Karmarkar v Kajol Enterprises Limited - [2024] NZHC 1949

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1799

[2024] NZHC 1949

BETWEEN
MADHAV HARI KARMARKAR

Appellant

AND

KAJOL ENTERPRISES LIMITED

Respondent

Hearing: 9 July 2024

Appearances:

M Karmarkar as self-represented Appellant S Raju for the Respondent

Judgment:

16 July 2024

JUDGMENT OF ROBINSON J

[Application for leave to appeal]

This judgment was delivered by me on 16 July 2024 at 12:30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Aaron Kashyap, Auckland

Copy to: Mr Karmarkar

KARMARKAR v KAJOL ENTERPRISES LIMITED [2024] NZHC 1949 [16 July 2024]

Introduction

[1] Mr Madhav Hari Karmarkar seeks leave to appeal the Court’s judgment of 25 March 20241 dismissing his appeal of Judge Davenport KC’s judgment striking out his statement of claim in the District Court.2

Factual and procedural background

[2] The facts of this dispute are well-traversed in the earlier judgments. Only a brief summary is required here.

[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 owe Mr Karmarkar a duty of care when it issued his neighbour Kajol’s recourse consent.3

1      Karmarkar v Kajol Enterprises Ltd [2024] NZHC 683.
2      Karmarkar v Kajol Enterprises Ltd [2023] NZDC 14958.
3      Karmarkar v Auckland Council [2022] NZDC 19915.

[7] On 3 July 2023, Mr Karmarkar issued separate District Court proceedings against Kajol. He alleges nuisance and seeks $348,000 in damages. On 20 July 2023, Judge Davenport granted Kajol’s application to strike out Mr Karmarkar’s statement of claim on the basis that it did not disclose any arguable cause of action: “No nuisance has been committed nor is it arguable…there is no prospect of the nuisance claim succeeding on the facts or the law”.4 Her Honour did not consider repleading could save the claim: “The bald truth is…

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: [2024] NZHC 1949
Decision Date: 16 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Madhav Hari Karmarkar sought leave to appeal the dismissal of his appeal against Kajol Enterprises Limited. The appeal pertained to the earlier dismissal of Karmarkar’s statement of claim in the District Court, where his claims of nuisance were struck out. Karmarkar alleged that Kajol and the Auckland Council had breached their obligations by not providing him with the benefit of an easement over neighbouring property, causing him loss. The District Court ruled that Karmarkar's claim did not disclose any arguable cause of action, and the High Court upheld this decision.

The legal issues before the court were whether Karmarkar's proposed appeal raised any question of law or fact capable of serious argument and whether it involved a matter of sufficient public or private importance to justify another appeal. Karmarkar argued that the courts had misunderstood his submissions and that his complaint was about Kajol's failure to provide him with the benefit of an easement. He also claimed that the court's judgment would lead to resource consent applicants and councils disregarding non-physical nuisances on neighbours.

The court found that Karmarkar’s proposed appeal did not raise any question of law or fact capable of serious argument. The court reiterated that the tort of nuisance required an unreasonable interference with a person’s right to use or enjoy an interest in land, and Karmarkar's complaint was not about being deprived of the enjoyment of his land but about Kajol not providing him with the benefit of an easement. Furthermore, the court noted that its judgment did not limit the statutory and other obligations of councils or applicants for resource consents. Consequently, the court dismissed Karmarkar’s application for leave to appeal.

As a result, Madhav Hari Karmarkar's application for leave to appeal the High Court’s decision was dismissed.

Orders