Jin v Narayan - [2024] NZHC 1921

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2887

[2024] NZHC 1921

UNDER Section 124 of the District Court Act 2016

BETWEEN

YUCHEN JIN

Appellant

AND

SHIVENDRA NARAYAN and SAMRATA HEMAANTIKA ANAND

Respondents

Hearing: 27 June 2024

Appearances:

R O Parmenter for Appellant

A L Stuart and A R Hunt for Respondents

Judgment:

12 July 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 12 July 2024 at 3.30 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 1921 [12 July 2024]

[1] This is an appeal from the reserved decision of Judge J Forrest about costs payable following the issue of a notice under the Fencing Act 1978 (the Act).1

[2] The amount at stake is the sum of $10,216.18 (50 per cent of the costs incurred in the construction of a fence), plus legal costs. The key issue in dispute is whether the notice issued by the respondents on 16 May 2023 was valid and superseded an earlier cross-notice issued by them on 23 December 2022, which in turn objected to a notice dated 14 December 2022 issued by the appellant.

[3] On appeal, the appellant’s position is that the first notice and cross-notice had not lapsed, nor had the proposals set out in those documents been agreed or determined by a court. The appellant says it follows that the respondents were not permitted to issue any new notice, so the second notice was invalid and of no effect.

Factual background

[4] The appellant and the respondents live on neighbouring properties on Armstrong Farm Drive, East Tāmaki Heights. The respondents purchased their property with the intention of building a family home, hoping to complete construction by January 2023. During the course of construction, the respondents’ architect raised a concern about the potential failure of the retaining wall on the original fence between the two properties. At the respondents’ request, their architect raised this issue with Mr Jin (the appellant).

[5] On 14 December 2022, Mr Jin responded by serving a notice by email to the respondents’ conveyancing lawyer, claiming that the construction activities had caused damage to the original fence. The notice purported to require the respondents to stop further damage and to repair and make good any damage to a workmanlike standard within 21 days.

[6] On 23 December 2022, the respondents purported to issue a cross-notice objecting to Mr Jin’s notice and making a counter-proposal. The objection stated, among other things, that the earthworks and construction activities had not directly

1 Narayan v Jin [2023] NZDC 22460.

caused damage to the fence and retaining wall. Rather, the issues were a result of Mr Jin’s own actions and failures, as outlined in an attached letter from Network Builders Ltd dated 21 December 2022. In terms of the counter-proposal, it was that…

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 Jin v Narayan

Details

AGLC: Jin v Narayan [2024] NZHC 1921
Case: [2024] NZHC 1921
Decision Date: 12 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Jin v Narayan involved a dispute over costs related to the construction of a dividing fence between neighbouring properties. The appellant, Yuchen Jin, appealed against a District Court decision that required him to pay half of the costs of the fence. The respondents, Shivendra Narayan and Samrrata Hemaantika Anand, issued a fencing notice under the Fencing Act 1978, claiming that the appellant's construction activities had damaged the existing fence. The appellant disputed this claim and issued a cross-notice objecting to the respondents' notice. Following further negotiations and the issuance of another notice by the respondents, the matter was brought before the District Court, which ruled in favour of the respondents. The central legal issue was whether the second notice issued by the respondents was valid and could supersede the earlier cross-notice. The High Court, in dismissing the appeal, held that the statutory provisions permitted the issuance of a new notice and that the respondents' second notice was indeed valid and intended to supersede the earlier counter-proposal. The court emphasised the importance of facilitating the speedy and equitable resolution of fencing disputes, in line with the purpose of the Act. The appeal was therefore dismissed, and the respondents were awarded costs.

The reasoning of the High Court hinged on interpreting the statutory provisions of the Fencing Act 1978, alongside principles of contract law. The court examined the language of the Act and found that it did not restrict the right to issue further notices, thereby allowing for the replacement of earlier notices. This interpretation aligned with the Act's objective to provide a mechanism for resolving fencing disputes efficiently and without unnecessary legal costs. The court also considered the factual context in which the second notice was issued, concluding that the respondents' intention to replace the earlier counter-proposal with a new plan for the fence was clear and unequivocal. The appellant's argument that such a strategy could lead to repeated notices and unnecessary court costs was rejected, as the court believed that the potential for such behaviour did not justify imposing additional court costs. The court thus upheld the District Court's decision, affirming that the respondents were entitled to reimbursement for half of the fencing costs.

Orders