Jin v Narayan
[2025] NZCA 113
•11 April 2025 at 1.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA514/2024 |
| BETWEEN | YUCHEN JIN |
| AND | SHIVENDRA NARAYAN AND |
| Court: | Katz and Palmer JJ |
Counsel: | R O Parmenter for Applicant |
Judgment: | 11 April 2025 at 1.00 pm |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BWe award costs in favour of the respondents for a standard application on a band A basis, together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Introduction
The applicant, Mr Jin, applies for leave to bring an appeal from a decision of O’Gorman J in the High Court dismissing his appeal from a decision of Judge Forrest in the District Court.[1] The underlying dispute relates to the validity of fencing notices issued by the parties under the Fencing Act 1978 (the Act). Mr Jin first sought leave to appeal from the High Court, as required,[2] but that application was declined.[3]
[1]Jin v Narayan [2024] NZHC 1921 [judgment under appeal]. See also: Narayan v Jin [2023] NZDC 22460 [District Court judgment].
[2]Pursuant to s 60(2) of the Senior Courts Act 2016.
[3]Jin v Narayan [2024] NZHC 2189 [leave judgment] at [11].
The respondents, Mr Narayan and Dr Anand, oppose the leave application.
Background
Mr Jin lives next door to Mr Narayan and Dr Anand. Issues arose during the construction of the respondents’ house regarding an existing retaining wall and fence.
The Act provides a legal framework governing the rights and responsibilities of adjoining occupiers regarding boundary fences. Amongst other things, the Act sets out certain procedures that must be followed in relation to fencing issues, including how to notify a neighbour of such issues, how (and when) to respond to such notices, how costs are to be shared, how to resolve disagreements, and what steps to take if a neighbour refuses to cooperate.[4]
[4]Fencing Act 1978, ss 9–14.
Mr Jin issued a fencing notice (the validity of which is in dispute) on 14 December 2022, alleging damage to the fence and retaining wall between the adjoining properties due to the construction work and earthworks on the respondents’ property.
Mr Narayan then issued a cross-notice on 23 December 2022, objecting to Mr Jin’s notice and making a counter-proposal. Amongst other things, he suggested that Mr Jin rectify the retaining wall. Subsequently, without prejudice discussions occurred. On 16 May 2023, Mr Narayan issued a new fencing notice, including quotes for the proposed fencing works (the May 2023 fencing notice). He proposed that Mr Jin meet 50 per cent of the fencing costs. When no response or cross-notice was received within 21 days, the respondents selected a contractor and requested payment from Mr Jin of his share of the costs. Mr Jin objected, claiming he had responded earlier by emailing Mr Narayan and disputing the cost. Mr Narayan denied receiving any earlier response.
After further disputes, the fence was ultimately constructed at a total cost of $20,432.37.[5]
The District Court decision
[5]Judgment under appeal, above n 1, at [13].
Mr Jin disputed his liability to meet half the costs of constructing the new fence and District Court proceedings ensued. The issues included:[6]
(a)whether Mr Jin’s original fencing notice was valid (the Judge noted it failed to comply with the requirements of the Act); and
(b)whether Mr Narayan’s May 2023 fencing notice was valid (and superseded the earlier fencing notice and cross-notice).
[6]District Court judgment, above n 1, at [11] and [23(a)].
On the second issue, Judge Forrest found that the Act enabled the giving of further notices at any time to facilitate the Act’s purpose of speedy, inexpensive and equitable resolution of fencing issues.[7] Consequently, the May 2023 fencing notice was valid, and the respondents were entitled to be reimbursed 50 per cent of the fencing costs as Mr Jin had not issued a cross-notice within the required 21 days.[8]
[7]At [22].
[8]At [27]–[28].
