the security interest; or

(iii) serving a notice under section 119 or 128 of the Property Law Act 2007; or

(iv) entering into possession, or assuming control, of the farm property for the purpose of enforcing the security interest; or

(v) appointing a person to enter into possession or assume control of the farm property (whether as agent for the creditor or for the farmer) for the purpose of enforcing the security interest; or

(vi) exercising, as a creditor or as a receiver or person so appointed, a right, power, or remedy existing because of the security interest, whether arising under an instrument relating to the security interest, under a written or unwritten law, or otherwise.

(2) An action of a creditor specified in subsection (3) is to be treated as if it were an enforcement action in relation to a security interest in farm property (and, accordingly, the restriction in section 11 applies to those actions).

(3) The actions are—

(a) appointing an administrator of a farmer under section 239K of the Companies Act 1993; or

(b) applying for an order for the appointment of an administrator of a farmer under section 239L of the Companies Act 1993; or

(c) applying for an order for the appointment of a liquidator of a farmer under section 241 or 342 of the Companies Act 1993; or

(d) appointing a receiver of the whole, or substantially the whole, of the assets and undertaking of a farmer; or

(e) applying for a farmer to be adjudicated bankrupt under section 13 of the Insolvency Act 2006; or

(f) another action that is similar to any of those set out in paragraphs (a) to (e).

...

• [21] Also relevant to this appeal are the FDMA’s transitional provisions. Parts of the Act came into force on 1 February 2020, but pt 2—which includes ss 11 and 34— came into force on 1 July 2020. Although the Act applies to any farm debt, whether that debt was incurred before or after the commencement of s 11,¹⁴ the requirement for mediation and/or an enforcement certificate before a creditor can take action does not apply to enforcement action by a creditor that was commenced or was in progress before the commencement of that section (that is, before 1 July 2020).¹⁵ Nor does s 11 apply where an enforcement action is linked to another enforcement action, and that other enforcement action was commenced or was in progress before the commencement of that section.¹⁶

Appeal process under the FDMA

• [22] If the MPI declines to issue a prohibition certificate to a farmer, the farmer may, within 10 working days after notice of the decision is given, apply to the Chief Executive for an administrative review of the decision.¹⁷ Applications for administrative review are determined in accordance with ss 53 and 54 of the FDMA. In an administrative review, the Chief Executive must:

(a) review the legal basis of, and any assessment or other matters relevant to, the decision regarding the prohibition certificate;¹⁸

(b) determine the matter on the papers, unless the Chief Executive considers that it is not appropriate to do so;¹⁹

(c) consider the application and any written submissions made by either party, and any further information the Chief Executive requires;²⁰ and

¹⁴ Schedule 1, cl 1.

¹⁵ Schedule 1, cl 2(a).

¹⁶ Schedule 1, cl 2(b).

¹⁷ Section 50.

¹⁸ Section 53(1).

¹⁹ Section 53(2).

²⁰ Section 53(3).

(d) confirm the decision under review or withdraw it and substitute another in its place.²¹

• [23] The Chief Executive must determine the application for administrative review within 20 working days after the date on which it is received, although there is a power to extend this time.²² Once the application is determined, written notice is to be given to the parties.²³ An application for administrative review acts as a stay; a creditor cannot take enforcement action until it receives a notice of determination.²⁴

• [24] Under s 57 of the FDMA, a party has a right of appeal to the High Court on questions of law arising from these determinations.

Factual background

The Wanaka deer farm

• [25] Mr Michael Garnham, an experienced lawyer and commercial property investor, is a director and shareholder of Criffel.

• [26] In June 2004, Criffel acquired a deer farming operation in Wanaka with funding provided by Rabobank of approximately $5.8 million (the Debt). The Debt was primarily secured by a first ranking mortgage over the Wanaka Farm Property. Criffel also had an equipment finance facility with Rabobank. In early 2012, Criffel owed Rabobank just over $3 million.

Purchase of the ASB Tower in 2012

• [27] In February 2012, Mr Garnham began to consider purchasing an office building in Wellington known as the ASB Tower. ANZ agreed to provide finance.

• [28] That same month, ANZ entered into an approximately $35.95 million facility agreement (the 2012 Facility) with three companies of which Mr Garnham was a

²¹ Section 54(2).

²² Sections 54(1) and (3).

²³ Section 55.

²⁴ Section 56.

director and shareholder: Sams Bay Holdings Ltd (SBHL), Prime Commercial Ltd (Prime) and Criffel, with Mr Garnham as the guarantor. The purpose of the 2012 Facility was to facilitate SBHL’s purchase of the ASB Tower for approximately

$22 million.

• [29] Mr Garnham’s initial proposal to ANZ had involved borrowing 88 per cent of the purchase price of the ASB Tower. That figure was outside ANZ’s loan to value ratio (LVR). Mr Garnham therefore proposed that existing debts owed by Prime and Criffel, secured by another office tower and the Farm Property respectively, be brought into the arrangement on the basis that SBHL would be able to service the debt and provide adequate security and the LVR would then be within an acceptable range. ANZ agreed and advanced the Garnham entities around $35.95 million under the two- year 2012 Facility to purchase the ASB Tower and to repay debts owed to other creditors. The 2012 Facility resulted in the debt Criffel owed to Rabobank being repaid in full.

ANZ seeks repayment

• [30] The 2012 Facility between ANZ and the Garnham companies expired on 3 February 2014, but it was not repaid. ANZ then issued Mr Garnham with demands and notices under the Property Law Act 2007 (the PLA).

• [31] On 4 August 2015, the ASB Tower was sold. The majority of the outstanding debt owed to ANZ was repaid. The remaining debt under the expired 2012 Facility, of approximately $4.9 million, largely related to the mortgage over the Farm Property.

• [32] A settlement and standstill deed was also executed between Criffel and ANZ in August 2015, under which ANZ agreed not to enforce payment of Criffel’s remaining debt until 4 February 2016. By that date, however, Criffel had still not refinanced. Criffel’s outstanding debt to ANZ was now approximately $5.6 million. ANZ made further demands and issued further notices, including a notice on 25 February 2016 under s 119 of the PLA. The notice period in these further demands expired on 27 May 2016.
• [33] On 8 August 2016, ANZ’s solicitors wrote to Criffel noting that the demands issued under the PLA six months earlier remained outstanding. The solicitors wrote again on 1 September 2016, advising that ANZ was considering appointing receivers to Criffel. However, ANZ took no further steps to do so.

• [34] In late 2016, Mr Garnham and Mr Doug McKenzie of ANZ began negotiating a new agreement in respect of the outstanding debt. The proposal was a three-year interest only facility to replace the expired 2012 Facility agreement. Negotiations continued throughout November and December 2016 and an agreement was eventually reached although some issues remained to be agreed (the New Facility). The terms of the New Facility were drafted, but the agreement was never executed.

• [35] In particular, there was a requirement under the draft New Facility that Mr Garnham pay $1.5 million “upfront” to reduce the debt and another $1.5 million within 18 months. Differences also remained between the parties about ANZ reversing interest that had accrued and been charged. ANZ’s position was that the interest would not be negotiated. Mr Garnham was of the view that if they could not agree to reversal of the interest charges, they would need to look at mediation or another mechanism to resolve it.

• [36] On 12 December 2016, Mr McKenzie confirmed that new accounts had been established and the first $1.5 million payment safely received from Criffel, in line with the proposed terms of the New Facility. Mr McKenzie also noted that the agreement was yet to be documented.

• [37] The second payment of $1.5 million did not eventuate. On 3 December 2018, ANZ wrote to Criffel about the refinancing. The letter noted that ANZ had sought to regularise the current financing arrangements in late 2016 and early 2017, and that ANZ had forwarded a facility agreement to Mr Garnham but had not received feedback or a signed version. It also noted that Mr Garnham had agreed to a

$1.5 million debt repayment on or prior to 31 July 2018, as part of ANZ’s agreement to redocument the existing facilities, but the payment had not been made.

• [38] ANZ’s 3 December letter also advised Mr Garnham that, in the absence of an up-to-date facility agreement, the 2012 Facility remained overdue for payment. It pointed out that the debt reduction repayment was an important part of ANZ agreeing to re-document the facilities and forbearing from taking any action. ANZ advised it reserved its position to commence enforcement action in reliance on the expired 2012 Facility. It also advised again that the demands and notices issued in February 2016 remained outstanding.

