Bilkey v Kyriak - [2021] NZHC 927

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1822

[2021] NZHC 927

BETWEEN ROBERT MCKENZIE BILKEY and LYNNETTE MARGARET BILKEY
Appellants

AND

MICHAEL THOMAS KYRIAK and CHRISTINA MOIRA JUDITH CIE

Respondents

Hearing: On the papers

Appearances:

W McCartney for Appellants Respondents in person

Judgment:

29 April 2021

JUDGMENT OF LANG J

[on application for leave to appeal to the Court of Appeal]

This judgment was delivered by me on 29 April 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Duncan King Law, Auckland Kyriak Law, Auckland Counsel:
W McCartney, Auckland

BILKEY v [2021] NZHC 927 [29 April 2021]

[1] On 25 February 2021 I delivered a judgment dismissing an appeal by Mr and Mrs Bilkey against an award of costs made in favour of Mr Kyriak and Ms Cie in the District Court.1 The costs were awarded after Mr Kyriak and Ms Cie succeeded in establishing three of the four causes of action they advanced in the District Court.

[2] Mr and Mrs Bilkey now seek leave to advance a second appeal to the Court of Appeal.

The test

[3] The jurisdiction to bring a second appeal is contained in s 60 of the Senior Courts Act 2016. The principles to be applied in determining such an application remain, however, those applied in relation to the predecessor to s 60, s 67 of the Judicature Act 1908.2

[4] In Waller v Hider, the Court of Appeal confirmed that the function of the Court of Appeal on a second appeal is not for general correction of error.3 Rather, it is to clarify the law and determine whether it has been properly interpreted and applied by the courts below.4 In short, the proposed appeal must raise a question of law or fact that it is capable of bona fide and serious argument and involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. This threshold reflects the fact that the time and resources of the Court of Appeal should not be devoted to cases that are not worthy of its attention. In addition, the other party or parties to the proposed appeal should not be put to additional expense without good reason.

Proposed grounds of appeal

[5] If granted leave, Mr and Mrs Bilkey propose to submit the following issues for determination by the Court of Appeal:

1      Bilkey v Kyriak [2021] NZHC 264.
2      W v C [2019] NZCA 530 at [16].
3      Waller v Hider [1998] 1 NZLR 412 at 413.
4      At 413.

(a)Whether for the purpose of fixing costs following trial a pre-trial open offer of settlement should be treated at least as favourably as an offer made without prejudice as to costs; and

(b)How costs should be awarded where opposing parties each succeed on distinct and unrelated issues.

Pre-trial offers of settlement

[6] This issue arises because…

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] NZHC 927
Case: [2021] NZHC 927
Decision Date: 29 April 2021

CaseChat Overview and Summary

The appellants, Robert and Lynette Bilkey, seek leave to appeal to the Court of Appeal against a decision of Lang J dismissing their appeal against a costs award in favour of the respondents, Michael Kyriak and Christina Cie. The underlying dispute between the parties, which began in the Disputes Tribunal in 2015, concerns rights to a letterbox and a fence along the boundary of their respective properties. The proceedings have spanned six years, including appeals to the High Court and the Court of Appeal. Lang J dismissed the Bilkeys' appeal against a costs award in August 2020, which they now seek to appeal to the Court of Appeal.

The primary legal issues in the application for leave to appeal are whether pre-trial offers of settlement should be treated favourably in fixing costs and how costs should be awarded where opposing parties each succeed on distinct and unrelated issues. The Bilkeys argue that their pre-trial offers of settlement should be considered favourably under the District Court Rules and that they are entitled to an award of costs against the respondents for their success in defending one of the issues. The respondents contend that the Bilkeys' arguments are not reasonably arguable and that further appeal should be denied due to the trivial nature of the dispute and the disproportionate resources already expended.

Lang J held that the pre-trial offers made by the Bilkeys did not meet the criteria for favourable consideration under the District Court Rules and that the Judge's approach to costs was orthodox. The Judge also noted that the substantive dispute was trivial and had already consumed significant judicial and institutional resources. The Judge concluded that a further appeal would not be justified due to the disproportionate cost and delay involved and the need for the parties and the courts to move on.

The application for leave to appeal is dismissed. The respondents are entitled to an award of costs on a category 2B basis together with disbursements as fixed by the Registrar.

Orders