The slip at the Mouldens' farm has been the centre of a Disputes Tribunal matter. Photo / Supplied
The slip at the Mouldens' farm has been the centre of a Disputes Tribunal matter. Photo / Supplied
A contractor who failed to get consent for significant earthworks has left a couple about $120,000 out of pocket, and with thousands of tonnes of dirt that slid across their farm after a cyclone.
Julia and Laurence Moulden lodged a claim with the Disputes Tribunal year after failing to reach a resolution out of court with a contractor they’d hired to provide thousands of tonnes of dirt landfill on a back paddock at their farm.
They’d seen an ad from Independent Earthmoving Limited on Facebook promising “free services for land contouring, land filling, council consents”. It said: “We’ll handle the project management from start to finish, taking full responsibility for the timeline and quality of the work.”
The company acts as a middleman for people who need to get rid of dirt and finds people, like the Mouldens, who need it.
Confident the company would be able to meet their needs, the Mouldens made an order. Between late November 2022 and February 2023, tonnes of landfill was trucked in and spread around on their Auckland property.
Then in February, Cyclone Gabrielle hit and the fill gave way, causing a slip that spilled off the Mouldens' property on to their neighbour’s land. Initial estimates were it would cost $250,000 to fix.
Then in May 2023, the council issued an abatement notice to the Mouldens stating the scale of the earthworks meant they would have needed resource consent.
An independent geotechnical report found there were multiple failings in the way the landfill had been dispersed and likely caused the slip.
“The earthworks do not appear in keeping with Auckland Council requirements in terms of the site preparation, compaction and land stability.”
The Mouldens then took the company and its director, Matthew Puckey, to the Disputes Tribunal after he refused to pay or rectify the slip.
At a recent hearing, Puckey’s evidence centred on an alleged conversation with the Mouldens during which he claimed they told him they didn’t care about getting council consent for the work and to proceed without it.
One of the Facebook ads listed by Independent Earthmoving Ltd. Photo / Facebook
Julia Moulden told NZME they’d assumed Puckey was sorting consent as per the Facebook ad, and they’d texted him several times to ask if he had.
“It’s our bad for not chasing it up, but we trusted him as a professional,” she said.
“His adverts said that he would obtain consent. Now he’s claiming we said we didn’t want consent, but one, that’s not true, and two, wouldn’t he have got that in writing if we’d said that?”
The Mouldens have home and contents insurance but that doesn’t cover the damage caused to their property. They’d also assumed Puckey would have indemnity insurance. If he does, he hasn’t made a claim on it.
“It’s fair enough that a freak weather event occurred, but if he’d done his job properly, then this might not have happened,” she said.
“It’s impossible to know if the slip would have happened anyway, but we do know from the geotech report that there were a number of things he didn’t do to mitigate the possibility of it slipping.”
Puckey told NZME he believed that, legally, he wasn’t able to obtain consent on the Mouldens’ behalf.
However, Auckland Council confirmed it was possible for a third party to apply for resource consent, but it would need final sign-off from the owner.
The tribunal referee, Philip McKinstry, also found Puckey’s stance an “unusual proposition” given he was in the business of providing landfill and “should know what the rules are”.
“If this is the respondent’s expectation when being engaged by a customer, it runs counter to its advertising that it would manage council consents.”
McKinstry found that on the balance of probabilities, Puckey was responsible for obtaining consent and failed to do so.
Photos from the geotechnical report show the slip on the Mouldens' property. Photo / Supplied
“Had the consents been obtained, by necessity any work required to obtain the consents would have been done and most likely the landfill would not have slipped and therefore the losses not arisen,” McKinstry’s ruling read.
“All the losses that arose from that failure, including needing to get a geotechnical report and survey, are direct consequences of the respondent’s breach to get consents and provide quality work.”
McKinstry ordered Puckey and his company to pay the Mouldens $30,000 for damage caused. The damage cost was much higher but that was the maximum amount the tribunal could settle a claim for.
Less than a week later, Puckey lodged an application for a rehearing.
“I didn’t have any of my evidence at the first hearing. The judge didn’t take it into consideration,” he told NZME.
“We’ve got a lot of evidence now... we’re going for a rehearing and I think we’ll win it.”
Puckey maintained that owners were supposed to get consent, despite his ads claiming free services for council consent.
“They’re the ones who wanted me to do the work on their land... the owners are the ones who are supposed to get consent.”
According to the tribunal website, an application for a rehearing could be made if facts relevant to the dispute were later discovered, and the application filed within 20 days of the initial decision. The rehearing would be heard by the same referee.
The Mouldens felt Puckey was abusing the tribunal process to delay payment.
“He had more than two months to file evidence and didn’t do it,” she said.
“To apply for, and be granted, a rehearing on that basis is simply ridiculous. He had just as much time to get evidence in as we did.”
A rehearing date is yet to be scheduled.
Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.