• [39] On 1 July 2020, s 11 of the FDMA came into force.

• [40] Discussions continued between the parties in respect of repayment:

(a) In March 2021, Mr Garnham proposed that the parties mediate.

(b) ANZ responded that the parties had been unable to sign a new agreement since negotiations in 2016 and it wanted to withdraw from the banking relationship. ANZ also asked for further information from Mr Garnham before considering mediation.

(c) Upon receipt of this information, in July 2021, ANZ advised that it was unwilling to mediate on the basis that there was no merit in Mr Garnham’s position. ANZ again expressed its desire to cease the banking relationship between the parties.

• [41] During this period neither party made any reference to mediation under the FDMA.

Proceedings commence against ANZ

• [42] In August 2021, Mr Garnham, Criffel and other Criffel-related entities (the so- called Garnham companies) commenced proceedings against ANZ in the High Court in relation to the lending for the purchase of ASB Tower. The Garnham companies pleaded causes of action in contract, estoppel and under the Credit Contracts and Consumer Finance Act 2003 for oppressive conduct.
• [43] Justice Churchman struck out the Garnham companies’ claims, largely on limitation grounds.²⁵ His Honour found that the draft New Facility agreement prepared in late 2016 was never executed and, as a result, Criffel was liable to repay the amount owing on the original 2012 Facility on its expiration date of 31 July 2014.

Therefore, the Garnham companies had brought their claims out of time.²⁶

• [44] His Honour subsequently awarded indemnity costs to ANZ, based on its contractual right to such costs incurred in the exercise, protection or enforcement of its rights under the 2012 Facility agreement.²⁷

• [45] Following those decisions, the Garnham companies applied to the High Court for a stay of execution of both the strike-out and costs decisions, pending appeals to the Court of Appeal. On 4 November 2022, Churchman J dismissed the stay application, finding no appropriate basis on which to prevent the enforcement of ANZ’s securities.²⁸

Criffel proposes mediation under the FDMA

• [46] Meanwhile, on 2 November 2022, ANZ through its solicitors had notified Criffel that it would seek to exit the banking relationship and appoint receivers no later than 31 January 2023 if no refinancing was achieved before that day. In a subsequent letter, on 16 November 2022, ANZ confirmed it would not seek to enforce its securities provided refinancing was achieved by that date.

• [47] On 7 November 2022, Mr Garnham responded to ANZ, copying in the MPI, advising that “[g]iven recent threats of enforcement including those suggesting the appointment of receivers to Criffel ... now would seem an appropriate time to refer this matter to mediation pursuant to the [FDMA]”.

• [48] On 24 November 2022, ANZ refused the request to mediate, stating that it was “neither obliged to nor inclined to mediate”, and that its position had been made clear

25. Criffel Deer Ltd v ANZ Bank New Zealand Ltd [Strike Out] [2022] NZHC 1851, [2022] NZCCLR 8 [Churchman J Strike Out Decision] at [65].

²⁶ At [30], [55] and [61].

²⁷ Criffel Deer Ltd v ANZ Bank New Zealand Ltd [Costs] [2022] NZHC 2418 at [21].

²⁸ Criffel Deer Ltd v ANZ Bank New Zealand Ltd [Stay] [2022] NZHC 2901 at [14].

in its previous letter of 2 November 2022. ANZ then set out its view that the FDMA had no application to the dispute between the parties, because Criffel’s debt was not a “farm debt” as defined under the Act, enforcement had been underway since 2014, and the demands issued in 2016 remained outstanding.

• [49] In accordance with s 36 of the FDMA, following ANZ’s refusal to mediate, Mr Garnham had 10 working days to apply to the MPI for a prohibition certificate.

Application for prohibition certificate and administrative review

• [50] Further correspondence between Mr Garnham and ANZ followed, setting out their respective positions. The MPI was copied into these discussions. On 7 December 2022, Mr Garnham wrote to ANZ stating that ANZ did not have a good reason for declining mediation. Relevantly, Mr Garnham said:

6. Criffel owns a large deer farming operation in Wanaka, Central Otago. Particular characteristics of that operation are as follows:

• The farming property was acquired in June 2004. It comprises some 1,750 acres held in 11 freehold titles - and enjoys the leasehold benefit of a further adjacent title of some 250 acres owned by a related company.

• The property presently runs approximately 3,500 livestock, almost entirely comprising a fully recorded and DNA matched red deer stud, trophy, and velvet operation, managed by my son.

...

7. You claim that the debt in question is not a farm debt, and accordingly the Farm Debt Mediation Act 2019 has no application. You further claim that the debt was not at the time it was incurred solely or principally for the purpose of conducting a primary production business or related activity. That claim is quite frankly breathtaking.

...

9. You suggest that enforcement action has been underway since 2014 and Property Law Act notices issued in February 2016 - which the Bank currently relies upon. You also suggest that the “group proceedings” were issued on 3 August 2021 in an unsuccessful attempt to stop enforcement from continuing. Neither of those statements correctly reflect the position ...

• [51] ANZ’s solicitors responded on 15 December, stating that:

• 2.1 ... the FDMA does not apply where:

(a) The debt is not a “farm debt”, as it was not, at the time it was incurred, incurred solely or principally for the purpose of conducting a primary production business or any related activities ...

...

(c) An enforcement action was already underway at the time the FDMA came into force. Enforcement has been underway since 2014, and the demands and PLA Notices issued in 2016 remain outstanding.

...

3.2 ... we understand you to say that the alleged new agreement in December 2016 is a “farm debt”. That contention is wrong. No new agreement was entered into in December 2016 ...

• [52] On 21 December 2022, ANZ’s solicitors had also emailed the MPI (copying in Mr Garnham):

Mr Garnham has copied MPI into recent correspondence, and ANZ has copied MPI on its responses. Since then, Mr Garnham has threatened to seek a prohibition certificate from MPI, but is well out of time to do so (ANZ refused his request to mediate on 24 November). In the event an application for an extension of time is made, ANZ is able to provide a concise summary of events and its reasons why the Farm Debt Mediation Act does not apply, and its reason for refusing to mediate (which are summarised in the correspondence already copied to MPI).

• [53] On 16 January 2023, Mr Garnham formally applied for a prohibition certificate pursuant to s 36 of the FDMA.

• [54] On 31 January 2023, the MPI declined the application for a prohibition certificate. The sole reason given was that “enforcement action had been taken in relation to the debt prior to the commencement of the [FDMA]” and this constituted a “good reason” for ANZ to decline to mediate with Criffel.

• [55] On 14 February 2023, Mr Garnham applied, under s 50 of the FDMA, for administrative review of the decision not to issue a prohibition certificate.
• [56] On 3 March 2023, Bell Gully provided written submissions to the MPI in respect of the review application on behalf of ANZ. Criffel was never provided with a copy of ANZ’s submissions, nor given an opportunity to respond (the Procedural Defect). The MPI accepts that Criffel should have been provided with ANZ’s submissions and says that the failure to do so was an administrative error. The effect of this Procedural Defect is one of the grounds of appeal discussed further below.

• [57] Mr Garnham’s application for administrative review was unsuccessful. Notice of the determination was given on 16 June 2023.²⁹ The reasons provided by Mr Nick Story (on behalf of the MPI and the Chief Executive) are brief and are set out in full, as follows:

Following review of your application for administrative review under section 51 of the Farm Debt Mediation Act 2019 (attached) and the legal basis and assessment by which the original decision was made, I have determined that the original decision shall be confirmed and your request for a Prohibition Certificate be declined.

The reason for the decision is as follows:

• The application for a Prohibition Certificate was outside of the timeframe prescribed in the Farm Debt Mediation Act 2019 (section 36).

• The debt was not incurred, solely or principally for the purpose of conducting a primary production business or related activities as described in the Farm Debt Mediation Act 2019 (section 6).

• Enforcement action commenced prior to the commencement of the Farm Debt Mediation Act 2019 (schedule 1, part 1, section 2).

Subsequent events

• [58] On 21 June 2023, ANZ appointed receivers to Criffel. The receivership concluded on 8 August 2023 when Criffel refinanced and ANZ was fully repaid.

