Daisley v Whangarei District Council - [2021] NZHC 1376

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2015-488-109

[2021] NZHC 1376

BETWEEN
MALCOLM JAMES DAISLEY

Plaintiff

AND

WHANGAREI DISTRICT COUNCIL

First Defendant

WAYNE WESLEY PETERS

Second Defendant

Hearing: 8 June 2021

Appearances:

E L Smith for the Plaintiff

P Robertson and S Mautner for the First Defendant No appearance for the Second Defendant

Judgment:

10 June 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 10 June 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DAISLEY v WHANGAREI DISTRICT COUNCIL [2021] NZHC 1376 [10 June 2021]

[1] The first defendant (the Council) applies for leave to file an amended statement of defence after the close of pleadings date. The plaintiff does not oppose leave being granted in respect of many of the proposed amendments, but does oppose leave in respect of amendments to 14 paragraphs of the Council’s defence. I must decide whether to grant leave on those amendments.

Plaintiff’s claim against Council

[2] The plaintiff purchased a property near Whangarei in December 2004. There was a quarry on the property.

[3] The plaintiff alleges that he purchased the property in reliance upon existing use rights to operate the quarry. At the time he was unaware, though he discovered many years later, that the quarry was subject to a 1988 land use consent granted under the Town and Country Planning Act 1977.

[4] After the plaintiff purchased the property he alleges that he was subject to various actions by the Council to prevent or prohibit him from operating the quarry. These actions continued for a period of years.

[5] It was only near the end of that period that the plaintiff says he discovered that the 1988 land use consent authorised him to operate the quarry. The plaintiff alleges that the Council took their actions against him despite knowing of, or having copies of, the 1988 land use consent.

[6]The plaintiff pleads three causes of action against the Council:

(a)Breach of statutory duty.

(b)Negligence.

(c)Misfeasance in public office.

[7] For each cause of action the plaintiff claims that he has suffered loss. The plaintiff’s pleading of loss, which is essentially the same for each cause of action, is:

(a)But for the Council’s interference in the plaintiff’s business operations the plaintiff would have operated the quarry as a commercial quarry, extracting and selling minerals on a commercially viable basis.

(b)In particular, the plaintiff would have had the opportunity to achieve the commercial potential of the quarry.

(c)As a consequence of the Council’s interference the plaintiff has suffered loss and damage totalling about $38.6 million.

[8] The plaintiff commenced this proceeding in 2015. His claim against the Council is now found in a fourth amended statement of claim dated 16 November 2018. The Council pleaded to that claim in a statement of defence dated 21 January 2020.

The Council’s application

[9] The close of pleadings date was 7 October 2020. On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 1376
Decision Date: 10 June 2021

CaseChat Overview and Summary

The case of Daisley v Whangarei District Council [2021] NZHC 1376 involved an application by the Whangarei District Council for leave to file an amended statement of defence after the close of pleadings date. The plaintiff, Malcolm James Daisley, had purchased a property near Whangarei in December 2004, which included a quarry. Daisley alleged that he relied on existing use rights to operate the quarry, which were unknown to him at the time of purchase, and that the Council took actions to prevent or prohibit him from operating the quarry. Daisley pleaded three causes of action against the Council: breach of statutory duty, negligence, and misfeasance in public office. The Council applied for leave to amend its defence to include new allegations, such as the ownership of minerals by the Crown, and Daisley opposed leave on certain amendments.

The court had to determine whether the Council should be granted leave to amend its defence under r 7.7, considering factors such as whether it would be in the interest of justice, would not significantly prejudice the plaintiff, and would not cause significant delay. The court considered the application in light of the trial date and the time available for the plaintiff to respond to the amendments. The court granted leave for certain amendments, such as those relating to the ownership of minerals, as they were necessary for the just determination of the proceeding, while denying leave for others, such as those concerning the viability of the quarry and the cost of transporting rock, as they were either submissions or not significantly prejudicial.

Ultimately, the court granted leave for the Council to amend its defence, except for certain paragraphs, and directed that the amended defence be filed and served by a specific date. The plaintiff was given time to file a reply and supplementary briefs, and the Council was ordered to pay the costs of the application to the plaintiff. The court's decision balanced the need for the real controversy to go to trial with the potential prejudice to the plaintiff from late amendments, ultimately finding that the plaintiff would not suffer irremediable prejudice given the time available before the trial.

Orders