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$100,000 in legal fees later
I present this without comment from Auckland Council:
Auckland Council applies to strike out Penny Bright defamation proceedings
Auckland Council has applied to have Penny Bright’s defamation proceedings struck out, with the matter to be heard by the High Court at a hearing on 5 November.
The council is seeking to recover unpaid rates of $38,372.22 from Ms Bright which date back eight years.
Separately, Ms Bright has initiated defamation proceedings in relation to comments concerning her unpaid rates made by the council in a press statement last year, which the council is defending against.
Ms Bright has refused repeated offers from council to resolve the outstanding rates, in a manner which would avoid her incurring financial hardship or the sale of her house.
Auckland Council’s General Manager Finance Kevin Ramsay says: “Auckland Council did not initiate these defamation proceedings but clearly we need to respond to the claims Ms Bright has made. As we have said previously, we believe the views expressed about Ms Bright were fair and accurate, and we completely reject the accusations she has made.
“We have given Ms Bright every opportunity to resolve her outstanding rates bill in a way that would avoid financial hardship, including the option of deferment. That option remains open to her.”
“Ms Bright’s offer to settle the defamation case with an apology and a payment to her of $10,000 was unacceptable from our perspective. It is open to Ms Bright to stop the court action at any time without further unnecessary costs to ratepayers.”
The courts have discretion, but routinely award costs to successful parties. Costs will be sought if the application succeeds.
Further Information: Background to Defamation proceedings
The proceedings were brought by Ms Bright following this statement, issued by Auckland Council, in October last year.
The statement followed comments made by her in this Herald interview and other media reports prior to 10 October.
Background to Ms Bright’s outstanding rates
- January 2008: A final notice for rates payment is sent, as well as numerous calls made to Ms Bright. Council discussed with Ms Bright the options for rates payment, including a rebate. During the final call to Ms Bright, she advised council she disputed rates owed.
- March 2008: A statement of claim to Ms Bright’s rates was filed in court.
- June 2008: A statement of defence was filed in court by Ms Bright.
- November 2008: A reserved judgment was filed which states Ms Bright is liable to pay the rates due to council.
- April 2009: A High Court decision awards $300 in costs to Auckland Council.
- October 2009: A final District Court judgment for rates and legal costs is issued.
- July 2010: A query from Ms Bright, regarding the age of construction of her dwelling is received. An inspection is carried out and a letter is sent to Ms Bright, confirming there is no impact on the value of the dwelling.
- April 2011: A charging order is placed on Ms Bright’s property.
- October 2011: A recommendation to proceed with legal action on outstanding rates is signed.
- November 2011: Notice of claim is served on and accepted by Ms Bright.
- December 2011: Ms Bright serves a notice of response on council.
- January 2012: Auckland Council serves information capsule to the District Court.
- February 2012: Auckland Council obtains a second judgment in Ms Bright’s rates arrears case as Ms Bright failed to, in response, file an information capsule to the court.
- April 2012: A second charging order is placed on Ms Bright’s property.
- March 2014: A notice of intention to enforce judgment sent after no contact or payment from Ms Bright.
- March 2014: In the same month, Auckland Council applies for an enforcement of judgment for rates via a rating sale.
- 9 October 2014: Ms Bright applies to set aside the default judgment.
- 10 October 2014: Two days later, Ms Bright applies for a stay of proceedings.
- 10 March 2014: Default judgment set aside following a hearing before Judge Harvey.
- 26 March 2015: Auckland Council sends an amended rates invoice to Ms Bright, minus legal fees.
- 12 May 2015: Auckland Council files an amended statement of claim, which now includes an application for a summary of judgment for unpaid rates from Ms Bright, dating from June 2006 to 11 March 2015.
- 15 June 2015: Ms Bright files a notice of opposition to the council’s application for a summary judgment in the case.
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Auckland 2040 Not Happy with ACDC15 Directive
This morning I blogged on the Directive the Unitary Plan Independent Hearings Panel issued on doing a third run of the Auckland Council Development Capacity Model (ACDC15) for the Unitary Plan Residential Zones (see: #UnitaryPlan: Oh Council Wont Like This With the Development Capacity Model Being “Pinged”)
In that post I wrote:
Rather ouch to Council as their re-run of the ACDC15 model in which they were pinning on would show the market feasible would increase from the initial 11% to over 60%. But it seems the Panel is not convinced thus the directive issued above that is going to have implications on the proposed controls for the Residential Zones and later on Topic 081 which is the rezoning exercise.
I am going to take a hunch that what the proposed development controls are for the Residential Zones in the Proposed Auckland Unitary Plan (density controls removed and height limits increased) are fine (unlike the Centres Zones) but where the respective zones are placed will be causing the major issues.