• [59] Criffel had concerns about the review confirming the original decision on two additional grounds. It appears that Mr Garnham suspected the MPI had engaged in unilateral discussions with ANZ about the review. As a result, Mr Garnham made a

29. The time for reaching a decision on the application was extended several times due to health issues and the impacts of Cyclone Gabrielle on the MPI’s operations.

request on 20 June 2023 to the Ombudsman pursuant to the Official Information Act 1982 (the OIA) regarding any undisclosed discussions between the MPI and ANZ.

• [60] Criffel received a response from the Ombudsman on 25 September 2023. The response included some information suggesting that the MPI had engaged in discussions privately with ANZ, such as emails suggesting that MPI staff had met with ANZ’s solicitors to discuss the application for review. Importantly, as a result of his OIA request, Mr Garnham received ANZ’s submissions on the administrative review that it had earlier sent to the MPI. This was the first time he had seen the submissions.

• [61] Mr Garnham then wrote to counsel for the MPI and requested further information. He received a response from the Crown Law Office on 13 December 2023 stating that the MPI has carried out further review of its files and no further relevant documents had been located.

• [62] Mr Garnham maintains that he has not received a satisfactory response to his request for information.

Issues on appeal

• [63] As noted above, Criffel seeks to exercise its right of appeal to this Court on questions of law arising out of the MPI’s confirmation on administrative review of its decision not to order a Prohibition Certificate.

• [64] The first issue for determination is whether the appeal is moot, given that Criffel and ANZ no longer have any banking relationship. If the appeal is moot, the question arises whether the Court should nevertheless exercise its discretion to determine the appeal.

• [65] If the Court proceeds to determining the appeal, the issues are:

(a) Do the FDMA’s transitional provisions apply to prevent Criffel from relying on the requirement to mediate on the basis that ANZ had already started enforcement action prior to the commencement of the FDMA?

(b) Did Criffel owe ANZ a “farm debt”, as defined in the FDMA?

(c) Did Criffel apply for a prohibition certificate out of time?

(d) Was there a procedural deficiency in the MPI’s administrative review process by failing to provide ANZ’s written submissions to Criffel before making its decision?

• [66] Two preliminary issues also arise in the appeal:

(a) Should two affidavits filed by the MPI be admitted as fresh evidence on this appeal?

(b) Are the decisions of Churchman J in the preceding litigation between Criffel and ANZ inadmissible in the present appeal by virtue of s 50 of the Evidence Act 2006?

Approach on appeal

• [67] General appeals proceed by way of rehearing.³⁰ This Court is required to come to its own view on the merits of a case, and the weight it gives to the decision of the MPI is a matter for its own judgement. The appellant, Criffel, bears the onus of satisfying this Court that its decision should differ from the decision under appeal. If the Court comes to a different conclusion to that reached by the MPI, it is entitled to take its own view, but it is only if the Court considers that the appealed decision is incorrect that is justified in interfering with it.³¹

Admission of fresh evidence on appeal

• [68] The first of the preliminary issues on appeal relate to the admissibility of the affidavits of Mr Gwyn David Morgan and Ms Ashleigh Ellen Rogers, MPI staff who were involved in the decision-making process on Criffel’s applications for a

³⁰ HCR, r 20.18.

31. See the discussion in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5].

prohibition certificate and for administrative review.³² Self-evidently, because Mr Morgan and Ms Rogers were involved in the decision-making process, their affidavits were not before the MPI at the time the administrative review was determined. The Chief Executive now seeks leave to adduce these affidavits on appeal.

• [69] The affidavits are relevant to the issue of the private and so-called “undisclosed” discussions between the MPI and ANZ prior to MPI’s determination on the review. They are also relevant to Criffel’s arguments based on natural justice and procedural deficiency.

• [70] Mr Morgan’s affidavit discusses two telephone calls with representatives from ANZ or their solicitors and asserts that the merits of Criffel’s administrative review application were never discussed. He also explains why a representative from ANZ, Ms Lina Lim, was copied into communications about the timeframe for determining Criffel’s application. Ms Rogers deposes as to the discussions she had with Mr Garnham and ANZ’s solicitor’s during the course of decision-making. She also says that these phone calls were administrative in nature and did not discuss the merits of Criffel’s application.

• [71] The test for adducing fresh evidence on appeal is well known. The conventional requirements are that the further evidence must be fresh, credible and cogent. Evidence is not considered fresh if it could, with reasonable diligence, have been produced at the first instance.³³

• [72] Ms Verbiesen for Criffel argued that, while the affidavits contain admissible content, the issue is with their timing. The MPI sought to adduce this evidence after Criffel had filed its submissions and evidence. Mr Orpin-Dowell for the MPI argued that it would be of assistance to the Court to have the MPI’s explanation of what had happened, given the nature of the issues before the Court on appeal.

³² Both affidavits are dated 5 February 2024.

³³ Aotearoa International Ltd v Paper Reclaim Ltd [2006] NZSC 59 at [8].

• [73] I agree with Mr Verbiesen that while the affidavits are fresh, cogent and reliable, they are very late. Their lateness results in Criffel’s inability to respond to their contents, when Criffel initially raised the issues that are the subject of the affidavits back in November 2023. Nor in my view are the affidavits crucial to the appeal, when issues concerning natural justice and procedural deficiency can be sufficiently explored without them, and their admission would not change the ultimate outcome on those issues. Admitting the affidavits thus risks expanding the scope of the discussion more than is necessary to determine the issues on appeal. For those reasons, I decline leave to admit the evidence of Mr Morgan and Ms Rogers.

Admissibility of previous High Court proceedings

• [74] As to the second preliminary issue, Criffel submits that the decisions of Churchman J in the 2022 High Court proceedings between the Garnham companies and ANZ are inadmissible, pursuant to s 50 of the Evidence Act 2006. Ms Verbiesen says it only became apparent on reading the submissions filed by the MPI on the appeal before this Court that the MPI placed some reliance on Churchman J’s decisions to support its position that ANZ had started enforcement before the FDMA was in effect. She submits that the MPI was not entitled to take Churchman J’s findings into account, nor is this Court on appeal.

• [75] Section 50 of the Evidence Act provides:

50 Civil judgment as evidence in civil or criminal proceedings

(1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.

(1A) Evidence of a decision or a finding of fact by a tribunal is not admissible in any proceeding to prove the existence of a fact that was in issue in the matter before a tribunal.

(2) This section does not affect the operation of—

(a) a judgment in rem; or

(b) the law relating to res judicata or issue estoppel; or

(c) the law relating to an action on, or the enforcement of, a judgment.

• [76] Justice Brewer in Dorbu v Lawyers and Conveyances Disciplinary Tribunal

explained the rationale behind s 50 of the Evidence Act in the following way:³⁴

Put simply, if a court or tribunal has an independent obligation to determine whether alleged facts are proved or not, it cannot discharge that obligation by accepting without inquiry the findings of another court or tribunal as to the existence of those facts. To do that would be to abdicate its responsibility to determine the facts for itself.

• [77] For Criffel, Ms Verbiesen submits s 50 makes clear that a finding of fact in other litigation cannot be relied on to prove the existence of that fact in another proceeding. She observes there is other evidence that was provided to the MPI and to this Court on appeal. She says the point underlying the rule is that the decision-maker should use the best evidence available, not the findings of another court, which is essentially hearsay evidence from a different dispute involving different parties.

• [78] The MPI’s response is that s 50 (and indeed the Evidence Act itself) does not apply to MPI’s decision-making process, given that process is not a “proceeding” as defined in s 4 of that Act. In the alternative, if s 50 does apply, the MPI submits that Criffel is estopped from relitigating the issues or findings of facts determined by Churchman J. The High Court has already found that there was no new facility between Criffel and ANZ in 2016; instead, the 2012 Facility remained in place. That issue is therefore an issue estoppel for ANZ and Criffel, who were the same two parties involved in the MPI process.

• [79] Similarly, the MPI submits the High Court had made findings on the nature of the relationship between ANZ and Criffel, and the decision-maker in the MPI process was entitled to use those findings. Mr Orpin-Dowell argues that Criffel would otherwise be permitted to relitigate the exact same matter in a different context when the nature of the same banking relationship between the same parties had already been determined. In his submission this is a very different situation to those the rule is designed for (defamation being an obvious example), where a person who was not involved in earlier court proceedings seeks to use a previous court decision to prove facts in a different proceeding.

34. Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381, 11 May 2021 at [21].

• [80] I note here I had been surprised at the absence of any reference to the proceedings before Churchman J in the submissions filed by Criffel, given those proceedings appeared to be a relevant part of the chronology of its banking relationship with ANZ in this case, and particularly when Mr Garnham first raised the prospect of mediation under the FDMA only days after that litigation ended. Ms Verbiesen explained that their omission was the result of their perceived inadmissibility.

• [81] I accept the MPI’s submission that its decision-making process was not a “proceeding” as defined in s 4 of the Evidence Act because it did not involve a proceeding conducted by a court. Thus s 50 does not apply.

• [82] Turning to the question of issue estoppel; it is a doctrine that prevents a litigant in one proceeding questioning a necessary legal holding or factual finding about an issue in a previous proceeding between the parties. The purpose is to prevent repeated arguments about the same substantive issues. Generally speaking, issue estoppel will not apply where the parties in a subsequent proceeding are not the same as those in an earlier proceeding.³⁵

• [83] As I observed above, I would have thought that the decisions of Churchman J were highly relevant to the decision-making process the MPI was required to engage in. The relationship between ANZ and Criffel and their relevant rights and obligations considered by the MPI are the exact issues that had very recently been determined by Churchman J. Estoppel would, therefore, prevent Criffel relitigating before the MPI the factual findings of Churchman J about the banking relationship between the parties. As well, the MPI would have been bound by the decisions of the High Court and the factual findings made therein.

• [84] I also agree with the MPI that this Court, on an appeal proceeding by way of rehearing, ought to have regard to all of the information that was before the decision- maker.³⁶ If it was appropriate for the decision-maker in the MPI process to have regard

³⁵ Craig v Stringer [2019] NZHC 1363, [2019] 2 NZLR 743 at [11] and [27]; Shiels v Blakeley

[1986] NZCA 445; [1986] 2 NZLR 262 (CA) at 266.

36. Russell v Taxation Review Authority [2011] NZCA 310 at [40]; Kavanagh v Chief constable of Devon and Cornwall [1974] QB (CA) 624 at 629 and 634-635.

to the decisions of Churchman J, it is also appropriate that this Court is able to have regard to these decisions.

• [85] In any case, in considering the appeal, I have had regard to the other evidence provided about the nature of the relationship between the parties to come to my own conclusion as to the relationship between ANZ and Criffel at the relevant time. In particular, I have considered the direct evidence to determine whether a new facility agreement was in place from late 2016 or whether ANZ was enforcing its securities pursuant to the 2012 Facility under which Criffel was in default.

Is the appeal moot?

• [86] Because ANZ no longer holds a security over Criffel’s farm assets, ANZ and Criffel no longer maintain any banking relationship. This is common ground between the parties and raises the question of whether the issues advanced in this appeal are now moot.

• [87] As noted above, the purpose of the FDMA is to encourage parties to a farm debt to attempt to mediate any issues before enforcement action is taken over a particular security. If there is no farm debt between the relevant parties as defined in s 6, the Act does not apply.

• [88] Similarly, s 50(1)(a) sets out those who may apply for administrative review of a decision regarding the issuance of prohibition certificates under the FDMA, being a farmer or a creditor affected by a decision about whether to issue a certificate:

50 Decisions subject to administrative review

(1) The following people may apply for administrative review of the following decisions:

(a) a farmer or a creditor affected by a decision on whether to issue a certificate under subpart 4 of Part 2: ...

• [89] Following refinancing, Criffel is no longer a farmer “affected by a decision” not to issue a prohibition certificate. The review decision it appeals against relates to a debt owed to ANZ that no longer exists.
• [90] Furthermore, there is the issue of relief in this case. The FDMA does not provide for any specific remedies that the High Court may grant in the circumstance of a successful s 57 appeal, thus, r 20.19 of the High Court Rules 2016 (the HCR) applies:

20.19 Powers of court on appeal

(1) After hearing an appeal, the court may do any 1 or more of the following:

(a) make any decision it thinks should have been made:

(b) direct the decision-maker—

(i) to rehear the proceedings concerned; or

(ii) to consider or determine (whether for the first time or again) any matters the court directs; or

(iii) to enter judgment for any party to the proceedings the court directs:

(c) make any order the court thinks just, including any order as to costs.

(2) The court must state its reasons for giving a direction under subclause (1)(b).

(3) The court may give the decision-maker any direction it thinks fit relating to—

(a) rehearing any proceedings directed to be reheard; or

(b) considering or determining any matter directed to be considered or determined.

(4) The court may act under subclause (1) in respect of a whole decision, even if the appeal is against only part of it.

(5) Even if an interlocutory or similar decision in the proceedings has not been appealed against, the court—

(a) may act under subclause (1); and

(b) may set the interlocutory or similar decision aside; and

(c) if it sets the interlocutory or similar decision aside, may make in its place any interlocutory or similar decision the decision- maker could have made.

(6) The powers given by this rule may be exercised in favour of a respondent or party to the proceedings concerned, even if the respondent or party did not appeal against the decision concerned.

• [91] Because the banking relationship between ANZ and Criffel has ended, Criffel cannot apply for prohibition certificate against ANZ, therefore there would be no utility in sending the decision back for reconsideration or to direct a particular decision to be made.

• [92] It is notable that Criffel did not specify any relief it was seeking when it filed its notice of appeal. Justice Palmer issued a minute on 16 January 2023 directing the parties to make submissions on the issue of mootness and relief.³⁷ Criffel’s position now is that the Court has broad powers under r 20.19, and so a meaningful remedy can be granted.

• [93] By way of relief, Criffel seeks:

(a) at minimum, that the Court reverse the MPI’s administrative review decision on the basis that it was wrong in law, and declare that the only course of action available to the MPI was to issue a prohibition certificate;

(b) that the Court order the MPI to conduct a full investigation into the circumstances giving rise to the MPI’s unilateral communications with ANZ, and the failure to provide Criffel with ANZ’s submissions or with an opportunity to respond;

(c) that the Court order an inquiry into damages and/or costs associated with the Procedural Defect; and

(d) that the MPI pay Criffel’s costs of the appeal on an indemnity basis.

• [94] While Criffel appears to accept the appeal is moot in the sense that the Court could not order the MPI to re-decide Criffel’s application for a prohibition certificate or to make an order to such effect, it points out that the Court can make other orders; in particular a determination is sought that the MPI ought to have ordered a prohibition

37. Garnham v Attorney-General HC Wellington CIV-2023-425-68, 16 January 2024 (Minute of Palmer J).

certificate on the basis that there was a “farm debt” as defined in s 6 and there was no extant enforcement in progress when s 11 came into force. If such declarations were made it could mean ANZ’s actions in appointing receivers were void, giving rise to potential action against ANZ (something that Criffel made clear to ANZ immediately after the MPI issued its administrative review decision).

• [95] Criffel also submits that the appeal raises important and novel questions of law that are of considerable importance, given this is the first appeal to the High Court pursuant to s 57 of the FDMA. Criffel contends the appeal raises important questions about the process that ought to be followed by the MPI in making decisions under the Act, as well as issues about the definition of “farm debt” and the transitional provisions.

• [96] In addition, Criffel submits that the Court has jurisdiction to hear an otherwise moot appeal where there has been serious procedural unfairness, as it says has occurred in this case. Criffel relies on the decision in Baker v Hodder, where the Supreme Court found that the Court of Appeal should have heard an appeal concerning procedural unfairness even though the appeal was moot.³⁸ Criffel says that, where there are admitted breaches of natural justice in the present case, the same result should follow.

• [97] The MPI’s response is that the appeal is moot in the sense that any relief cannot influence the issuance of a prohibition certificate. The MPI accepts mistakes were made in terms of natural justice, with ANZ’s submissions not having been provided to Criffel. The MPI also accepts the points made by Criffel with reference to Baker v Hodder and that the Court has discretion to hear an otherwise moot appeal. The MPI has no objection to this Court hearing the appeal when it will vindicate Criffel’s concerns that its position was not considered by the MPI in its decision-making process. The MPI also points out the appeal has a reasonably narrow ambit turning on discrete legal issues of whether the transitional provisions apply and whether Criffel owed ANZ a “farm debt”.

