Bilkey v Kyriak - [2021] NZCA 518

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA298/2021
[2021] NZCA 518

BETWEEN	ROBERT MACKENZIE BILKEY, LYNNETTE MARGARET BILKEY AND HAURAKI TRUSTEE SERVICES (2008) LTD Applicants
AND	MICHAEL THOMAS KYRIAK AND CHRISTINA MOIRA JUDITH CIE Respondents

Court:	Cooper and Brown JJ
Counsel:	W A McCartney for Applicants Respondents in Person
Judgment: (On the papers)	8 October 2021 at 2.30 pm

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.

B The applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

The applicants, Mr and Mrs Bilkey,[1] seek leave pursuant to s 60(1) of the Senior Courts Act 2016 to appeal against a decision of the High Court delivered by Lang J on 25 February 2021.[2] The High Court decision was on an appeal against an award of costs made in favour of the respondents by the District Court following determination of a dispute between the neighbours effectively about a letterbox and a fence.
[1]For simplicity we refer throughout to the Bilkeys without adding an unnecessary reference to Hauraki Trustee Services (2008) Ltd.
[2]Bilkey v Kyriak [2021] NZHC 264 [High Court judgment].
Judge Cunningham held that Mr Kyriak and Ms Cie, having been successful, should be awarded costs, but she reduced the award by 50 per cent to reflect the fact that they had failed to succeed on one cause of action in respect of which the evidence had occupied a considerable amount of time at the trial.[3]

Background

[3]Kyriak v Bilkey [2020] NZDC 16722 [Costs judgment].

The immediate genesis of the dispute was accidental damage caused by a building contractor engaged by Mr and Mrs Bilkey to a pillar containing the letterbox used by Mr Kyriak and Ms Cie at the top of a shared entrance to their properties. The damaged pillar was replaced, but the letterbox was not.
This led to litigation in which Mr Kyriak and Ms Cie advanced four causes of action. Three causes of action related to an implied entitlement to use a letterbox at the top of the driveway; the fourth cause of action related to a boundary fence between the properties.
The proceeding resulted in a trial before Judge Christiansen in the District Court at Auckland which occupied three and a half days of hearing time and was spread over a week in December 2019. Mr Kyriak and Ms Cie were successful on the three causes of action relating to the letterbox. But the Judge dismissed the claim relating to the fence on the basis that the existing fence could be repaired and did not require replacement.[4] The Judge also considered that Mr Kyriak and Ms Cie should meet most of the costs of rectifying the defects of the existing fence.[5]
[4]Kyriak v Bilkey [2019] NZDC 25227.
[5]At [50].
Mr and Mrs Bilkey then sought to appeal against the judgment of the…

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 Bilkey v Kyriak

Details

AGLC: Bilkey v Kyriak [2021] NZCA 518
Case: [2021] NZCA 518
Decision Date: 8 October 2021 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for leave to appeal a decision of the High Court, which dismissed an appeal against a costs award made in favour of the respondents, Mr Kyriak and Ms Cie, in a dispute between neighbours. The dispute was about a letterbox and a fence. The applicants, Mr and Mrs Bilkey, sought leave to appeal the High Court decision, arguing that the Judge erred in fixing the costs payable to Mr Kyriak and Ms Cie without setting those costs off against the costs payable to Mr and Mrs Bilkey on the cause of action relating to the fence. They also argued that Mr and Mrs Bilkey were entitled to costs, or a further reduction of costs, because Mr Kyriak and Ms Cie failed to accept a reasonable settlement offer prior to trial. Finally, they argued that the Judge ought to have reduced the costs payable to Mr Kyriak and Ms Cie by more than five per cent to reflect their failure to comply with discovery obligations. The Court of Appeal declined the application for leave to appeal, holding that the proposed appeal did not raise any issue of law of sufficient general or public importance to justify the time and further expense involved in an appeal to this Court. The Court of Appeal also noted that the litigation involved in this dispute had begun in the Disputes Tribunal and had been before the courts for six years, which had included a substantive hearing spread over a week in the District Court. The Court of Appeal concluded that the inevitable cost and delay involved in a further appeal to the Court of Appeal solely on the issue of costs was plainly not justified.

The Court of Appeal held that the application for leave to bring a second appeal was based on the assertion that open offers of settlement should have the same effect on costs as offers made without prejudice except as to costs, and that the conventional method by which costs are awarded when both parties succeed is flawed, and unfair to a party who is deemed to have succeeded less, even if only marginally less. However, the Court of Appeal held that these issues were not of sufficient importance to outweigh the costs and delay of a further appeal. The Court of Appeal noted that the settlement offers were not made without prejudice except as to costs, and therefore their impact was not to be assessed under the relevant rules of the District Court. Rather, the impact of the open offers of settlement had to be assessed under a different rule. The Court of Appeal held that the Judge's judgment on this issue could not be faulted, and that there was no construction of the rules capable of bona fide and serious argument to the contrary. The Court of Appeal also held that the impact on costs due to the fact that Mr Kyriak and Ms Cie were only partially successful in their litigation before the District Court was a matter for assessment at first instance, and that no error of principle had been identified in the approach taken on that issue. The Court of Appeal held that the issue was inherently unsuitable for consideration in a second appeal.

The Court of Appeal noted that Mr and Mrs Bilkey had taken exception to observations made by the High Court Judge in the leave judgment, under the heading "[e]nough is enough". The Court of Appeal held that the Judge's observations were justified having regard to the basic subject matter of the dispute. The Court of Appeal noted that the resolution of the dispute had involved a three and a half day hearing before the District Court spread over five days, an appeal to the High Court (rendered moot), a separate appeal to the High Court on questions of costs, and an application for leave to appeal from that decision. The Court of Appeal held that the Judge's comments were justified and apt having regard to what happened over the course of the litigation as a whole.

The Court of Appeal declined the application for leave to appeal. The applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

Orders