Westfield anti-competitive, says Fox

Westfield was trying to reinforce its controlling position as the North Shore's dominant retail landlord by its bid to close the Fox Outlet Centre, the High Court at Auckland heard yesterday.

Opening the defence against the battle to shut down the $15 million centre, Fox lawyer Alan Galbraith said Westfield was using the courts for "anti-competitive" purposes, which was banned by the Resource Management Act.

If Westfield won, the consequences for Fox would be dire. Its resource consent would be ruled invalid, shutting it down and placing the business in liquidation.

The third day of the hearing before Justice Raynor Asher opened with North Shore City Council lawyer Bill Loutit vigorously defending the council's decision not to notify two resource consents for Fox to open.

Westfield and Northcote Mainstreet are taking the case against the council, Fox's owner Discount Brands Outlet Centres and businesswoman Josephine Grierson's Discount Brands.

Westfield owns and manages 11 malls, including those at Takapuna and Glenfield, and will soon start building a $130 million, 7ha mega-centre at Albany which will be New Zealand's largest mall and its third on the Shore.

Galbraith said the Fox centre had no adverse effects on other shopping centres in the area, as Westfield had claimed.

If Westfield won the case, Fox could apply for a new resource consent, which could be notified, but would face the grim prospect of Westfield objecting and perhaps going to the Environment Court. All that could take 18 months, with the right to appeal to the High Court, he said.

"The threat of such delay and associated uncertainty is what drives away tenants and consequently undermines the confidence of the financiers of the outlet centre. Once shut because of the loss of consent, there would be no business left. For Westfield, that achieves precisely the elimination of a competitor which is the impetus for these proceedings."

Westfield won its first challenge against Fox's first resource consent in the Supreme Court. It is now challenging a second back-up consent Fox got from the council.