Mr Mawhinney brought an unsuccessful appeal against the Auckland Council (formally Waitakere City Council) regarding proposed changes to the Waitakere District Plan. The original appeal was filed in 1998 and resulted in 28 hearing days between 1998 and 2010. The Council filed an application for costs against Mr Mawhinney in 2010 seeking $427,139.00, being 33% of its claimed legal and expert witness costs.
The Court awarded the quantum of costs sought by the Council and declined Mr Mawhinney’s counterclaim for costs. The Court noted that, in accordance with the Court Practice Note, costs will not normally be awarded to any party when an appeal under the first schedule of the Resource Management Act 1991 (RMA) has proceeded to a hearing. However, the Practice Note is only a guideline and “cannot act as a fetter to the Court’s wide discretion to award costs under s 285(1) of the Act”.
The Court found that an award of costs was justified in the circumstances, including due to Mr Mawhinney’s: stubborn, but moving goalposts in advancing his arguments, meaning the Council was put to excessive and unreasonable costs; failure to call any expert evidence in support of his case; failure to comply with a number of Court directions (including filing submissions/applications that were out of time and not succinct); and “insatiable appetite for RMA litigation” in relation to his land.