³⁸ Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [33] and [74].

Legal principles

• [98] The starting position in New Zealand is that courts will not hear an appeal “where the substratum of the present litigation between the parties has gone and there is no matter remaining in actual controversy and requiring decision”.³⁹ The Supreme Court in R v Gordon-Smith confirmed that “mootness is not a matter that deprives a court of jurisdiction to hear an appeal”, rather, the question of whether the appeal should nevertheless be heard is a discretionary one of “judicial policy”.⁴⁰ In that case, the question before the Court was whether jury vetting practices in operation at the time were lawful, but the outcome of the appeal would have had no effect on the defendant in respect of whom the application was brought. As such, the Court had to consider whether to grant leave to appeal despite the appeal being moot.

• [99] In ultimately granting leave to appeal, the Supreme Court endorsed the following passage of Lord Slynn in R v Secretary of State for the Home Department, ex parte Salem:⁴¹

... in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se ...

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so ...

• [100] The Supreme Court held that the above principle in Salem is not confined to issues of public law and an appellate court may exercise its discretion to hear an appeal that would otherwise be moot where it raises questions of general and public importance.⁴² However, the courts are still to proceed with caution; the constitutional role of the courts is to develop the law by deciding cases put before them and “[t]hey

³⁹ Finnigan v New Zealand Rugby Football Union Inc (No 3) [1985] NZCA 111; [1985] 2 NZLR 190 (CA) at 199.

⁴⁰ R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [16].

41. R v Gordon-Smith, above n 40, at [15]; citing R v Secretary of State for the Home Department, ex parte Salem [1999] UKHL 8; [1999] 1 AC 450 at 456–457.

⁴² At [24].

should be careful not to appear to be doing so gratuitously by giving what amount to advisory opinions”.⁴³

• [101] In Baker v Hodder, the Supreme Court further considered the issue of when the court should exercise its discretion to hear a moot appeal.⁴⁴ The Bakers and the Hodders were joint shareholders and directors of a farm company. Issues arose, and the Bakers and the Hodders fell out over whether to sell the farm. The Hodders applied for relief under s 174 of the Companies Act 1993, which applies when the affairs of a company are being conducted in a way that is oppressive, unfairly discriminatory, or unfairly prejudicial to the applicant. The High Court accepted that the matter was urgent and ordered a truncated hearing at a teleconference that the Bakers had not been given notice of. The High Court then found in the Hodders’ favour, requiring the Bakers to sign a resolution that the farm be sold, and refused a stay of relief pending appeal. The Bakers appealed to the Court of Appeal who declined to hear the matter on the basis that it was moot.

• [102] The Supreme Court concluded that the Court of Appeal ought to have heard the appeal. Although the Court expressed there was no single “test” governing the exercise of the discretion, it said that:⁴⁵

... in light of the considerations underlying the policy of restraint, a decision to hear a moot appeal should be made only in exceptional circumstances. These might be found in the circumstances of the particular case (for example, serious procedural unfairness at the first hearing) or the broader public interest (for example, where an important legal point is raised).

• [103] The Supreme Court considered the appeal raised an important issue of law, especially in relation to whether the remedy ordered by the High Court Judge was appropriate, and whether the truncation of the proceedings was fair in circumstances where the outcome of the case was final (rather than interlocutory).⁴⁶ Although the Court seemed to suggest that a relevant consideration was whether the outcome of the appeal could have an impact on potential legal actions the parties might take in the future, it also held that whether the Bakers would pursue further proceedings was

⁴³ At [25].

⁴⁴ Baker v Hodder, above n 38.

⁴⁵ At [33].

⁴⁶ At [42]–[43].

speculative, and thus it did not reach a firm conclusion as to whether the High Court decision would have been an impediment to such proceedings.⁴⁷

• [104] Further guidance can be found in the Court of Appeal’s decision in Attorney- General v David.⁴⁸ There, the Court granted leave to the Attorney-General (as intervener) to appeal against a decision of the Employment Court concerning the rights of parties appearing before the Employment Relations Authority to cross-examine witnesses. The Court referred to its earlier decision in New Zealand Employers Federation Inc v National Union of Public Employees, which noted that, where there is no longer a live issue between the parties—and in having regard to the wider implications of a decision—it would have been necessary to consider whether the application for leave to appeal might reasonably have been viewed as analogous to raising an issue involving a public authority as to a question of public law.⁴⁹

• [105] The Court in David explained that courts should adopt a cautious approach to hearing an otherwise moot appeal “in order to ensure that the answer to proposed abstract questions of law are not too fact dependent to provide any useful guidance”.⁵⁰ The question for the Court was thus:⁵¹

... whether a general question posed in relation to future conduct permits of a categorical answer or whether the limits and conditions can only be defined adequately and safely by reference to particular facts.

• [106] Finally, an appellate court will also be wary of exercising its discretion in hearing a moot appeal where the lower court or tribunal has not made any factual findings or findings on questions of law in respect of which an appeal could be

⁴⁷ At [41].

⁴⁸ Attorney-General v David [2001] NZCA 336; [2002] 1 NZLR 501 (CA).

⁴⁹ At [10]; citing New Zealand Employers Federation Inc v National Union of Public Employees (Nupe) [2001] NZCA 139; [2001] ERNZ 212 (CA).

⁵⁰ At [11].

⁵¹ At [8]; The Court in David also approved of the following passage of Viscount Haldane LC in Attorney-General for the Province of British Columbia v Attorney-General for the Dominion of Canada [1913] UKLawRpAC 51; [1914] AC 153 (PC) at 162: “[n]ot only may the [position] of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied”.

pursued. It is also possible to hear an appeal on one issue only, even where multiple issues are put before the court.⁵²

Analysis

• [107] I accept the submission of the MPI that the appeal is now moot. The appellant also accepts that is the position, at least regarding the issuance of a prohibition certificate. The issues raised in this appeal are now academic. As set out above, except in exceptional circumstances, this is enough for this Court to dismiss the appeal. The question is therefore whether this Court should nevertheless exercise its discretion to determine the substantive appeal.

• [108] First, I am not necessarily convinced that this appeal raises matters of public importance in the way that Criffel suggests it does. Although the application of the FDMA mediation scheme will be of interest to farmers and their creditors, they are two limited categories of individuals. In contrast, cases where the discretion to hear a moot appeal has been exercised generally concern rights protected under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993 (including natural justice regarding the propriety of court procedure) which are of general application.⁵³ I am not satisfied that this appeal raises a matter of public importance in the same way that these examples do.

• [109] That said, I accept (as does the MPI) that the Court may be more willing to exercise its discretion where Criffel is raising natural justice concerns. That this is a circumstance in which the discretion can be exercised is confirmed in Baker v Hodder, as above. Here the MPI accepts that the Procedural Defect occurred when it should have provided Criffel with ANZ’s submissions before it made its decision on the administrative review. But MPI’s acceptance nevertheless leaves Criffel with the concern that it was not given an opportunity to be heard before the MPI’s decision was made, as well as the suspicion there was contact between the decision maker and the opposing party that it was not privy to.

52. See Hutchinson v A [2015] NZCA 214, [2015] NZAR 1273; and also, the discussion in Attorney- General v Smith [2018] NZCA 24, [2018] 2 NZLR 899.

⁵³ Such as Gordon-Smith, David, Attorney-General v Smith and Hutchinson v A.

• [110] Where there has been a failing in terms of natural justice, there are a small number of discrete legal issues to determine, the parties have prepared for the appeal with comprehensive submissions, and counsel were similarly well prepared to argue these issues on the day, I consider it appropriate in the circumstances for the Court to exercise its discretion to determine the appeal.

• [111] I note here, however, I accept the MPI’s submission that Criffel’s stated desire to (potentially) pursue further proceedings against the MPI or ANZ does not provide a reason why it is necessary to hear this appeal. That is because:

(a) The judgments of Churchman J in the 2022 High Court proceedings found no wrongdoing on the part of ANZ. Although that decision did not consider issues under the FDMA, regardless of the outcome of this appeal, Criffel would already be precluded from pursuing any further actions which touch upon decisions arrived at by Churchman J.

