Harvey v Tasman District Council

[2019] NZHC 2863

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-27

[2019] NZHC 2863

BETWEEN

MICHAEL HENRY HARVEY

Appellant

AND

TASMAN DISTRICT COUNCIL

Respondent

On the papers:

Counsel:

M H Harvey in person

K Anderson and E B Moran for Respondent

Judgment:

5 November 2019

JUDGMENT OF CHURCHMAN J

[1]        Mr Harvey seeks leave to appeal the decision of the Court in this matter dated 16 August 2019.1

[2]        This matter relates to a claim commenced in the District Court by the Tasman District Council (TDC) to recover the sum of $10,143.10. This was the outstanding balance for 12 water service connections for a subdivision in Mapua near Nelson.

[3]There are two matters to be considered:

(a)the application for leave to appeal out of time; and

(b)the leave application itself.

1      Harvey v Tasman District Council [2019] NZHC 2025.

HARVEY v TASMAN DISTRICT COUNCIL [2019] NZHC 2863 [5 November 2019]

Application for leave to appeal out of time

[4]        Mr Harvey, who is self-represented, initially filed his application for leave to appeal direct with the Court of Appeal on the 20th working day following the decision. It was rejected for filing by the Court of Appeal with the result that it was not filed in this Court until 20 September 2019 when it should have been filed by 12 September 2019.

[5]        In a minute dated 2 October 2019, I directed that the application for leave to appeal out of time be served on the respondent and indicated a preliminary view that the matter could be dealt with on the papers along with the leave application itself.

[6]        I also indicated that if the intended respondent wished to oppose the application, a notice of opposition and submissions should be filed within five working days of service.

[7]        The respondent does not oppose the application for leave for extension of time to appeal, and it is granted.

Leave to appeal

[8]        In order to justify a second appeal, there must be some point of sufficient importance to outweigh the cost and delay of the further appeal.2

[9]        In his written submissions, Mr Harvey does not specifically indicate the point which he says justifies a second appeal. Rather, he repeats the allegations that were dealt with in both the District Court and the High Court.

[10]      These include the complaint that the invoicing issued by the Council was confusing (an allegation with which both the District Court and High Court agreed); issues around delays by the intended respondent and a lack of correspondence (a variant of the argument about the sloppiness of the Council’s invoicing, also dealt with below), and the Council’s election to pursue this matter in the District Court rather than the Disputes Tribunal (also an issue dealt with below).

2      See Waller v Hider [1998] 1 NZLR 412 (CA) and Snee v Snee (1999) 13 PRNZ 609 (CA).

[11]      In his submissions on the leave application, Mr Harvey submits that if this matter had been dealt with in the Disputes Tribunal:

… my family and I wouldn’t have been exposed to a potentially fatal quantum award of costs against us, let alone the extraordinary levels of time and stress that we have been forced to endure.

This is not an issue of law justifying leave to appeal.

[12]      Mr Harvey complains that the Council has used the Court processes for “motives [that] were less than genuine”. There was no evidential basis for such a submission. These were simple debt collection proceedings.

[13]      Mr Harvey does not dispute the fact that the judgment sum actually represents the outstanding balance of third party costs incurred by the Council in providing the water connections to the subdivision.

[14]      The principal issue before the High Court was whether or not the liability for the debt was that of Mr Harvey personally or that of his company, Split Atom Marketing Ltd. That company no longer existed at the time of the hearing. The Court found that as the application for a resource consent for subdivision had been issued to Mr Harvey personally, and the application for the water connections had been made in the name of Mr Harvey who had also signed the form acknowledging liability for payment of a connection fee and that liability to pay the costs incurred was his rather than that of the company. This finding does not seem to be challenged in Mr Harvey’s application for leave to appeal.

[15]      The Council opposes  the application for leave  to appeal.  It  submits  that  Mr Harvey’s argument that the Council used the Court process for an improper purpose is incapable of bona fide or serious argument. It refers to the various invoices sent to Mr Harvey and a demand for payment prior the issue of proceedings and submits that these establish the quantum of the debt.

[16]      It submits that there was nothing improper in issuing proceedings in the District Court in respect of a debt owed pursuant to s 252 of the Local Government Act 2002.

Analysis

[17]      The amount of the debt is modest. As Mr Harvey has acknowledged, his legal fees and Court costs already exceed, by a considerable margin, the amount of the debt itself. Granting leave for a further appeal will simply add to the cost and delay experienced by both parties. Those costs are already out of all proportion to the sum involved.

[18]      This case was largely fact-dependent. The decisions of the District and High Courts are consistent one with the other. Mr Harvey’s contentions that the Court used the debt collection process for some improper purpose, or with an improper motive, are untenable.

[19]      This is not a case where the tests set out in cases such as Waller v Hider are met, and accordingly, leave to appeal is declined.

Outcome

[20]      Leave to appeal out of time is granted and the application for leave to appeal is dismissed.

Churchman J

Solicitors:

DLA Piper, Wellington for Respondent cc:     M N Harvey