Harvey v Tasman District Council

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA632/2019
[2020] NZCA 91

BETWEEN	MICHAEL HENRY HARVEY Applicant
AND	TASMAN DISTRICT COUNCIL Respondent

Court:	Gilbert and Courtney JJ
Counsel:	Applicant in person E B Moran for Respondent
Judgment: (On the papers)	6 April 2020 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.
BThe application to amend the application for leave to appeal is granted.
CThe application for leave to bring a second appeal is declined.
DThe applicant is to pay costs to the respondent for a standard application on a band A basis and any usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

The applicant, Michael Harvey, is a property developer. On 7 October 2011, he obtained from Tasman District Council (the Council) a resource consent for a subdivision of a block of land at Mapua for residential purposes. On 1 November 2011, Mr Harvey’s agent, Mr Aubrey of Aubrey Survey & Land Ltd, prepared and signed 12 separate water service applications on a Council standard form, each relating to a particular lot in the new subdivision. Mr Harvey also signed these forms the following day, on 2 November 2011, as the person liable to pay the connection costs. The application for one of the lots (by way of example) relevantly reads as follows (with the italicised portions completed by Mr Aubrey apart from the section signed by Mr Harvey):
tasman
district council
WATER SERVICE APPLICATION
(As at 1 July 2010)
To the Utilities Manager
I wish to apply for a water service as detailed below.    Job No 46437
DETAILS OF PROPERTY TO BE CONNECTED: (refer to rate assessment)
Valuation Reference    Pt 19380 30538
Name of Owner         M. H. Harvey
Property Address for connection         34 Jessie St. Mapua
SERVICE REQUIRED (Costs and Details See Overleaf)[1]
(Please tick box)
A        Urban Supplies
[1]The details overleaf read as follows: 1452 (GST inclusive), plus work and administration costs (GST exclusive).
(i)       20mm metered domestic connection þ
…
COMMENT ON ANY DETAILS:
Connection required for proposed Lot 1 of subdn RM 110294
CONNECTION FEE:
LIABILITY FOR CONNECTION COST AND/OR FEE (to be completed by person liable)
I M H Harvey agree to pay the connection cost and/or fee when invoiced by Council, and annual rates/charges thereafter
Signature   “M H Harvey”       Date     2/11/11
Address for Invoice     Box 57 Mapua
NAME AND ADDRESS OF APPLICANT
Applicant Name         M H Harvey c/o Aubrey Survey & Land Ltd
Address  66 Oxford St. Richmond.
Signature        “M Aubrey” Contact Phone No 5446970 Date 1/11/11
as agent for M.H. Harvey
Three days before these applications were signed by Mr Harvey, title to the land was issued in the name of Split Atom Marketing Ltd (Split Atom), a company of which Mr Harvey was the sole director and shareholder.
The Council contracted Downer New Zealand Ltd (Downer) to undertake the works required to establish the water connections from the Council’s water reticulation system to the individual lots. This work was carried out between November 2011 and April 2012. On 28 June 2012, the Council issued an invoice in the sum of $29,019.10 for water connection fees. This invoice comprised two components, connection fees payable to the Council at a fixed rate ($1,452 per connection) and the amount charged by Downer. The Council later issued two credit notes, the first for $17,424 on 31 August 2012 and the second for $1,452 on 25 May 2015. These were for the Council fees which Mr Harvey had already paid. That left an outstanding balance of $10,143.10, being the amount paid to Downer. After repeated demands were not met with payment, the Council eventually issued recovery proceedings in the District Court at Nelson in January 2017.
After a two-day hearing in January and February 2019 at which Mr Harvey was unrepresented, the Council obtained judgment against him for the amount claimed in the sum of $10,143.10.[2] Mr Harvey then engaged counsel to pursue an appeal to the High Court. The appeal was advanced on the basis that Split Atom was liable for the account, not Mr Harvey. By that stage, Split Atom had been removed from the Companies Register. Churchman J rejected this argument and dismissed the appeal in a judgment delivered on 16 August 2019.[3] Mr Harvey applied to the High Court for leave to bring a second appeal, but this application was declined by Churchman J on 5 November 2019.[4]
[2]Tasman District Council v Harvey [2019] NZDC 2561.
[3]Harvey v Tasman District Council [2019] NZHC 2025.
[4]Harvey v Tasman District Council [2019] NZHC 2863.
Mr Harvey now applies to this Court for leave to bring a second appeal. His application was brought out of time. He also applies to amend his application in accordance with a draft provided to the Court. The Council does not oppose these applications. Mr Harvey is not represented in this Court. The delay was short and has been satisfactorily explained. The Council is not prejudiced. We are satisfied that it is in the interests of justice to grant these applications so that Mr Harvey’s application for leave to appeal can be addressed on its merits.
Mr Harvey’s amended application for leave to appeal is lengthy (running to 116 paragraphs). However, his main points can be summarised as follows:
(a)Mr Harvey contends the Council had “no legal right or authority to make the charge or claim that it has”. In the District Court, the Council claimed the charges were authorised by s 150(1) and (3)(b) of the Local Government Act 2002 which empowers local authorities to “prescribe fees or charges payable for a certificate, authority, approval, permit or consent from, or inspection by a local authority”. Mr Harvey contends that this provision has no application to the present claim.