(b) If Criffel seeks to pursue a claim of breach of statutory duty against the MPI, the outcome of this appeal has no bearing on the establishment of that tort in any subsequent hearing. Criffel can establish that the duty has been breached at that hearing; it does not need to have been established in this one.

• [112] Most importantly, as the Supreme Court explained in Baker v Hodder, whether Criffel will pursue further proceedings is speculative and therefore is not overly determinative of the issue of mootness.

Issue 1: did ANZ begin enforcement action begin prior to the commencement of the FDMA?

• [113] As above, the basis of the original decision declining to issue a prohibition certificate was that ANZ had commenced enforcement action on its security over the Farm Property before the FDMA was in force, meaning that the requirement to mediate before commencing such action did not apply.
• [114] Although ANZ has issued numerous demands and notices on Criffel since 2014, the relevant enforcement action for the purpose of this appeal is ANZ’s demand under s 119 of the PLA (the Demand).⁵⁴ The Demand was served on Criffel on 25 February 2016, over four years before 1 July 2020 when the mediation requirements under the FDMA came into force. It does not appear to be in dispute that ANZ took this enforcement action and issued the Demand in February 2016.

• [115] This issue turns on whether there was a new loan agreement in place between ANZ and Criffel following their negotiations in late 2016 in respect of the New Facility, such that ANZ cannot rely on any enforcement action that commenced before that time.

• [116] Criffel relies on the leading Australian authority of Waller v Hargreaves Secured Investment Ltd (Waller) which concerns the Farm Debt Mediation Act 1991 in New South Wales (the NSW Act).⁵⁵ In that case the issue was whether successive farm debts created a new farm mortgage requiring fresh attempts at mediation before a creditor could take enforcement action. The High Court of Australia held that each successive loan constituted a new farm debt, so that once a second loan agreement was entered into, the creditor could no longer rely on the mediation completed in respect of the first loan agreement. Likewise, a third loan agreement created a new farm debt, re-triggering the obligation to undertake mediation.⁵⁶

• [117] I agree the Waller case stands for the proposition that a creditor could not seek to rely on any demands if the parties subsequently entered into a new loan agreement after the demands were issued. That is because the demands would apply to a different (former) debt. I also agree that once parties enter into new loan agreements, the new agreement would supersede any previous agreements and obligations contained therein. As expressed in Waller,⁵⁷ this construction is also consistent with the “remedial” policy of the FDMA.

⁵⁴ As per s 10(1)(iii) of the FDMA.

55. Waller v Hargreaves Secured Investments Ltd [2012] HCA 4, (2012) 245 CLR 311. The Farm Debt Mediation Act 1991 (NSW) (the NSW Act) is written in similar terms to our own FDMA.

⁵⁶ At [16].

⁵⁷ Waller v Hargreaves Secured Investments Ltd, above n 55, at [16].

• [118] Justice Churchman has already found that no new loan agreement was ever formally executed.⁵⁸ Criffel does not suggest otherwise. Criffel contends that the New Facility was nevertheless in effect and the Waller principle operates. Once Mr Garnham made the “upfront” payment of $1.5 million to ANZ in December 2016—which was one of the terms of the proposed New Facility—ANZ had accepted it was in place. The Demand became invalid at that point. ANZ took no steps to enforce the Demand or take any other enforcement action. It was not until December 2018, two years after the New Facility was in place, that ANZ wrote to Criffel about the debt, prompted by Mr Garnham’s failure to make the second agreed $1.5 million payment.

• [119] Although I accept Criffel’s argument that the parties to some extent operated as if a new agreement was in place, Waller makes it clear that the approach set out there only applies where a new farm debt is formally documented by a new loan agreement. If settlement/refinancing discussions only result in an adjustment to an already existing farm debt (such as extending a term to pay), it would leave that farm debt in place, as well as any enforcement actions issued in respect of that debt.⁵⁹

• [120] In this case, however, I do not agree with Criffel’s suggestion that the evidence establishes Criffel and ANZ entered into a new loan agreement in late 2016 despite the New Facility never being formally executed. In my view the evidence establishes the parties were negotiating, but there remained areas of disagreement, particularly in relation to ANZ’s ability to charge penalty interest. The correspondence suggests that no agreement was reached in December 2016, but rather the parties agreed to continue the discussions in the new year. ANZ then sent draft loan documentation, which Mr Garnham did not respond to, nor did he make the second $1.5 million payment that would have been due under the New Facility in June 2018. In particular, I do not accept that Mr Garnham’s first $1.5 million payment in December 2016 indicated the start of a new agreement in relation to Criffel’s debt to ANZ:

(a) In September 2016, Mr Garnham had sought to “regularise” Criffel’s facilities and agreed to make a $1.5 million payment to reduce debt,

⁵⁸ Churchman J Strike Out Decision, above n 25, at [30], [55] and [61].

⁵⁹ Waller v Hargreaves Secured Investments Ltd, above n 55, at [57].

suggesting terms for a new loan agreement which included a four-year term and reversal of interest charges.

(b) On 11 October 2016, ANZ proposed terms of a new loan agreement for a six-month term, subject to receiving $1.5 million in debt reduction. That proposal included what was said to be a “final decision” by the Bank that it was unable to offer any reversals of interest charges. The Bank also advised it would withdraw the 25 February 2016 demands “[s]hould the new loan proceed to draw down by 01 November 2016”. I note ANZ had also advised in early October 2016 that the demands stood and had not been withdrawn.

(c) Towards the end of October 2016, ANZ advised that it had approved an extension of the repayment term from six to twelve months. It was reviewing Mr Garnham’s request for a three-year term. The Bank’s position on reversal of interest was unchanged, although it was noted that the draw down date of 1 November would not be achievable.

(d) By the beginning of November, Mr Garnham considered the parties were making progress. He supported the compromise of a three-year term from 1 November 2016 with a further capital reduction of

$1.5 million within 18 months, or the loan terminating from that date. He disagreed with the Bank’s view on reversal of interest and suggested mediation or another mechanism to resolve the issue.

(e) On 9 November, ANZ advised it would offer a three-year term with the commencement date to be the day the new loan was drawn down. The agreed $1.5 million reduction could be lodged at any time pending redocumentation being drafted, agreed, and signed. The Bank would not agree to reverse interest or to enter into mediation on the subject.

(f) On 8 December, Mr Garnham thanked ANZ for confirming agreement to the new loan and amended terms, said he had instructed the processing of the $1.5 million repayment “tomorrow”, and the parties

reserved their positions on the disputed interest with a view to resuming discussion on that issue after Christmas. He invited ANZ to have the new draft loan agreement prepared by Bell Gully.

(g) Receipt of the $1.5 million repayment was confirmed on 12 December. ANZ advised it had opened two new accounts which had been “quarantined” for the time being, as they related to the outstanding issue of interest. In keeping with what ANZ described as “the intended new loan facility––although yet to be documented” ANZ confirmed interest margins and said it awaited draft documentation from its solicitors.

• [121] In my view what is apparent is that, although Mr Garnham had met one of the pre-conditions for refinancing by repaying $1.5 million of Criffel’s debt, no agreement had been reached on a significant term that related to $216,000 of interest and nor is there any evidence of ongoing efforts post-Christmas 2016 to resolve that issue. A loan agreement was drafted and provided to Criffel. There was no response, and nor could it have been signed with a key term remaining to be agreed. Mr Garnham’s failure to make the second $1.5 million payment under the proposed, or intended, New Facility (or engage with ANZ about it, either before or after it was due) also suggests he was not operating under a new agreement in respect of a new debt.

• [122] The result is that Criffel and ANZ were still operating under the 2012 Facility agreement as far as this appeal is concerned. Because ANZ issued the Demands in respect of that agreement back in February 2016, well before the commencement of the FDMA, I accept the MPI’s submission that s 11 and the Act’s requirement to mediate did not apply.⁶⁰

• [123] In its written submissions, Criffel also raised a number of alternative arguments which it said result in ANZ not being able to rely on the Demand. Criffel argued that ANZ’s claim for payment was time barred, and that a purposive approach to the FDMA would suggest Parliament cannot have intended to bar farmers from mediation where

⁶⁰ In some ways Criffel advancing this argument seeks to challenge the decision of Churchman J that no second loan agreement was entered into. To the extent that Criffel does make such a pleading, it seems to me that this may very well constitute an abuse of process.

enforcement action was taken seven years prior to a request for mediation (given the Act contemplates that enforcement certificates and mediation agreements operate for three years).

