Ayers v Thompson - [2012] NZHC 2807

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-003446 [2012] NZHC 2807

UNDER Section 72 of the Districts Courts Act 1947

BETWEEN DANIEL FRANCIS SYDNEY AYERS Appellant

ANDEARL EDWARD GEORGE THOMPSON First Respondent

ANDLORNE CAFE LIMITED Second Respondent

Hearing: 3 October 2012

Counsel: NMH Whittington and SP Beswick for Appellant
RM Dillon for Respondents

Judgment: 25 October 2012

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 25 October 2012 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, DX CP 24063, Auckland.
Email: nick.whittington@meredithconnell.co.nz and Samuel.beswick@meredithconnell.co.nz
Queen City Law, DX CP 24080, Auckland. Email: ross@queencitylaw.co.nz

AYERS V THOMPSON HC AK CIV-2012-404-003446 [25 October 2012]

Table of Contents

Para No

Introduction [1] Background [3] The issues [13] The rules framework [17] The validity of the response [24] The obligation to file the information capsule [32] Consequences of the failure to file an information capsule in time [44] The order as to costs [46] What orders should be made? [50] Result [55] Costs in this Court [57]

Introduction

[1] On 21 May 2012 Judge Bouchier in the District Court at Auckland recorded in a minute that civil proceedings filed by the appellant Mr Ayers against the first and second respondents Mr Thompson and Lorne Café Ltd were a nullity, and ordered costs in favour of each respondent in the sum of $1,000.

[2] The appellant appeals against that decision asserting that the proceedings were not a nullity and that no costs order should have been made. The essential points are that the Judge’s assumption that the plaintiff had fatally failed to file an information capsule in time was wrong, and that the costs order was in any event excessive.

Background

[3] Mr Ayers and Mr Thompson are neighbours. They, or companies associated with them, lease adjoining premises in Lorne Street. On 16 December 2011
Mr Ayers became concerned at loud music originating from the café owned by Lorne Café Ltd and run by Mr Thompson. Mr Ayers decided to submit a complaint to the Auckland Council and entered the café and asked that the noise stop. He claims that he had a confrontational exchange with Mr Thompson. Mr Ayers left the premises and lodged a noise complaint with the Auckland Council.

[4] Mr Ayers asserts that on occasions since then, whenever he walked past the café, if Mr Thompson was seated outside, he began clapping and made others do the same. He asserts that on one occasion he sat down opposite Mr Thompson with the intention of discussing the situation. He contends that there was an altercation which amounted to Mr Thompson committing the tort of assault against him. He asserts that the clapping has since continued when he walks past. He used his cellphone to take a video of what was happening. He asserts that on an occasion there was another altercation when Mr Thompson approached him in an aggressive manner and made a threatening statement in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ayers v Thompson

Details

AGLC: Ayers v Thompson [2012] NZHC 2807
Case: [2012] NZHC 2807
Decision Date: 25 October 2012

CaseChat Overview and Summary

In Ayers v Thompson, Daniel Francis Sydney Ayers sought to appeal a decision of Judge Bouchier, who declared the proceedings null and ordered costs of $1,000 in favour of each respondent, Earl Edward George Thompson and Lorne Café Limited. The primary issues were whether the proceedings were correctly declared a nullity and whether the costs order was justified. The court found that the proceedings were not a nullity but had simply ended due to the appellant's failure to file an information capsule within the required time. Consequently, the appeal against the nullity declaration was dismissed. However, the court held that the costs order was flawed as it violated the principles of natural justice by not providing the appellant an opportunity to be heard and was excessive. The order for $1,000 in costs for each respondent was quashed and replaced with a single order for $750 in costs. The court concluded that while a costs order was warranted, the amount should reflect the limited activity of the respondents, which was primarily the filing of the response. Ultimately, the appeal succeeded in part, and the costs in the High Court were left to lie where they fell.

Orders