It might be a case of once the Residential Zones hearing is complete next month that initial runs on moving the zones around might need to be done to see how the development feasibility ends up. Of course legally this would open up the Rezoning exercise of Topic 081 for public submissions again to allow natural justice to occur. Just maybe this needs to be done and the Hearings extended six months beyond the nominal time frame of July 2016 to ensure everything to do with the Residential Zones and their spatial placement is correct.
Will see how Council reacts to the Panel Directive this week.
Well for the most I was right with what I said above, it is that Auckland 2040 reacted to the Directive first before Council did.
Auckland 2040’s Richard Burton sent a memo to the Panel this morning outlying his concerns. At the time I wrote this post the memo from Burton was not on the Unitary Plan Hearings Panel website. However, given the very high public interest in the Residential Zones (Topics 059-063) and the perceived implications (real or not is to your interpretation), and there is no personal information included I have put the memo below as an embed. Disclaimer: I am a Primary Submitter who has given Primary Evidence to Topics 059-063 – Residential Zones to which the Directive on the ACDC15 third rerun and any replies to that Directive such as that memo from Burton have implications on potentially.
The Memo from Richard Burton:
The Key Parts
- I am extremely concerned regarding the IHP directive to parties requiring that a rerun be made of the Capacity for Growth model reflecting the inputs of Messrs Fontein and Thompson. I believe the directive raises significant issues of natural justice and process. This could potentially lead to applications to the High Court for judicial review. I am disappointed that that the work of other parties in mediation and expert conferencing can potentially be undermined through the IHP’s directive.
- At my first meeting of the CFGS team I made the following two observations based on my involvement with models of varying types over many years:
- Outputs from models are entirely subject to the assumption set loaded into the model. Many assumptions are subject to significant variables so that the personal belief set of the modeler influences the inputs and accordingly the output
- That in my several hundred appearances as an expert witness before the Environment Court I have never seen a model pass the test of cross examination. This is largely because, when the assumptions which control the inputs to the model are examined, even small discrepancies can have a significant effect on the output.
- In the interests of natural justice, due process and fairness to all parties, the following matters need to be considered by the IHP
- That the experts who prepared the assumption sets need to be made available for cross examination by any party who wishes to do so. The model has assumed such importance that an opportunity for robust cross examination of those responsible for its preparation is essential
- The hearings will need to be deferred by at least one month to allow for the above matters to be addressed
- As the results of the first and second model runs have been used by submitters and their expert witnesses to prepare their evidence, there needs to be sufficient time for them to consider the output from the third model run and file revised briefs of evidence if thought necessary
- The assumption sets for all three of the model runs should be set out in detail in a manner so that meaningful comparison can be made between model runs for each assumption. The variables behind each assumption and the basis for those variables also need to be available. The input of the full CFGS team, particularly Dr Fairgray and Kyle Balderston is essential for a fair assessment of the assumptions
- It is anticipated that the proposed assumption set being prepared by Messrs Fontein and Thompson for the proposed model rerun again will not be fully disclosed to the full CFGS team. It is essential that this occur and the assumption set agreed on before the model is run
- It is accepted that the assumptions made by Dr Fairgray and Mr Balderston in the second model run have been challenged by Messrs Fontein and Thompson. As Dr Fairgray is currently overseas, he has no opportunity to comment on those challenges or to participate in the process to ensure that a balanced approach to these important assumptions is achieved.
- The IHP originally requested the establishment of a team to advise on the projected demand for dwellings in Auckland and the likely developable capacity based on the PAUP as notified. It is the CFGS team which was asked to advise the IHP. To allow two individuals who participated in the process to essentially dictate to Council the assumptions to be made in the model may lead to justifiable claims of bias influencing not only all submitters but also the Panels role in addressing them.
- I believe that failure to address the above matters could bring into question the integrity of the hearing process. I wish it noted that Auckland 2040 believes the directive of the IHP raises matters of law which if unresolved could necessitate an application to the High Court by way of review. To this end Auckland 2040 is engaging senior counsel. Because our counsel Mr Brabant is overseas and not returning until the first week of October I was not able to refer this to him. However I have taken interim legal advice which has indicated that a challenge could be made to the process being followed by the IHP in reaching its ultimate decision.
I can see where Burton is coming from in that a third run of the ACDC15 with parameters independently set by Fontein and Thompson could have natural justice concerns given Primary and Rebuttal Evidence to the Residential Zones can not be done on this third model run. This stems from that the third run of the ACDC15 will not be ready until the Hearings start in October meaning submitters like Burton and even myself can not rebut against the model run if we were to do so.
Threatening a Court challenge is something else and Burton is free to do so if he wishes.
It will be very interesting to see where this all ends up.
Again I am publishing this for your information as I deem it the utmost public interest given this will affect every single Auckland citizen living here.
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