• [124] Those submissions were not pursued in oral argument. In any case, I agree with the MPI that the transitional provisions in the FDMA are concerned with the fact of enforcement action being taken before July 2020 (and any further action linked to that earlier action). I do not consider that the purpose and scheme of the Act contemplates the MPI having to determine complex limitation defences to enforcement actions by creditors.

• [125] I also accept the MPI’s submission that the Limitation Act 2010 does not apply to notices issued under s 119 of the PLA. Notices under s 119 are not a claim made in a civil proceeding, nor are they a money claim. Accordingly, the Limitation Act has no bearing on the validity of such notices.⁶¹ The PLA itself does not set out any expiry date for notices under s 119, and the Court has held that such notices are not time limited.⁶²

• [126] Although I agree in principle with Criffel’s suggestion that the FDMA would not intend a perpetual ability for creditors to rely on enforcement action on a particular farm debt, I am not persuaded that Parliament intended a three-year limitation on enforcement action taken by a creditor prior to the Act’s commencement. The transitional provision has no time limit. As above, the requirement to mediate simply does not apply to enforcement action that started before 1 July 2020.

• [127] Accordingly, because ANZ had started enforcement action prior to the commencement of the FDMA, it was not required to mediate with Criffel before taking enforcement action. My conclusion on this issue is dispositive of the appeal. However, given there were additional grounds on which the review was declined, I will also comment on these grounds.

⁶¹ Limitation Act 2010, ss 4 definition of a “claim”, 10(a)(ii) and 12(1).

⁶² FTG Securities Ltd v Bank of New Zealand [2016] NZHC 2827 at [30]–[32].

Issue 2: was there a “farm debt”?

• [128] As noted above, one of the additional reasons given by the MPI in confirming its original decision was that the debt with ANZ did not constitute a “farm debt” as per the definition in s 6 of the FMDA. For ease of reference, the definition is set out here again:

farm debt means a debt incurred by a farmer (whether as principal debtor or guarantor) that,—

(a) at the time it is incurred, is incurred solely or principally for the purpose of conducting a primary production business or any related activities; and

(b) is secured wholly or partly by a security interest in farm property (whether granted by the farmer or a guarantor)

• [129] Put simply, Criffel’s position is: “once a farm debt, always a farm debt”. When ANZ acquired its security interest over the Farm Property in 2012, it was subject to the Debt that had already been incurred with Rabobank in 2004. The nature of the Debt did not change. ANZ would also have clearly been on notice that it was acquiring a “farm debt”, when the Debt it subsumed also included debts over farm equipment.

• [130] The definition of “farm debt” makes it clear that the point at which to assess whether a debt is a “farm debt” is at the time it is “incurred”. It is common ground that the original funding by Rabobank in 2004 created what would have been a “farm debt” under the FDMA if the Act had been in force at the time. There can be no question that, when the Farm Property was first acquired in 2004, the Debt was incurred with Rabobank for the purpose of purchasing a farm and conducting a primary production business there. It does not matter that Mr Garnham himself was not (and still is not) the “farmer” of the Property in the orthodox sense of the word. He is still a “farmer” for the purposes of the FDMA where he is the primary debtor of a debt that was incurred solely or principally for the purpose of conducting a primary production business on farm property.⁶³

• [131] However, Criffel’s debt owed to ANZ was incurred in 2012 under the 2012 Facility. The key question then is whether, in 2012, that debt to ANZ was again

⁶³ As the definition in s 6 of the FDMA provides.

incurred “solely or principally for the purpose of conducting a primary production business or related activities”.

• [132] I cannot accept Criffel’s submission that the debt to ANZ incurred in 2012 remained a “farm debt”. Although I agree that the debt refinanced with ANZ included a security interest obtained by ANZ over the Farm Property, that does not change the fact that, at the time the debt to ANZ was incurred, it was not being incurred for the sole or principal purpose of conducting a primary production business. Instead, the debt was being incurred so that Garnham companies could obtain lending to finance the purchase of a commercial property in Wellington, which is a wholly different purpose. The Farm Property was only brought into the arrangement so that it could be available as security to meet ANZ’s LVR requirement. The fact that the Farm Property continued to operate as a deer farming business was incidental to the purpose of the debt to ANZ being incurred.

• [133] Criffel has cited authorities from New South Wales in respect of the NSW Act. These are of interest, but they do not assist in a material way when the definition of a “farm debt” under the NSW Act does not include the requirement that the debt must be incurred “solely or principally” for the purpose of conducting a primary production business or related activities.⁶⁴ However, for completeness, I note these cases below.

• [134] Criffel relies on the case of Constantinidis v Equititrust Ltd, in which the Supreme Court of New South Wales set out that:⁶⁵

• [13] In speaking of a debt “incurred ... for the purposes of the conduct of a farming operation” and directing attention to the purposes for which the debt was incurred, the definition of “farm debt” necessarily pays attention to purposes existing at the past time when the debt was incurred. But that, it seems to me, is the only past aspect to which attention is directed. ...

• [14] ... the aim of the [NSW] Act is to protect persons who are for the time being farmers from action under mortgages which for the time being exist over properties that are for the time being farm properties—but only where the secured debt incurred in the past was obtained for farming purposes. Applying the approach I consider to be correct, a person who is today a farmer and whose farm property stands today as security for a debt will be protected if the purpose of the original incurring of the debt was a relevant farming

64. Under s 4(1) of the NSW Act, a “farm debt” means “a debt incurred by a farmer for the purposes of the conduct of a farming operation that is secured wholly or partly by a farm mortgage”.

⁶⁵ Constantinidis v Equititrust Ltd [2010] NSWSC 299.

purpose (and whether or not the person was then a farmer), but not if the original incurring was for some non-farming purpose; ...

• [135] In that case, the debtors had incurred the debt to purchase properties— including some properties operating as farms—to be on-sold for profit. The Judge concluded that the debt incurred was not a “farm debt” for the purposes of the NSW Act, given that the debt was incurred for the advantageous re-sale of the land, and that this finding was “in no way affected by the fact that some farming activities were conducted on the land after the acquisition and up to the present”.⁶⁶ Although Constantinidis is helpful in confirming that the focus is on the debtor’s ultimate goal when acquiring the property and incurring the indebtedness, the case does not squarely address the issue of incurring a new debt in the context of refinancing.⁶⁷ The focus of the enquiry in this case is the new lending from ANZ in 2012 which, as I have found, was to secure lending to purchase ASB Tower and thus was not for the sole or principal purpose of conducting a primary production business.

• [136] In Re Sundara, the Supreme Court of New South Wales considered the question of whether various companies met the definition of “farmer” under the NSW Act at various points in time.⁶⁸ The Court took an approach whereby it considered whether the relevant company was conducting farm operations at the date at which refinancing occurred, not the date at which the initial loan was entered into. Where properties were not being used as farms at the time of refinancing, the companies were not considered “farmers” for the purposes of the NSW Act.⁶⁹ This approach in Re Sundara accords with the approach in Waller, as discussed above, suggesting that the point at which a debt is “incurred” and must meet the definition of a “farm debt” is each time a new loan or refinancing agreement is entered into.⁷⁰

• [137] In the present case, given refinancing occurred for the sole purpose of enabling the Garnham companies to purchase ASB Tower, the refinancing of the Debt with

⁶⁶ At [42].

⁶⁷ I also note that the NSW Act covers a narrower class of debtors/farmers than the FDMA. This is because the definition of a “farmer” in the NSW Act does not include a person who is the principal debtor to farm debt; it must be a person who is solely or principally engaged in the farming operation (see NSW Act, s 4(1) definition of “farmer”).

⁶⁸ Re Sundara Pty Ltd [2015] NSWSC 1694.

⁶⁹ See at [87] and [103].

⁷⁰ Waller v Hargraves Secured Investments Ltd, above n 55.

