Northland contractor Jimmy Daisley will have to wait longer for his claims against Whangārei District Council to be resolved, after the council voted to appeal a Court of Appeal decision that reaffirmed it had to pay him millions for negligence.
Northland contractor Jimmy Daisley will have to wait longer for his claims against Whangārei District Council to be resolved, after the council voted to appeal a Court of Appeal decision that reaffirmed it had to pay him millions for negligence.
Malcolm Daisley, known as Jimmy Daisley, has been in a battle with the council for 20 years, racking up such a financial burden he was forced to sell his property.
Despite rulings from the High Court for the council to pay up, it has yet to pay a dollar. Daisley has been vocal about the penalty he is owed, even applying to the High Court to force the sale of Whangārei’s largely vacant convention centre, Forum North.
Daisley thought that was finally the end of the matter and he would “get justice at long last’” but the council has now voted to apply for leave to appeal the decision. If granted the appeal is likely to end up in the Supreme Court.
The council met to discuss the matter last month and its insurers, Riskpool, filed an application for leave to appeal that judgment on June 13.
In a statement the council said all costs associated with this case are incurred by the council insurers and its only financial commitment was to cover the $10,000 excess. Any settlement costs and associated court costs are also covered fully by the council’s insurers.
The council said throughout the process of the litigation, it has followed insurers’ and legal advice, ensuring the council remains within the contracted policy conditions.
“ ... the insurers have incurred all associated costs of the claim, and the appeals; and that council remain bound by the conditions of the claim but acknowledge the judgment and the notice of application for appeal,” the statement said.
Daisley said he was disappointed that the council would not face up to its legally-decided obligations by appealing, but he was “not surprised at all”.
“This whole thing has been nasty from the very start, and this just feels like more persecution. I’ve done absolutely nothing wrong here, and the council has been found to be at fault every step of the way, but I’m the one being dragged back before the courts again and again,” he said.
“We’ll definitely fight this all the way to the Supreme Court if necessary. I’ve come too far, and there are so many people that have supported me, that I can’t give up now.”
Daisley said many people had supported him, including giving him money to help fight the case, that the battle was now far bigger than just him.
Northland contractor Jimmy Daisley was allowed by the High Court in 2022 to sell Whangārei District Council's Forum North HQ to recover a multimillion-dollar court-ordered debt to him. The matter will be back before the courts after the council appealed a Court of Appeal ruling that it had to pay Daisley out.
“This is now for anybody who has been mistreated by their council. The council has pursued me for years over this, despite them being found to be in the wrong again and again. At one stage they were even going to throw me in jail over this (through legal proceedings) so there’s no way I’m giving up now. I could have been sat in a jail cell over this.”
Jimmy Daisley vs WDC
In 2004 Daisley ventured into quarrying when he purchased a quarry alongside a farm property in Ruatangata near Whangārei. The sellers assured Daisley - rightly - that the quarry operations had faced no challenges or prohibitions until then. However, in November 2004 the council issued a Land Information Memorandum to Daisley mistakenly stating that no resource consent had been issued for the quarry.
From 2005 onwards, the council adamantly denied the existence of any consent, claiming the quarry operations, which had been running for almost 30 years, were unauthorised and unlawful. Caught in a legal quagmire, the council began bombarding Daisley with abatement and infringement notices, followed by enforcement actions in the Environment Court for his alleged breaches of these notices.
Undeterred by the council’s persistence, Daisley sought to regulate his operations by applying for resource consent for quarrying activities in 2006. His efforts were met with resistance from the council, which continued its enforcement actions against him.
The turning point came in 2009 when Daisley’s solicitor stumbled upon a hidden gem among the council’s files - a land use consent for the quarry issued in February 1988. This revelation was the first time Daisley became aware of its existence.
Facing the looming threat of a mortgagee sale of his property, Daisley opted to sell the farm in 2009 to his neighbours at what he said was a “forced sale” price.
Finally, in 2011, after a prolonged legal battle, the council relented and acknowledged Daisley did indeed possess the necessary consent to operate the quarry. As a result, the enforcement proceedings were withdrawn.
Traumatised by a situation Daisley described as “17 years of hell’” he took the council to court alleging negligence and misfeasance in public office for knowingly and deceptively denying the existence of a valid consent.
Justice Kit Toogood found from November 2004 to September 2009, the council continuously breached its duties by failing to keep the 1988 land use consent in current records and did not conduct diligent searches before issuing abatement notices and taking enforcement actions.
Whangārei contractor Jimmy Daisley won’t give up his two-decade legal fight against the council after it decided to appeal a court ruling that it had to pay him $4.2 million.
Toogood also found the council’s conduct was reckless and obstructive, especially after discovering the 1988 consent in 2009. Its persistent opposition and failure to apologise demonstrated a clear disregard for Daisley’s rights and proper administrative process.
Furthermore, the judge found the council’s failure to acknowledge the consent amounted to fraudulent concealment and concluded the council was liable for negligence and misfeasance.
The High Court awarded Daisley damages totalling $4,279,622, with interest that continues to grow by the day. Included in the compensation is a payment of $50,000 in exemplary damages. It also granted his request for a sale order on 2.387 hectares of land that the Forum North sits on in Rust Ave to pay the multimillion-dollar debt the council owes him.
The council appealed the ruling in 2022 and a hearing was held in late 2023. The Court of Appeal decision made a slight adjustment to the High Court ruling.
The appeal court found no current council officers knew of the 1988 land use consent, thus they could not have wilfully concealed it. However, the officers were deemed reckless for not searching council records before taking enforcement actions against Daisley, despite credible indications a consent might exist.
Despite council officers being subjectively reckless, the Court of Appeal found they were not acting in bad faith.
Consequently, the appeal court set aside the finding of liability for misfeasance and the award of exemplary damages, $50,000, but ruled the council is still liable for the damages.
