Mawhinney v Auckland Council

[2015] NZHC 417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004906 [2015] NZHC 417

IN THE MATTER OF

the Resource Management Act 1991

BETWEEN

PETER WILLIAM MAWHINNEY as Trustee in the WAITAKERE FOREST LAND ESTATE

First Plaintiff

PETER WILLIAM MAWHINNEY as Trustee in the FOREST TRUST Second Plaintiff

PETER WILLIAM MAWHINNEY as Trustee in the SIXTY-SIX AUCKLAND TRUST

Third Plaintiff

AND

AUCKLAND COUNCIL as
Local Authority and Consent Authority

Defendant

Hearing:

10 March 2015

[On the Papers]

Appearances:

P W Mawhinney (Self-represented for the First, Second and
Third Plaintiffs) in Person
N R Hall for the Defendant

Judgment:

10 March 2015

JUDGMENT OF DUFFY J [re Costs]

This judgment was delivered by Justice Duffy on 10 March 2015 at 3.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:      Simpson Grierson, Auckland

Copy To:       P W Mawhinney, Auckland

MAWHINNEY v AUCKLAND COUNCIL [2015] NZHC 417 [10 March 2015]

[1]      The defendant in this proceeding, the Auckland Council, was successful in its application for summary judgment by a defendant, and strike-out in relation to the proceedings  brought  by  the  plaintiffs.     Further,  the  plaintiffs’  application  for summary judgment was unsuccessful.  The judgments to that effect were delivered by me on 11 February 2013.1    Leave was reserved to the parties to file memoranda on costs.

[2]      The defendant, being the successful party in the proceedings, filed a costs memorandum,  dated  19  February 2013.    The  plaintiffs  never  responded  to  that memorandum.

[3]      On 24 October 2014, Associate Judge Sargisson directed the plaintiffs to file a memorandum in reply to the defendant’s costs memorandum by 7 November 2014. The plaintiffs did not comply with the timetable directions, and as at the present time have not filed a memorandum addressing the defendant’s application for costs.

[4]      I am satisfied that this issue has carried on for long enough.  The plaintiffs have been given ample opportunity to address the defendant’s costs’ memorandum. The defendant is entitled to the costs it seeks, being the successful party.   The general approach is that costs follow the event.   There is nothing about this proceeding that would warrant a departure from the general approach.

[5]      I have read the memorandum filed by the defendant.  It seeks scale costs at category  2.    I  am  satisfied  that  the  costs  itemised  in  that  memorandum  are appropriate.    The  defendant  seeks  to  have  costs  for  part  of  its  preparation  at category C, due to the onerous and embarrassing nature of the material filed by Mr Mawhinney.  In this respect, I note Mr Mawhinney filed five lengthy affidavits, and there were two amendments to the statement of claim.  The defendant contends that each such affidavit required it to review the fresh allegations and to prepare rebuttal affidavits.

[6]      Mr Mawhinney is a litigant in person.  In this proceeding, he has sued as a plaintiff in three capacities, each as a trustee.  Some leniency might on occasion be

extended to litigants in person, but there comes a time when the extra expense and

1      Mawhinney v Auckland Council [2013] NZHC 159, (2013) 17 ELRNZ 150.

trouble that they can impose on the opposing parties is so onerous that it should be reflected in a costs award.  I am satisfied that this is such a case.

[7]      Accordingly,  I  find  that  the  defendant  is  entitled  to  claim  some  of  its preparation at category C.   Overall, I am satisfied that the defendant is entitled to costs on the summary judgment/striking out by the Council in the sum of $5,174.  I am also satisfied that the defendant is entitled to costs in successfully opposing the plaintiffs’ summary judgment in the sum of $13,532.  Accordingly, the defendant is entitled to costs totalling $18,706.

Duffy J