Fox owner: End litigation saga

Josephine Grierson, shown at the Auckland High Court last year, wants to get on with business. Picture / Brett Phibbs

A defendant in a High Court challenge against the North Shore's Fox retail outlet centre is encouraging shopping mall owner Westfield NZ not to challenge the outcome, saying she wants an end to a "litigation saga".

Josephine Grierson, joint owner of Fox with partner Dominion Funds, said she was delighted with Justice Graham Lang's decision in the High Court at Auckland on January 31, when he failed to back appeals by Westfield and Northcote Mainstreet.

The appeals were brought against Fox's owner Discount Brands, which got a second back-up resource consent from North Shore City Council to allow it to stay open. Last year, the Supreme Court declared Fox's first resource consent illegal.

Now Grierson wants to get on with business and hopes to bring new tenants into the Fox centre on Northcote's Akoranga Drive. Westfield and Northcote won their legal challenge to Fox's first resource consent, a matter decided in the Supreme Court earlier last year.

"It is up to Westfield to decide whether they will appeal or not," Grierson said of the latest High Court decision. "I hope that they will see that it is a waste of everyone's time and money pursuing the matter further."

Westfield chief John Widdup was not revealing his hand when asked about the decision late last week.

"At this time Westfield has not seen the judgment," he said. "When we do, we will make an appropriate comment."

Grierson said the latest 297-point decision set all the issues out in a distinctive manner.

"The Lang judgment is extremely detailed and crystal clear on all the key issues. It clarifies some of the areas that the Supreme Court talked about without reaching a conclusion on, such as who an affected party is.

"It should reassure council that their decision-making authority is not being usurped by the courts," she said.

New tenants would soon open shops at Fox but it was too soon to say who would be coming and when.

"We do expect changes to the tenancy mix over the next few months as the benefits of the judgment filter through and people realise we are not going to get closed down.

"It will be a great relief to be able to spend money marketing the business instead of on legal fees."

Justice Lang said there was merit in Discount Brands' position that Fox's closure would remove a valuable amenity for North Shore residents.

"They point out that the Discount Brands site was formerly a derelict building that served no useful purpose whatsoever," he said.

"Transformation of the site has arguably created a facility that improves the amenities available on the North Shore. It certainly means that those who wish to shop at a discount outlet no longer have to travel from the North Shore to Rodney or Onehunga."

If he set aside the second resource consent, he said this would result in the closure of 46 businesses.

"This would result in a loss of employment for approximately 150 people. Although neither Discount Brands nor its tenants could have entered into this activity unaware of the potential for the resource consent to be set aside, nevertheless the consequences of any such order are such that the court would have to take into account those effects before making an order," he said.

Fox history (Since 2003)

Discount Brands gets non-notified resource consent.

Westfield NZ and Northcote Mainstreet win High Court challenge.

Discount Brands appeals and wins in the Court of Appeal.

Westfield and Northcote have this overturned by Supreme Court.

Discount Brands gets second non-notified resource consent.

Westfield and Northcote lose High Court appeal.