ANZ is not “farm debt” for the purposes of the FDMA. It makes no difference that the Farm Property has always (and continues to be) used as a deer farm. The definition set out in s 6 of the Act is clear that qualification as a “farm debt” is linked to the purpose for which the debt itself was incurred, not the current use of the secured property. Similarly, it makes no difference that the original Debt to Rabobank would have met the definition of a “farm debt” when that particular debt was discharged at the time Criffel refinanced with ANZ. Nor does it make any difference that, when the ASB Tower was sold, most of the remaining debt owed to ANZ involved only the Criffel Property. This does not change the nature of the debt, nor does bear on why the debt with ANZ was incurred.

• [138] My conclusion on this issue would also be dispositive of the appeal.

Issue 3: was Criffel’s application for the prohibition certificate made out of time?

• [139] Criffel also challenges the second additional ground in the review decision, being the MPI’s finding that Criffel’s application for a prohibition certificate was made later than 10 working days after ANZ’s refusal to mediate.⁷¹ I note that this time period may be extended “for as long as is reasonably necessary if the chief executive considers an extension is reasonably required in the circumstances”.⁷²

• [140] The chronology is set out above. Strictly speaking, Mr Garnham applied outside the 10-working day period. Despite that, it is clear the MPI nevertheless proceeded with the application as if it had been made in time. In circumstances where it was within the MPI’s power to extend the time for the application, Mr Garnham was entitled to think that the MPI had accepted his application for consideration.

• [141] Accordingly, I find that this aspect of the MPI’s determination on the review was incorrect.

⁷¹ FDMA, s 36(1).

⁷² FDMA, s 36(3).

Issue 4: was there a procedural deficiency?

• [142] Criffel alleges that MPI’s failure to provide Criffel with a copy of ANZ’s submissions opposing the application for administrative review constitutes a significant procedural error such that the decision to decline the administrative review is invalid. Criffel’s position is that, as a result of the Procedural Defect, the MPI failed to undertake its own independent deliberation of the application and also failed to provide Criffel with the opportunity to respond to ANZ’s submissions. Criffel further submits that the Procedural Defect led directly to the errors of law that constitute the other grounds of appeal.

• [143] Criffel also complains about what it alleges were private discussions between the MPI and ANZ including, inter alia, a meeting between MPI staff and ANZ’s solicitors on 19 April 2023 and a phone call between MPI staff and ANZ’s solicitors on the same day. Criffel says it was not notified of either the meeting or the phone call, nor have any notes or records of the discussions been provided to it. Criffel only became aware of this engagement between ANZ and the MPI as a result of Mr Garnham’s OIA request, as explained above.

• [144] The MPI’s position is that the failure to provide Criffel with ANZ’s submissions was an administrative error, but that any unfairness or breach of natural justice is cured by this appeal.⁷³ That is because the appeal is by way of rehearing and, as set out above, the Court is required to reach its own conclusions based on the materials presented to the decision-maker. A breach of natural justice does not provide an independent basis for allowing the appeal if the Court nevertheless accepts there was no error in MPI’s decision. In other words, the breach of natural justice point becomes redundant, and the appeal turns on the Court’s determination of the other issues of law in this case.⁷⁴ But even if the natural justice issue does arise for decision, it is doubtful the Procedural Defect gave rise to any prejudice sufficient to amount to a breach of natural justice.⁷⁵

73. City Financial Investment Co (New Zealand) Ltd v Transpower New Zealand Ltd [2018] NZHC 1488 at [90]; Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [109].
74. City Financial Investment Co (New Zealand) Ltd v Transport New Zealand Ltd, above n 73, at [90].

⁷⁵ See Ali v Deportation Review Tribunal [1997] NZAR 208 at 220 to 221.

• [145] Criffel also submits that the breach of natural justice, the Procedural Defect and the MPI’s unilateral communications with ANZ together mean that the decision to decline the administrative review “strays well into the territory of apparent bias”. Apparent bias arises when a decision-maker has a personal or professional relationship with a party or witness, a prejudice against or preference towards a particular party or result, or a predisposition leading to a pre-determination of the issues.⁷⁶ The applicable two-step test is that formulated in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (Saxmere) is:⁷⁷

(a) first, the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and

(b) second, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.

• [146] The standard to be adopted in any case is that of a “fair-minded lay observer”. A decision-maker may be considered to have suffered from apparent bias if “a fair- minded lay observer might reasonably apprehend that the [decision-maker] might not have brought an impartial mind to the resolution of the question ...”.⁷⁸ The question is one of possibility, not probability, but the possibility of bias must be “real and not remote”.⁷⁹

• [147] I note here that, when a farmer or creditor applies for an administrative review, the Chief Executive must allow the respondent party an opportunity to make a written submission.⁸⁰ No statutory right of reply is provided to the applicant.⁸¹

⁷⁶ Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at [25.5.1]

⁷⁷ Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 71, [2010] 1 NZLR 35 [Saxmere] at [4]; citing Ebner v Official Trustee in Bankruptcy [2000] HCA 62, (2000) 205 CLR 337 [Ebner] at [8].

78. Saxmere, above n 77, at [127]; this test is adapted from the formulation of the High Court of Australia in Ebner, above n 77, at [3] and [33].

⁷⁹ Saxmere, above n 77, at [4].

⁸⁰ FDMA, s 52.

⁸¹ I note too that, in contrast, the FDMA does not provide a statutory right for a respondent party to make submissions on applications for either enforcement or prohibition certificates.

• [148] The MPI accepts that Criffel should have received a copy of ANZ’s submissions. However, this does not change the fact that Criffel must demonstrate a procedural deficiency such that the MPI decided the matter other than on its legal and factual merits (where bias is being alleged), or otherwise show that the MPI has made an error causing material prejudice giving rise to a breach of natural justice. I do not consider that Criffel can establish either.

• [149] Criffel’s principal issue is with the fact that the review decision included two further grounds which were absent in the original decision.⁸² Criffel appears to suggest that the MPI’s review decision on the additional grounds was a wholesale adoption of ANZ’s submissions that occurred without the MPI exercising any independent thought and/or as a result of private discussions with ANZ.

• [150] I do not accept Criffel’s submission. ANZ’s position was abundantly clear in the correspondence leading up to Mr Garnham’s application for a prohibition certificate that, in its view, the relevant debt was not a “farm debt” under the FDMA. Similarly, ANZ had already made its position clear that enforcement action had been underway since 2014 and therefore was on foot before the commencement of the Act. ANZ’s solicitors also informed Mr Garnham of their position that his application would be out of time. Accordingly, ANZ did not raise anything, nor did the MPI decide anything, that had not already been raised prior to Mr Garnham’s formal application for a prohibition certificate. There was therefore no material prejudice to Criffel. The process was not unfair.⁸³

• [151] Similarly, I am not satisfied there is evidence of private discussions between the MPI and ANZ that give rise to any suggestion of impropriety. As above, the review decision was made on three grounds that were well known to both the ANZ and Criffel. Two of those grounds (that ANZ had raised and Criffel had responded to) I have found to be correct in law, and the third incorrect ground was procedural only. In any event,

⁸² The prohibition certificate was declined on the sole ground that enforcement action had commenced prior to the FDMA coming into force, and the decision declining administrative review included the two further grounds that the debt was not a “farm debt”, and the application for a prohibition certificate had been made out of time.

⁸³ Ali v Deportation Review Tribunal, above n 75, at 220.

the “undisclosed discussions” that Criffel refers to appear to be administrative in nature and fall far short of disclosing any apparent bias and/or other improper purpose.

• [152] Although best practice would have been for the MPI to engage with both parties when questions or discussions arose in respect of the application process, I am not satisfied there was any material prejudice to Criffel. Nor do any procedural failings lead to a conclusion that the Chief Executive thereby failed to apply the relevant law and consider the merits of Criffel’s application. I do not consider a fair- minded lay observer would reach such a conclusion either.

Result

• [153] For the reasons set out above, the appeal is dismissed. Costs should be agreed between the parties, otherwise, I see no reason to depart from the regular 2B scale costs to be awarded to the MPI. If costs cannot be agreed, parties are to file short memoranda on the issue (no more than five pages, not including any schedules) within 10 working days of this decision for determination on the papers.

Grau J

Solicitors:

Thomas Dewar Sziranyi & Letts for Appellant Crown Law Office, Wellington for Respondent