Graham v Scott

[2013] NZHC 3103

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-1722 [2013] NZHC 3103

BETWEEN  TONY GEORGE GRAHAM and ELMSLIE ESTATE LIMITED Appellants

ANDGAVIN ROBERT SCOTT and PATRICK ROBIN VAN BERKEL

Respondents

Hearing:                   21 November 2013

Appearances:           T Graham appearing in person

G Scott and P van Berkel appearing in person

Judgment:                22 November 2013

JUDGMENT OF MALLON J

Introduction

[1]      Mr Graham and the Elmslie Estate Limited apply for leave to appeal my judgment given on 26 October 2012.1    The application for leave is opposed by Mr Scott and Mr van Berkel.

[2]      The background to that judgment is a bitter dispute between Mr Graham and his neighbours, Mr Scott and Mr van Berkel, over a right of way.  That dispute led to proceedings in the District Court.  The parties reached a settlement on the morning of the scheduled District Court hearing with damages and costs remaining to be considered at the hearing.  The District Court awarded $5,000 exemplary damages to Mr Scott and costs in favour of Mr Scott and Mr van Berkel on a 2B basis.   Mr

Graham appealed against those orders.  I heard that appeal.  In my 26 October 2012

1      Graham v Scott [2012] NZHC 2834.

GRAHAM v SCOTT [2013] NZHC 3103 [22 November 2013]

judgment I quashed the award of exemplary damages, replacing it with an award of general damages of $2,500 to Mr Scott.  I also dismissed the appeal against costs.

[3]      Mr Graham  and  Elmslie Estate  applied  to  recall  my judgment  on  22/23

November 2012.  On 20 March 2013 I dismissed the application on the basis that the established grounds for recall did not apply.2   On 23 April 2013 Mr Scott and Mr van Berkel sent a reminder to Mr Graham/Elmslie Estate that payment of damages and costs was required.  On 26 April 2013 this application for leave to appeal was filed.

Leave to appeal

[4]      The decision of the High Court on an appeal from an inferior court is final unless a party obtains leave to appeal against the decision to the Court of Appeal.3

An application for leave must be made to the High Court in the first instance.4     It

must be made within 20 working days after the decision is given,5 although the Court has a discretion to extend that time period.6

[5]      Leave to appeal may be granted if the appeal raises a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the court system and the parties, and the delay involved in a further appeal.7

[6]      As set out in the application and submissions filed in advance of the hearing, there are two matters on which Mr Graham applies for leave to appeal.  The first is that there was a breach of natural justice in awarding damages on a cause of action in nuisance without hearing from the parties. The second relates to costs.

Breach of natural justice

[7]      I consider that it is not capable of bona fide and serious argument that the parties did not have the opportunity to provide submissions or adduce evidence on a

2      Graham v Scott HC Wellington CIV-2012-485-1722, 20 March 2013 (Minute).

3      Judicature Act 1908, s 67(1)(a).

4      Section 67(2).

5      High Court Rules, r 20.22(2).

6      Rule 1.19.

7      For the principles to be applied to determining whether leave should be granted, see Waller v

Hider [1998] 1 NZLR 412 (CA); Snee v Snee (1999) 13 PRNZ 609 (CA).

claim of nuisance in the High Court.   The claim of private nuisance was placed before Mr Graham in the District Court in the following ways:

(a)      The amended notice of claim filed by Mr Scott and Mr van Berkel requested an order for payment of $10,000 “in damages for the private nuisance resulting from disturbance of the easement ...”.

(b)The submissions filed in the District Court on behalf of Mr Scott and Mr van Berkel claimed “an order for payment of $10,000 from [Mr Graham/Elmslie Estate] to [Mr Scott and Mr van Berkel] in damages for the private nuisance resulting from the disturbance of the easement

...”.

(c)      The  submissions  set  out  the  sequence  of  events  alleged  to  have created the disturbance of the easement.   The claim was for compensatory damages (for minor damage to the road and for the wasted time, inconvenience and stress caused by the disturbance to the easement and the interference with Mr van Berkel’s relationship with the bank).

