The judgement, which became public yesterday, provided extensive detail about a key sticking point in securing the former raceway’s future.
It also essentially upheld Seed Housing director Gary Todd’s argument his company had a legitimate interest in a slice of land there.
The final race at Forbury Park in St Kilda was held in July 2021 and the 12.2ha property became surplus to the racing industry’s requirements the following month.
There have since been negotiations between Harness Racing New Zealand (HRNZ) and the Forbury Park Trotting Club about the planned sale of the venue.
However, progress has been slow amid uncertainty about how aspects of the Racing Industry Act 2020 should be interpreted.
It has also been complicated by moves made by the trotting club and Mr Todd before the legislation came into effect.
The court judgement focused on 6400sq m of land, which Seed Housing agreed to buy from the club for $1.33 million, plus GST.
On June 29, 2020, the club and Mr Todd "confirmed satisfaction of the due diligence conditions and agreed that to the extent that any other conditions affecting the agreement remained unsatisfied they had been waived".
This occurred the day before the new Act was given royal assent. HRNZ said this suggested a scheme "concocted to evade the clear dictate of Parliament".
It argued the deal was void and under the Act the club needed its written approval to transfer racing venue land.
"As the title was not transferred prior to the inception of the Act, the transfer will now require [Harness Racing’s] consent."
It refused to give such consent.
Seed Housing sought a caveat to protect its interest and HRNZ then argued the caveat should be removed "so the land can be transferred to it under the Act’s surplus venue provisions", the judgement stated.
HRNZ was unaware the club might have sold part of Forbury Park until late July 2020.
By that time, Mr Todd had paid the deposit and he then applied for subdivision and other consents from the Dunedin City Council, which granted them in September 2020.
HRNZ lodged a notice against the title of the land the same month and Mr Todd’s lawyers learned of this in January 2021.
The judgement referred to "attempts to resolve the matter pragmatically, including by Seed also acquiring the balance of the land which had become available for sale as a result of Forbury Park being closed as a racing venue".
"However, those discussions were not successful."
HRNZ said it decided not to approve the transfer of land to Seed Housing because the sale did not align with the purposes of the Act, "that the value of racing property is retained by the industry and applied for maximum industry benefit".
The High Court found Seed had established an equitable interest in the land sufficient to support its caveat.
Justice Owen Paulsen ruled the caveat "shall not lapse", but the order was conditional on Seed Housing starting proceedings to determine "whether Harness Racing validly withheld its consent to a transfer of the land".
In a statement sent to the Otago Daily Times this week, Mr Todd said his company remained committed to providing affordable and adaptable housing in South Dunedin.
"Seed Housing has been successful in sustaining its caveat conditional on further substantive proceedings being filed and it complied with those court orders last week."
