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…

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 [2013] NZHC 3103
Case: [2013] NZHC 3103
Decision Date: 22 November 2013

CaseChat Overview and Summary

The case of Graham v Scott involved a dispute between Tony George Graham and Elmslie Estate Limited, the appellants, and Gavin Robert Scott and Patrick Robin van Berkel, the respondents, over a right of way. The dispute arose from a settlement reached in the District Court, which included an award of damages and costs. The appellants appealed the District Court's decision to the High Court, which resulted in a judgment on 26 October 2012. In this judgment, the High Court quashed the award of exemplary damages and replaced it with an award of general damages for private nuisance, while also dismissing the appeal against costs. The appellants subsequently applied for leave to appeal this High Court judgment to the Court of Appeal, which was opposed by the respondents.

The legal issues before the court were twofold. Firstly, the appellants argued that there was a breach of natural justice in awarding damages on a cause of action in nuisance without hearing from the parties. Secondly, the appellants contended that the costs award was in error because it followed from an erroneous view of the facts in the nuisance claim. The court found that neither of these arguments was capable of bona fide and serious argument, as the claim for private nuisance had been adequately presented in the District Court, and the costs award was based on an appropriate assessment of the parties' success in the proceedings.

The court dismissed the application for leave to appeal, reasoning that the issues raised did not have any prospect of success and were not of sufficient importance to warrant further appeal. The court also noted that the amounts in dispute were relatively small and had been outstanding for a considerable time, and it was in the interests of all parties to put the dispute behind them.

The final orders of the court were that the application for leave to appeal was dismissed, and the appellants were directed to pay the damages and costs awarded by the High Court. The court declined to make any other orders, including varying the settlement agreement, ordering interest on the damages award, setting a deadline for payment, or revisiting the decision to quash the exemplary damages award.

Orders