[8]      Despite this, the submissions in the District Court were advanced by counsel for Mr Graham/Elmslie Estate on the basis that the claim was in trespass for which actual loss needed to be shown for anything other than a nominal award of damages. The District Court Judge (perhaps on the basis of the submissions for Mr Graham/Elmslie Estate) proceeded on that basis.  But that was not correct.  On the appeal I quashed the award of exemplary damages (for the reasons set out in my judgment), replacing it with an award of general damages for private nuisance.8   That award was made on the basis of the claim that in fact had been made.

[9]      At the hearing of the application for leave, Mr Graham also contended that I

failed to take into account his interpretation of the facts.  He says that I overlooked that there was not a nuisance because Mr Scott and Mr van Berkel did not have any

8      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 applies where there is an appeal against an award of damages: Singh v Rutherford [2013] NZHC 2301 at [12].

right to Mr Graham’s land, they were able to drive around the concrete block, there was no evidence that Mr Scott needed an ambulance, an ambulance would not have been able to reach Mr Scott’s house anyway because of overhanging trees and a narrow right of way, and there was no evidence that the trees were dangerous.  He also contended that I failed to take into account that Mr Scott and Mr van Berkel had trespassed on his land.

[10]     In raising these matters Mr Graham is seeking to revisit findings made by the District Court Judge which were not subject to the original appeal to the High Court. My judgment  relied  on  those  findings,  but  applied  them  to  make  an  award  of damages for nuisance rather than the exemplary award the Judge had made.  It is not open to Mr Graham to raise these matters on an application for leave to appeal when they were not raised on the original appeal.  Moreover they do not raise any question of law.

Costs

[11]     The issue on the appeal was whether the Judge erred by taking into account conduct prior to the commencement of the proceeding in awarding costs to Mr Scott and Mr van Berkel.   I concluded that the Judge had not taken into account such conduct.  Rather he concluded that the Mr Scott and Mr van Berkel succeeded in the proceeding because they achieved a resolution to their dispute.   That was an appropriate basis on which to award costs.  I went on to say that they were entitled to costs for other reasons.  They were the successful party in the injunction application and they were also successful in the only issue (other than costs) that went to the Court for determination, that being the claim for damages.

[12]     Mr Graham contends that the costs award was in error because it followed from an erroneous view of the facts in the nuisance claim.  For the reasons discussed above, the challenge to the damages award for nuisance is without merit. It follows that an appeal on the costs award is also without merit on this basis.

[13]     Mr Graham also contends that it was wrong to take into account Mr Scott’s and Mr van Berkel’s success on the injunction application.  That is because he says the injunction was an “interim” one and Mr Scott and Mr van Berkel provided an

undertaking   as   to   damages.      However   that   submission   is   based   on   a misunderstanding of costs principles.   A successful party on an interlocutory application (which includes interim injunction applications) is ordinarily entitled to costs on that application.   In this case costs on the interim injunction application were reserved.  This meant that they were able to be considered at the time of the substantive hearing.

Discretion

[14]     This is not a case where it is appropriate to exercise my discretion to extend the time for the application for leave to appeal.  The issues raised do not have any prospect of success.  Some of the issues were not raised in the appeal.  In any event this is not a case involving an issue of sufficient importance to outweigh the cost and delay involved in a further appeal.  The claim involves a relatively small amount of damages and costs.   The amounts have been outstanding for a considerable time. They should be paid and the parties should put this dispute behind them.

Other orders

[15]     Mr Scott and Mr van Berkel sought a number of other orders in their notice of opposition to the application for leave. As to these:

(a)      It is not open to me on this application to vary a provision of the settlement agreement or orders made by the District Court Judge contingent on that settlement agreement.

(b)I did not order interest on the damages award and now is not the time to do so.

(c)      It is also not open to me on this present application for leave to appeal to set a deadline for when payment of the damages and costs are to be paid.

(d)Security for costs are not now appropriate when this application has already been heard and dismissed.

(e)       It is not open to me to revisit my decision quashing the exemplary

damages award.

Result

[16]     The application for leave to appeal is dismissed.

Mallon J