Graham v Scott - [2014] NZCA 269

IN THE COURT OF APPEAL OF NEW ZEALAND

CA874/2013
[2014] NZCA 269

BETWEEN

TONY GEORGE GRAHAM
Applicant

AND

GAVIN ROBERT SCOTT
First Respondent

AND

PATRICK ROBIN VAN BERKEL
Second Respondent

Hearing:	23 June 2014
Court:	Harrison, Wild and French JJ
Counsel:	N Levy for Applicant Respondent G Scott in person No appearance for Respondent van Berkel
Judgment:	25 June 2014 at 2.30 pm

JUDGMENT OF THE COURT

A The application for special leave to appeal is dismissed.

BThe applicant is to pay any disbursements reasonably incurred by the respondents, to be fixed by the Registrar failing agreement.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

This is an application for special leave to appeal against a judgment of Mallon J given in the High Court on 26 October 2013.[1]
[1]Graham v Scott [2012] NZHC 2834.
In that judgment Mallon J upheld an award of $13,842.55 costs, including disbursements, which Judge Broadmore had ordered the applicant to pay the respondents.[2] Mallon J also awarded the respondent Mr Scott $2,500 damages for nuisance. Although the applicant also seeks leave to appeal the finding of nuisance and the damages award, that is not the focus of this application. Ms Levy accepted that the nuisance issue would not meet the test for special leave to appeal.
[2]Scott v Elmslie Estate Ltd DC Wellington CIV-2010-085-0550, 20 July 2012.
The parties owned neighbouring properties in Upper Hutt. They got into disputes about a number of matters, primarily access over a right-of-way, alleged nuisance and consent to building plans. The disputes festered on for years.
When the respondents were unable to make any headway with the applicant in resolving the disputes, they issued a proceeding against the applicant in the District Court. They were successful in obtaining an interim injunction ordering the applicant to remove two concrete blocks he had placed in the right-of-way preventing vehicular access to the respondents’ properties, and restraining the applicant from other actions.
On the morning the proceeding came on for hearing in the District Court, the parties were able to settle all their disputes except for Mr Scott’s claim for damages for nuisance, Mr van Berkel’s claim for damages for unlawful interference, and the question of the costs of the proceeding. The parties agreed that those matters should be resolved by the District Court.
In his judgment Judge Broadmore did not award damages to Mr van Berkel but awarded Mr Scott $5,000 exemplary damages and ordered Mr Graham to pay the costs of Messrs Scott and van Berkel. He did that on the basis that their success lay in achieving resolution of disputes which had festered for a decade, rather than on the basis of the outcome in the District Court, that is, the award of damages to Mr Scott.
In the High Court Mallon J quashed the award of $5,000 exemplary damages because Mr Scott had not claimed them. She substituted an award of $2,500 general damages for loss of amenity and stress.
Mallon J upheld…

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 Graham v Scott

Details

AGLC: Graham v Scott [2014] NZCA 269
Case: [2014] NZCA 269
Decision Date: 25 June 2014 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for special leave to appeal in the matter of Graham v Scott. The applicant, Tony George Graham, sought leave to appeal a decision of the High Court that upheld an award of costs made by the District Court. The respondents, Gavin Robert Scott and Patrick Robin van Berkel, owned neighbouring properties and had engaged in protracted disputes with Graham over access, nuisance, and building plans. The Court of Appeal was required to determine whether the question of law proposed by Graham's counsel met the test for special leave to appeal under section 67 of the Judicature Act 1908. The central issue was whether the District Court had the broad discretion to award costs to the respondents based on the resolution of disputes achieved through the proceeding, even if neither party was ultimately successful in their claims.

The Court of Appeal found that the proposed question of law did not meet the test for special leave to appeal. Mallon J had already considered the matter and found that the respondents were entitled to costs for reasons other than merely achieving a resolution. Specifically, the respondents had succeeded in their injunction application and Mr Scott was successful on his claim for damages. The Court of Appeal agreed with Mallon J's analysis and found that the District Court's award of costs was justified. The Court held that the question proposed by Graham's counsel was not appropriate for a second appeal as it did not present a novel or significant issue of law that warranted further consideration. The application for special leave to appeal was therefore dismissed.

The Court of Appeal dismissed the application for special leave to appeal and ordered Graham to pay any disbursements reasonably incurred by the respondents. Given that Scott represented himself and van Berkel did not appear, the Court found it inappropriate to make a costs order. Instead, the disbursements were to be fixed by the Registrar unless the parties could agree on the amount.

Orders