Jin v Narayan

[2024] NZHC 2189

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2887 [2024] NZHC 2189

UNDER

Section 124 of the District Court Act 2016

BETWEEN

YUCHEN JIN

Applicant

AND

SHIVENDRA NARAYAN and SAMRATA HEMAANTIKA ANAND

Respondents

Hearing:

On the papers

Counsel:

R O Parmenter for Applicant

A L Stuart and N P Gillies for Respondents

Judgment:

6 August 2024

JUDGMENT OF O’GORMAN J

[On notice application for leave to appeal]

This judgment was delivered by me on 6 August 2024 at 2.30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

R O Parmenter, Auckland Ku & Partners Ltd, Auckland Hesketh Henry, Auckland

JIN v NARAYAN [2024] NZHC 2189 [6 August 2024]

[1]    On 18 July 2024, the applicant, Yuchen Jin, filed an interlocutory application on notice seeking leave to appeal my decision in this proceeding dated 12 July 2024.1 The underlying dispute was about costs payable following the issue of a notice under the Fencing Act 1978 (the Act).  The amount at  stake was the sum of $10,216.18  (50 per cent of the costs incurred in the construction of the fence), plus legal costs.

[2]    The Disputes Tribunal has jurisdiction to determine disputes under that Act for amounts up to $30,000.2 The proceeding was nevertheless first commenced in the District Court. In a reserved decision dated 23 November 2023, Judge J Forrest found that a fresh notice issued on 16 May 2023 was a valid notice issued under the Act. Given that no cross-notice was issued, Mr Jin was liable to reimburse 50 per cent of the costs incurred in the construction of the fence referred to in the 16 May 2023 notice.

[3]    Mr Jin appealed that decision to the  High Court.  In a judgment  issued on  12 July 2024, I dismissed the appeal, upholding the outcome  reached  in  the  District Court. This centred on my analysis of whether a replacement notice could be issued under the Act as a matter of interpretation, and whether this is what occurred as a matter of fact. I found that the 16 May 2023 notice was valid and intended to supersede the earlier cross-notice in respect of the proposed fencing works.

[4]    The applicant seeks leave to appeal on the grounds that my conclusion is wrong in fact and in law. The applicant contends that this is a question of law capable of bona fide and serious argument, and of sufficient public importance to outweigh the cost and delay of a further appeal.

[5]    The respondents oppose the application for leave to appeal on the grounds that the intended appeal lacks merit, the cost of the intended appeal outweighs the amount at stake, and the intended appeal does not involve issues of wider public interest, nor is it in the interests of justice for the application to be granted.

1      Jin v Narayan [2024] NZHC 1921.

2      Fencing Act 1978, ss 13, 24A and s 2 definition of “court”.

Legal principles

[6]    In Greendrake v District Court of New Zealand,3 the Court of Appeal recognised the following considerations as relevant on an application for leave to appeal:

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[7]    In the context of an application for leave to appeal  under  s  60  of  the  Senior Courts Act 2016 (in respect of a decision on appeal from the District Court), the intention of the legislature is that one appeal is normally sufficient:4

From this it follows that the case must show some features which justify a second appeal. The indicia mentioned by Salmond J are therefore still important. But, as he observed, the section places no fetters on the exercise of the discretion to grant leave. That being so, the guiding principle in the end must be the requirements of justice. In that the extended jurisdiction of the District Court may on occasions be important. While weight will be given to the fact that the High Court Judge has refused leave, an application to this Court is not an appeal and the discretion is to be exercised afresh.

Analysis

[8]    Given the amounts at stake in this appeal, I do not consider that the high threshold for granting leave to appeal is met. There are no special features that justify a second appeal. The circumstances do not warrant the delay and cost of a further appeal to the Court of Appeal, and the interests of justice are not served by allowing another appeal.

3      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

4      Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at 346–347 (per Somers J), referencing Salmond J in Rutherfurd v Waite [1923] GLR 34, quoted in Laura O’Gorman (ed) Sim’s Court Practice (online ed, LexisNexis) at [SEN60.6].

[9]    If the dispute had commenced before the Disputes Tribunal, there would be no scope to appeal the issues to the Court of Appeal. The respondents have already incurred significant costs — the costs of two appeals seem disproportionate to the amounts at stake.

[10]   I do not accept that there is any public interest requirement that these issues be determined at a higher level. There is no conflicting authority, so there is no need for clarification or resolution of any uncertainty at a higher level. Indeed, the present provisions under the Act have been in force for more than 35 years, apparently without the disputed issues being determined before. There is now increased certainty with a District Court and High Court decision both reaching the same conclusion. Another appeal is not justified in the circumstances.

[11]Accordingly, I decline the application for leave to appeal.

O’Gorman J