(b)Mr Harvey says the Council has shifted its position making varying, sometimes contradictory, claims. For example, Mr Harvey says the Council initially described the claim as being for “connection fees” but then revised this wording to “outwork costs”. Mr Harvey also complains that it took the Council from November 2011 (when the applications were completed) to May 2015 (when the second credit note was issued) to advise him of the correct amount claimed of $10,143.10. He also says the number of water units for which payment was sought was “incorrect and misrepresented to the Court”, as were “the number of lots created” (in error, the Council initially charged for 13 new connections rather than 12). Mr Harvey says that these changes made it difficult for him to defend the claim, particularly given he had made various requests under the Local Government Official Information and Meetings Act 1987 which had not been answered.
(c)Mr Harvey says the Council ought to have agreed to engage in mediation, rather than insisting on pursuing its claim in court. In any event, he says the claim should have been pursued in the Disputes Tribunal, not the District Court.
(d)While the amount at issue is not great, Mr Harvey says it is significant for him and his family.
(e)Mr Harvey contends that the proposed appeal raises matters of public importance because local authorities around the country undertake considerable onsite construction work at the request of developers and these costs add significantly to housing costs.
Mr Harvey advances two further issues in his written submissions. First, he contends that the Council was required to comply with the Construction Contracts Act 2002 (CCA) and did not do so. He argues that no payment claim complying with the requirements of s 20(2) the CCA was provided to him. In particular, he says the Council did not provide “a specific date, let alone provide detailed explanations of the work undertaken!” Secondly, Mr Harvey argues that the Council breached its duty of care: to provide an appropriate standard of accurate accounting; to provide accounts within a reasonable timeframe; and to facilitate resolution of disputes with ratepayers prior to taking legal action.
Leave for a second appeal may only be granted if the proposed appeal raises a question of law or fact capable of bona fide and serious argument involving some matter of sufficient private or public importance to outweigh the cost and delay of a second appeal.[5] For the reasons that follow, we are satisfied that this test is not met in this case.
[5]Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Even if Mr Harvey is right that s 150(3)(b) of the Local Government Act is not relevant because the fees or charges within the scope of that section do not include work of the type undertaken by Downer (described by the Council as outwork costs), this would not absolve him from liability to meet those costs. They were reasonably incurred on his behalf and at his request in providing the water connections. He accepted liability to pay these costs by signing each of the water service application forms. Mr Harvey appears to acknowledge this in his draft amended leave application — “TDC is entitled to charge outwork costs, it is fair and reasonable and this dispute does not relate to TDC’s practice of charging outwork costs”. It appears that the additional charges levied by the Council in purported reliance on the powers conferred under s 150(3)(b) ($1,452 per connection) were credited in the sum of $17,424 on 31 August 2012 ($1,452 x 12) and a further $1,452 credited on 25 May 2015 (for the 13^th connection charged in error).
We turn to Mr Harvey’s proposed defence that the Council was obliged to submit a payment claim complying with the requirements of s 20 of the CCA and failed to do so. The Council contends that the CCA does not apply because neither Mr Harvey nor the Council were party to a construction contract under the CCA and neither was involved in carrying out any construction work as defined. Mr Harvey’s argument relying on the CCA surfaced for the first time in his submissions filed in support of his present application for leave to bring a second appeal. It was not pleaded by him in the District Court, nor did he raise this issue in the High Court. Mr Harvey says he accepted his lawyer’s advice in the High Court that the appeal to that Court should be advanced on the basis that Split Atom was liable, not him. This argument was correctly rejected by the High Court. No issue appears to have been taken in the District Court about the reasonableness of the costs. Nor was any such issue raised in the High Court. It is too late to raise an argument about the adequacy of the information provided in the “payment claim”, even assuming in Mr Harvey’s favour for present purposes that the CCA applies at all. It would be highly irregular and contrary to the interests of justice, including the public interest in finality of litigation, to permit Mr Harvey to run for the first time a completely new argument relying on the CCA in the context of a second appeal.
The Council may have made errors in its invoicing by charging for 13 connections when there were only 12 and seeking recovery of sums Mr Harvey had already paid. However, credit notes were issued for these charges and they cannot affect Mr Harvey’s liability for the Downer costs. Also irrelevant to the present application, is the question of whether mediation ought to have been attempted or the matter dealt with in the Disputes Tribunal.
Finally, we consider Mr Harvey’s new contention that the Council breached a duty of care allegedly owed to him is misconceived and not seriously arguable. Further, this new basis of defence was also not pleaded in the District Court, nor was it raised in the High Court. Again, it would be wrong to allow it to be pursued for the first time in a second appeal.
We are satisfied that the proposed appeal does not raise any question of sufficient private or public importance to justify the cost and delay of a second appeal. Accordingly, the application for leave to bring a second appeal must be declined.

Result

The application for an extension of time to apply for leave to appeal is granted.
The application to amend the application for leave to appeal is granted.
The application for leave to bring a second appeal is declined.
The applicant is to pay costs to the respondent for a standard application on a band A basis and any usual disbursements.

Solicitors:
DLA Piper New Zealand, Wellington for Respondent

[2020] NZCA 91

6 April 2020 at 9.30 am