Application to the Supreme Court of New Zealand
Application to the Supreme Court of New Zealand
At a recent meeting it was resolved to seek leave to appeal to the Supreme Court, against decisions of the Court of Appeal in December last year (2015).
The case is about ratepayers’ legal rights.
The application to the Supreme Court was filed on Friday 12 February 2016. it is attached below for you to read, and to share with anyone (anywhere in the world) you think might be interested.
This is a matter of wide public interest and concern, It affects you if you live in NZ.
It represents both a past miscarriage of justice and the potential for huge future miscarriages of justice, and it is commercially significant.
You will see that the application is in two sections. Section 1 is the legal argument we will advance.
Section 2 is where we set out the philosophical/ethical/moral basis of our request.
Until the court decisions we are appealing were made, it was anybody’s guess what the law meant. Now we know, and if it is really the case we are all doomed to serfdom.
It was also previously assumed that when Parliament passed (retrospective) validating legislation it applied only to what was actually in the Kaipara Validation of Rates (and Other Matters ) Act. The courts think otherwise, and don’t consider Parliament is mature enough to know what it is doing.
A decision of the Court of Appeal “binds” all lower courts, so the result of our (failed) appeal is now the law of the land.
From now on, if Auckland Council (say) borrows a billion dollars without going through any of the required steps, ratepayers cannot question what they have done.
If that has not got the wind up you, try this: There is a cowboy bank called the Local Government Funding Agency, (the brainchild of the same lawyer who wrote the Kaipara Validation Bill). Nearly every council in the country has joined. Some are pending. A decision any council to borrow money puts you in the frame as a property-owning ratepayer to guarantee the debt. Yes, Council A borrows so much money that it falls over, the ratepayers of every other council in the LGFA will have to fork out to bail that council out, and VICE VERSA!!
Councils have been told by the snake oil salesmen that being in the LGFA will give them access to cheap money. Yeah Right! Moneylenders from here to the Temple that Christ visited who are absolutely ecstatic at what they have been given by the New Zealand Courts. Totally risk-free lending, with a security over every single piece of property in the country that none of the property owners ever knew about- until now.
And please tell your wealthy debt-free friends that they will be first cab off the rank. When the lenders, and given recent Auckland law changes those lenders could easily be Chinese, or any other foreign nationals, come knocking, they will go after unencumbered (mortgage-free) properties first- it’s called low-hanging fruit in Wall Street parlance. Some people reading this will have experienced the terrible consequences of standing guarantor for someone who fails. Most guarantors enter into the guarantee of their own free will. This time round your council and the government have made you the guarantor without your even having a say in the matter.
This is why we have asked the Supreme Court to intervene. It comes down to this: Is the Rule of Law still the basis of conduct in New Zealand, or has it already been suborned to foreign vested interests?
We need some additional financial assistance to fund this. We do not expect the costs to exceed $40,000- Supreme Court proceedings are very focused things. If you can help, and if you know anyone else who might help- even with $10.00 please either send a cheque made out to MRRA to P.O.Box 225 Mangawhai 0540, Please provide a phone number so we can call and thank you.
Alternatively, please make a payment to 38 9012 0318164 00. Put in a phone number and name.
We would very much welcome feedback, comments, and questions. Please call Bruce, phone or txt to 02108180162, or email to this address. Or email to [email protected]
Thanks for reading and listening.
CHAIR, Mangawhai Ratepayers and Residents Association Inc.
To the Registrar of the Supreme Court
The Mangawhai Ratepayers’ & Residents’ Association Incorporated, the appellant in the proceeding identified above, gives you notice that it applies for leave of the Supreme Court to appeal to the Court against the decision of the Court of Appeal in Mangawhai Ratepayers and Residents Association Incorporated v Kaipara District Council  NZCA 612 (Harrison, Miller & Cooper JJ) which was delivered on 17 December 2015.
The specific grounds of our proposed appeal are:
The Court of Appeal at  and  found that sections 117 to 120 of the Local Government Act 2002 (“LGA”) empower a local authority to rate in order to repay a loan, even a loan for an unlawful project. This finding is wrong in law because:
The Court of Appeal failed to distinguish between the two fundamentally different relationships involved, namely the voluntary contractual relationship between a lender and a local authority (borrower) on the one hand, and the relationship imposed by statute between a local authority and its ratepayers, on the other hand.
The Court of Appeal’s interpretation is inconsistent with the text and the purpose of the provisions, expressed in the Parliamentary record.
