Karmarkar v Kajol Enterprises Limited - [2025] NZCA 10

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA510/2024
[2025] NZCA 10

BETWEEN	MADHAV HARI KARMARKAR Applicant
AND	KAJOL ENTERPRISES LIMITED Respondent

Court:	Thomas and Ellis JJ
Counsel:	Applicant in person No appearance for Respondent
Judgment: (On the papers)	14 February 2025 at 10.00 am

JUDGMENT OF THE COURT

The application for special leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Mr Karmarkar seeks special leave to appeal from a decision of Robinson J in the High Court, dismissing his appeal from a decision of the District Court striking out his statement of claim.[1] Leave to appeal has been declined by the High Court Judge.[2]
[1]Karmarkar v Kajol Enterprises Ltd [2024] NZHC 683 [High Court appeal judgment]; and Karmarkar v Kajol Enterprises Ltd [2023] NZDC 14958 [District Court judgment]. Leave to appeal is sought under s 60(2) of the Senior Courts Act 2016.
[2]Karmarkar v Kajol Enterprises Ltd [2024] NZHC 1949 [High Court leave judgment].
Although represented in both the District Court and the High Court, Kajol Enterprises Ltd (Kajol) has taken no steps in relation to the application for special leave. On 30 August 2024, Cooke J declined to grant special leave to appeal under r 19B(1) of the Court of Appeal (Civil) Rules 2005,[3] and directed the Registry to timetable submissions and allocate a hearing on the papers.

What is the case about?

[3]Rule 19B of the Court of Appeal (Civil) Rules 2005 provides that a Judge may grant leave to appeal if the respondent has not responded to the application within 10 working days of service.

In the High Court leave judgment, the High Court Judge summarised the relevant background as follows:[4]
[3]       Mr Karmarkar owns a property at 34 White Swan Road, Mount Roskill, Auckland. The respondent, Kajol Enterprises Limited (Kajol), owns 34B and 34C White Swan Road. The parties share a right of way (ROW) over a long driveway which runs from their properties down onto White Swan Road.
[4]       In 2018, Kajol applied for and received resource consent from Auckland Council (the Council) to subdivide its property. Conditions of that consent were that Kajol obtain an easement from another neighbour, Vector Limited, and construct a passing bay on the servient land adjacent to and accessible from the existing ROW.
[5]       Mr Karmarkar also wishes to subdivide his property. He says that both the Council and Kajol have breached their obligations to him and have caused him loss. His essential complaint is that he does not have the benefit of the easement Council required Kajol to obtain from Vector, with the right to use the passing bay.
[6]       In separate proceedings he alleged that the Council breached its obligations to him by not requiring Kajol to provide him with the benefit of the easement. On 22 October 2022 Judge D Clark struck out Mr Karmarkar’s claim against the Council. Judge Clark held that the Council did not…

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.

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Details

Case: [2025] NZCA 10
Decision Date: 14 February 2025 at 10.00 am

CaseChat Overview and Summary

Madhav Hari Karmarkar sought special leave to appeal a decision of the Court of Appeal, which dismissed his appeal against a decision of the High Court, which had itself dismissed an appeal from a decision of the District Court striking out his statement of claim. Karmarkar sought damages from Kajol Enterprises Limited for alleged nuisance and breach of duty by not providing him with an easement over Vector Limited’s land. The Court of Appeal held that Karmarkar's application did not meet the criteria for special leave to appeal. The Court found that Karmarkar's complaints were not that Kajol had deprived him of the enjoyment of his land, but rather that Kajol had not provided him with the benefit of an easement over Vector’s land. The Court held that Karmarkar remained free to use his land and the right of way as he pleased, and that the tort of nuisance does not require a party to develop its land in a way that best suits its neighbours. The Court also held that Karmarkar's claim did not involve a question of law or fact capable of serious argument, nor did it involve a matter of such public or private importance as to outweigh the cost and delay of another appeal.

The Court of Appeal declined the application for special leave to bring a second appeal. The Court held that Karmarkar had not addressed the criteria governing the grant of special leave and so the Court was unable to ascertain or address his position on them. The Court found that any misunderstanding in the courts below as to the nature of Karmarkar’s claims only served to demonstrate why the District Court was right to strike them out. The Court held that the appeal did not raise some question of law or fact capable of bona fide and serious argument. Nor was this a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

Orders