Given her conclusion on this issue, the Judge said she was not required to determine the first issue (the validity of Mr Jin’s original fencing notice). However, the Judge observed that the original notice “failed to comply with the requirements of s 12 [of the Act] in a couple of material respects”.[9] Specifically, the notice did not comply with the service requirements set out in s 12 of the Act, which requires personal service or posting by registered letter, and did not specify the work proposed, the materials to be used or the estimated costs pursuant to s 11(2).[10]
The High Court decision
[9]At [23(a)].
[10]At [23(a)], n 3.
Mr Jin appealed to the High Court. The two issues before the High Court, as articulated by O’Gorman J, were:
(a)whether the Act permits “an earlier notice to be revoked, replaced, or amended” (the legal issue);[11] and
(b)whether the May 2023 fencing notice was valid and intended to supersede Mr Narayan’s earlier counter-proposal, which was included in his cross‑notice dated 23 December 2022 (the factual issue).[12]
[11]Judgment under appeal, above n 1, at [28].
[12]At [33].
On the legal issue, the Judge found that the Act permits an earlier notice to be revoked, replaced, or amended. She agreed with Judge Forrest that such an interpretation is consistent with the purpose of the Act, to facilitate the speedy and equitable resolution of fencing disputes.[13]
[13]At [28].
On the factual issue, the Judge found it unequivocal that the respondents intended the May 2023 fencing notice to supersede the earlier cross-proposal.[14] Given that Mr Jin had not validly issued a cross-notice to the May 2023 fencing notice, the respondents were entitled to be reimbursed for 50 per cent of the fence construction costs.[15] The appeal was accordingly dismissed.[16]
The High Court leave decision
[14]At [33], citing SGAH Investments Ltd v Mei Enterprises Ltd [2021] NZHC 1588; and SGAH Investments Ltd v Mei Enterprises Ltd [2022] NZCA 103.
[15]Judgment under appeal, above n 1, at [34].
[16]At [35].
Mr Jin then applied to the High Court for leave to bring a second appeal to this Court. The approach to applications for leave to bring a second appeal is well-settled. The test for leave involves considering whether the appeal “raise[s] some 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 and delay of the further appeal”.[17] Not every alleged error of law is sufficiently important to justify pursuit of litigation already twice considered. There may, however, be cases where an alleged error is of sufficient importance to the applicant as to outweigh a lack of general or precedential value. The function of this Court on a second appeal is to clarify the law and “determine whether it has been properly construed and applied”.[18] The Court should also consider whether the scarce time and resources of this Court would be wasted, and additional expense incurred, without realistic hope of benefit. The guiding principle is the interests of justice.[19]
[17]Waller v Hider [1998] 1 NZLR 412 (CA) at 413; and Snee v Snee (1999) 13 PRNZ 609 (CA) at [15]. This Court has confirmed this continuing application of this approach in recent years: see, for example, Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276, (2018) 24 PRNZ 500 at [4]; and Young v Ross [2023] NZCA 411 at [8].
[18]Waller v Hider, above n 17, at 413.
[19]At 413.
Applying these principles, the Judge found that the high threshold for granting leave to appeal was not met, given the amount at stake.[20] There were no special features justifying a second appeal, and the delay and cost of a further appeal was not warranted.[21] The Judge did not accept that there was any public interest in the issues raised being determined by a higher Court, given the absence of conflicting authority and the fact that the Act has been in force for over 35 years without the disputed issues having previously arisen. The Judge also placed weight on the fact that both the District Court and the High Court had reached the same conclusion, which increased the certainty of the outcome.[22] The Judge also noted that the respondents had already incurred significant costs in both the District Court and High Court.[23]
Should leave be granted?
[20]The Judge applied the principles articulated in Greendrake v District Court of New Zealand [2020] NZCA 122, which related to an application for leave to appeal of an interlocutory order under s 56 of the Senior Courts Act. Those principles, however, are substantively the same as for an application for leave to appeal under s 60: Leave judgment, above n 3, at [6].
[21]Leave judgment, above n 3, at [8]–[9].
[22]At [10].
[23]At [9].