The respondent’s power to rate contained in the Local Government (Rating) Act 2002 (“LGRA”) can only be exercised pursuant to a specific legislative power and for a lawful purpose. In this case, the borrowings were illegal.
At , the majority of Court of Appeal err in interpreting the undisputed enforceability of the loan to include a guarantee of repayment.
The legislation has not, by implication, given power to local authorities to override the statutory rights of ratepayers.
The majority decision of the Court of Appeal at  effectively makes the protected transaction provisions privative, overriding the requirements of the LGA and the general law. This extinguishes the High Court’s exercise of its supervisory jurisdiction over the lawfulness of rates.
Contrary to what the Court of Appeal has said at  and , the meaning proposed by the appellant is a legitimate interpretation and is one that is more consistent with section 27(2) of the New Zealand Bill of Rights Act 1990 than the one adopted by the Court of Appeal. The appellant’s interpretation should have been considered and adopted.
The Court of Appeal’s decision has removed the obligation on a local authority to comply with the LGA, LGRA, and general law when rating to fund borrowing, therefore encouraging laxity in compliance with the law.
The Court of Appeal found at  that the Kaipara District Council (Validation of Rates and Other Matters) Act 2013 (“Validation Act”) validates all actions of the Kaipara District Council in relation to the rates, leaving no room for residual illegalities not mentioned by the Validation Act. This finding misinterprets the text and purpose of the Validation Act and is wrong in law because:
Until rates are set aside by a court of competent jurisdiction, they are valid. Validation legislation does not validate rates but rather precludes any effective legal challenge to those rates (and other matters) based on the irregularities set out in the legislation.
The legislative history, text, and purpose of the Validation Act all point to a narrower interpretation, namely that it precluded legal challenge of only those irregularities carefully set out in the preamble to the Validation Act.
Rates unlawfully set and assessed in relation to the illegal borrowings, and the failure to consult with ratepayers, were not explicitly identified and validated by the Validation Act.
The Validation Act should be interpreted consistently with the common law presumption that fundamental rights are not intended by Parliament to be overridden by legislation, especially by implication alone.
The Court of Appeal was wrong to hold at  that there was no viable rights-consistent alternative interpretation.
The appellant’s interpretation is legitimate and is more consistent with the New Zealand Bill of Rights Act 1990 and so should have been considered and adopted.
The Court of Appeal erred at  to  in awarding costs to the respondent. The appeal was a matter of public interest and the appellant acted reasonably in the conduct of the appeal within the meaning of rule 53F(e) of the Court of Appeal (Civil) Rules 2005.
The Supreme Court should give leave to hear the proposed appeal because:
The appeal involves a matter of general or public importance:
Sections 117 to 120 of the LGA are relied on by every local authority in New Zealand and their lenders, in relation to practically all borrowing.
Despite the significance of the protected transaction provisions, the only case law on them is the decisions of the lower courts in this case.
There is a need to clarify the degree of protection that is afforded to lenders under protected transactions, and the liability, if any, of ratepayers for the debts covered by protected transactions, especially where the transactions are unlawful.
The Court of Appeal’s decision will guide future conduct of local authorities, lenders and ratepayers. The effect of the Court of Appeal’s decision is that a local authority does not have to comply with statutory requirements set out by Parliament.
Following the Court of Appeal’s decision, local government loan arrangements will now be made regardless of the lawfulness of the process followed in establishing the loan and will not be challengeable.
Given the explosion in local government spending and debt, these provisions will assume greater significance over time. Clarity of the law is important.
There have been a number of instances in recent years of validation legislation in the same form as the Validation Act.
It is important to clarify the correct approach to interpretation of retrospective legislation because it removes a citizen’s right to effective judicial review (and in this case an extant application for judicial review). The extent to which that right is curtailed must be clear.
The decisions of the lower courts in this case are wrong as several fundamental legal principles have been ignored or incorrectly applied. The decisions leave important questions unanswered and raise unconsidered consequences.
There was a miscarriage of justice in that the lower courts’ interpretation removed the appellant’s right to effective judicial review on grounds not supported by law.
The case is of general commercial significance:
It relates to a debt of around $60 million lent by commercial lenders to the respondent.
It is of significance to commercial lenders generally in that they have cumulatively lent billions to local authorities around the country.
Several fundamental legal principles have been ignored or incorrectly applied.
The appeal is only on questions of law.
It is necessary in the interests of justice for the Court to hear and determine the proposed appeal.