Bilkey v Kyriak - [2021] NZHC 264

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1822

[2021] NZHC 264

BETWEEN ROBERT MACKENZIE BILKEY, LYNNETTE MARGARET BILKEY and HAURAKI TRUSTEE SERVICES (2008) LIMITED
Appellants

AND

MICHAEL THOMAS KYRIAK and CHRISTINA MOIRA JUDITH CIE

Respondents

Hearing: 16 February 2021

Appearances:

W McCartney for Appellants Respondents in person

Judgment:

25 February 2021

JUDGMENT OF LANG J

[on appeal against award of costs]

This judgment was delivered by me on 25 February 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Duncan King Law, Auckland
W McCartney, Barrister, Auckland
Copy to: Respondents

BILKEY v KYRIAK and [2021] NZHC 264 [25 February 2021]

[1] This appeal arises out of a dispute between neighbours regarding a letterbox and a fence. As is common in such cases, the dispute has generated significant heat and animosity between the parties notwithstanding its apparently trivial nature. It resulted in a substantive hearing in the District Court that lasted more than three days followed by an appeal to this Court.

[2] The present appeal is a challenge to an award of costs made in favour of the respondents, Mr Kyriak and Ms Cie, following determination of the substantive dispute in the District Court. Judge P A Cunningham held that Mr Kyriak and Ms Cie were the successful parties at trial and should receive an award of costs in their favour.1 She reduced the award by 50 per cent to reflect the fact that they failed to establish one cause of action and evidence about this had occupied a considerable amount of time at trial. She reduced it by a further five per cent to reflect the fact that Mr Kyriak and Ms Cie had applied unsuccessfully at a late stage to add a new cause of action in defamation. They also failed to comply with their discovery obligations.

[3]Mr and Mrs Bilkey appeal against the Judge’s decision.

Background

[4] Mr and Mrs Bilkey, together with an associated company, were the registered proprietors of the land situated at 22 Arney Crescent in Auckland. They agreed to sell a portion of the land, known as 22A Arney Crescent, to Mr Kyriak and Ms Cie. The property situated at 22A Arney Crescent is at the rear of 22 Arney Crescent and is accessed by a steep driveway leading down from Arney Crescent.

[5] Settlement was delayed whilst an existing cross-lease arrangement was cancelled and the land was subdivided into two separate freehold titles. Pending completion of these matters Mr Kyriak and Ms Cie rented and lived in 22A Arney Crescent. The sale and purchase of 22A Arney Crescent was eventually completed on 25 September 2013.

1 Kyriak v Bilkey [2020] NZDC 16722.

[6] When the parties entered into the agreement for sale and purchase the letterbox for 22A Arney Crescent was situated in one of a pair of brick pillars located on either side of the entrance of the shared driveway. The letterbox…

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 264
Case: [2021] NZHC 264
Decision Date: 25 February 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the appellants, Robert Mackenzie Bilkey, Lynnette Margaret Bilkey, and Hauraki Trustee Services (2008) Limited, challenged an award of costs made in favor of the respondents, Michael Thomas Kyriak and Christina Moira Judith Cie, following a determination of a substantive dispute in the District Court. The dispute between the parties, neighbors residing at 22 and 22A Arney Crescent in Auckland, centered around a letterbox and a fence. The Bilkeys appealed against the Judge's decision to award costs to the Kyrias and Cies, arguing that the Judge erred in several respects. The appeal was dismissed. The court held that the Judge did not err in concluding that the Kyrias and Cies were the successful parties overall. The court also held that the Judge did not err in principle by reducing the costs payable to the Kyrias and Cies under r 14.7(d) to reflect the limited success achieved by the Bilkeys in defending the claim relating to the fence. Furthermore, the court found that the Kyrias and Cies had reasonable justification for rejecting the offer relating to the letterbox and fence. Finally, the court held that the quantum of costs awarded was within the Judge's discretion and there was no justification for appellate intervention.

Orders