Court of Appeal exonerates council staff

The Court of Appeal has independently found claims of malice against two Auckland City Council employees were unjustified.

The charges of malice relate to a dispute between Waiheke Island property developer, Adrian Chisholm, and the council which has been before the courts several times.

The Court of Appeal last week ruled against Mr Chisholm who was appealing a High Court judge’s decision which dismissed his claim for damages against the council.

The case relates to a development Mr Chisholm proposed in 1997. Mr Chisholm claims the council thwarted his efforts to build a multi-million dollar resort on Waiheke Island, when it intended to dump septage (accumulated material from septic tanks which has to be disposed of) on the golf course adjoining the property Mr Chisholm was going to develop.

Mr Chisholm claimed the resort project became untenable and the council had caused its downfall which could not be revived.

In his decision last year, Mr Justice Chambers ruled against all of Mr Chisholm’s claims which included charges of misfeasance (abuse of power) from which the malice claims stemmed, negligence, and claims under the Bill of Rights and the Fair Trading Act.

Mr Chisholm and two companies with which he is associated, brought their appeal on the basis that Mr Justice Chambers was in error when he dismissed their claim for damages against the council.

The Court of Appeal decision dealt at length with the claim of malice against the two officers, Mr McQuillan and Mr Paterson, and found the allegations of malice were unjustified.

“Having independently considered the matter ourselves, we are of the same mind as the judge,” the Court of Appeal judgement said.

“We consider the evidence …falls well short of proof to the necessary level for a serious allegation of the present kind that either Mr McQuillan or Mr Paterson were motivated by malice against Mr Chisholm in what they did and decided.”

The Court ruled that the appellants failed on all three issues, dismissed the appeal and awarded costs of $5000 to the council.

Auckland City is still pursuing costs awarded to it from the High Court case.

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