Daisley v Whangarei District Council - [2018] NZHC 2211

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2015-488-000109

[2018] NZHC 2211

BETWEEN
MALCOLM JAMES DAISLEY

Plaintiff

AND

WHANGAREI DISTRICT COUNCIL

First Defendant

WAYNE WESLEY PETERS

Second Defendant

Hearing: 16 July 2018

Appearances:

E L Smith for the Plaintiff

F Divich and A Harpur for the First Defendant N Batts for the Second Defendant

Judgment:

27 August 2018

JUDGMENT OF HINTON J

[re Application for leave and summary judgment on the issue of liability against the First and Second Defendants]

This judgment was delivered by me on 27 August 2018 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Tailored Legal Solutions Ltd Heaney & Partners, Auckland Rice Speir, Auckland

DAISLEY v WHANGAREI DISTRICT COUNCIL [2018] NZHC 2211 [27 August 2018]

[1] The plaintiff seeks summary judgment against the first defendant (the Council) in respect of two causes of action and as to liability only.

[2] The plaintiff also seeks summary judgment against the second defendant (Mr Peters) in respect of one cause of action and as to liability only.

[3] As the plaintiff did not make an application for summary judgment at the time of filing the statement of claim, he first applies for leave of the Court in each instance, as required by r 12.4(2) of the High Court Rules 2016.

Background

[4] From 24 December 2004 until 30 January 2010, the plaintiff was the owner of a property at Knights Road, where a quarry was located which was operating at the time of the plaintiff’s purchase.

[5] Before settlement of the purchase, the plaintiff obtained a LIM from the Council which made no reference to any land use consent for the quarry operation.

[6] The plaintiff continued to operate the quarry through a company controlled by him, but was issued a series of abatement notices, infringement notices and an application for an enforcement order by the Council, during the period from 5 February 2005 through to August 2009.

[7] During this period of time, the Council made positive assertions that the operation of the quarry on the Knights Road property was an unconsented and unlawful use of the land.

[8] The plaintiff objected to the notices contending, inter alia, that he and his predecessor had paid rates consequent upon Council mineral extraction rate notices and that the quarry had been long operational. The plaintiff did not respond to the notices by saying that there was a land use consent, as presumably the plaintiff had no reason to consider such a consent existed.

[9] Ultimately, the plaintiff ceased the quarrying operation, as a result of the enforcement actions taken against him.

[10] On 21 September 2009, following the cessation of quarrying, a land use consent dated 1988, issued under the provisions of the Town and Country Planning Act 1977, was located at the offices of the Council by an employee of the second defendant.

[11]The above facts are not disputed.

The claim…

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: [2018] NZHC 2211
Decision Date: 27 August 2018

CaseChat Overview and Summary

The plaintiff, Malcolm James Daisley, sought summary judgment against the Whangarei District Council and Wayne Wesley Peters in respect of multiple causes of action, primarily based on the unlawful issuance of abatement notices and the cessation of a quarrying operation. The plaintiff's key contention was that the Council's actions led to the loss of profits from the quarry. The plaintiff's claims against the Council included breach of statutory duty, negligence, and misfeasance in public office. Against Mr. Peters, the plaintiff sought damages for breach of contract, negligence, misfeasance, and breach of fiduciary duty, arguing that Mr. Peters failed to provide proper advice regarding potential actions against the Council. The primary legal issues involved whether the plaintiff's claims had merit and if there were any arguable defences to these claims.

The court held that summary judgment was inappropriate in this case for several reasons. Regarding the Council, the court found that there were arguable defences to the plaintiff's claims, including the limitation period and the potential for contributory negligence. Additionally, the court noted that the claim for breach of statutory duty under the Resource Management Act 1991 might not be valid, as there was no established case law supporting such a claim. The court also highlighted the novel nature of the alleged duty of care the Council might owe to the plaintiff. Similarly, concerning Mr. Peters, the court found insufficient evidence to support a claim for summary judgment, particularly regarding the instructions given to Mr. Peters and the timeline of events. The court concluded that the claims required a full airing of the evidence, including oral discussions, and therefore, summary judgment was not appropriate.

The court dismissed the application for leave to bring a summary judgment application against both the Council and Mr. Peters. The defendants were granted entitlement to costs against the plaintiff, with instructions for the parties to attempt to resolve the costs issues amicably before filing formal submissions.

Orders