Mawhinney v Auckland Council [2015] NZHC 417 (10 March 2015)

Last Updated: 26 May 2015

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