Mr Jin now applies to this Court for leave to bring a second appeal on the following question of law:
Where “Party 1” serves a Fencing Act notice and “Party 2” responds by serving a Fencing Act cross-notice and the differences therein remain unresolved by agreement or by the Court, may Party 2 abrogate Party 1’s Fencing Act notice by serving either an amended Fencing Act cross-notice or a purported fresh Fencing Act notice?
If granted leave, Mr Jin intends to advance largely the same arguments that he raised in the lower Courts. Specifically, he contends that the Act does not permit occupiers to issue a second fencing notice that has the effect of usurping or superseding earlier notices.
The respondents oppose a grant of leave. They submit that the lower Courts correctly determined the question of law raised by Mr Jin. They further say that the legal issue will not be determinative, in any event, because the substantive claim in the District Court does not turn on the legal issue. The reason for this, the respondents say, is that Mr Jin’s original notice was invalid because it failed to comply with s 12 of the Act in material respects (as set out at [10] above). The respondents say that the May 2023 fencing notice was therefore the first and only valid notice.
We consider first the merits of the proposed appeal. The application and supporting submissions set out the arguments that Mr Jin intends to advance on the proposed question of law (if granted leave) in some detail. We accept that the statutory interpretation issue raised by the proposed appeal is not entirely straightforward and there is at least some prospect of success on appeal if leave were granted. It follows that the proposed appeal raises a question of law that is capable of bona fide and serious argument.
The outcome of the leave application therefore largely turns on whether the question of law raised is of sufficient importance to outweigh the cost and delay of a further appeal, having regard to the scarce time and resources of this Court.
Mr Jin submits that the proposed question of law is of sufficient public importance to justify a further appeal because almost every residential property is likely to have a shared fence with neighbours. In such circumstances, the amount at stake is “neither here nor there” given the public importance of “getting this right”.
We agree with the reasons given by the Judge for declining a grant of leave (as summarised at [15] above). We are not persuaded that the issues raised by this appeal are of sufficient public importance to justify the costs and delays associated with a further appeal. There is no evidence that the interpretation issue identified by Mr Jin is causing widespread, or indeed any, difficulty in practice. Indeed, as the Judge noted in the leave judgment, the issue does not appear to have previously come before the courts in the more than 35 years that the Fencing Act has been in force.[24] Nor is this a situation where there are conflicting High Court authorities. Accordingly, if the issue arises again, the decision of the High Court (which is carefully and fully reasoned) will provide guidance and certainty as to the correct approach. Further, as the Judge noted, both of the lower courts reached the same conclusion on the correct interpretation of the Act, which warrants a somewhat higher degree of confidence in the outcome than if their decisions were conflicting.[25]
[24]At [10].
[25]At [10].
We also accept the respondents’ submission that resolution of the legal issue will not be determinative of the underlying dispute, in any event, because the respondents’ argument that Mr Jin’s original notice was invalid has not yet been determined by the District Court (as we explain at [10] above). Hence, even if Mr Jin was to succeed on appeal to this Court, that would not be the end of the matter. If Mr Jin’s original notice was found by the District Court to be invalid, then the May 2023 fencing notice would be the only valid notice.
The respondents have already been put to considerable legal costs in respect of a dispute involving only about $10,000. The costs incurred in a further appeal would likely be disproportionate to the relatively small sum involved, as would any further costs that may have to be incurred in the District Court if the appeal were successful. Mr Jin has now had two opportunities to persuade a court that his interpretation of the Act is correct and has been unsuccessful on both occasions. The interests of finality, in relation to what is a relatively minor dispute, weigh strongly against a grant of leave.
In conclusion, for the reasons outlined above, we have not been persuaded that it is in the overall interests of justice to grant leave to bring a second appeal.
Result
The application for leave to appeal is declined.
We award costs in favour of the respondents for a standard application on a band A basis, together with usual disbursements.
Solicitors:
Ku & Partners Ltd, Auckland for Applicant
Hesketh Henry, Auckland for Respondents
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