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 that there are no facts which could support a claim”.5

[8]This Court dismissed the appeal, holding that:

(a)The tort of nuisance does not require a neighbour to develop its land (or apply for resource consent to develop its land) in a way that best suits its neighbours.6

(b)It is a fundamental requirement of the tort of nuisance that a defendant is interfering with the reasonable  use  of  the  plaintiff’s  land,  but  Mr Karmarkar remains free to use his land and the ROW as he pleases.7

(c)The tort of nuisance does not require a party to apply for resource consents in a way that will best suit its neighbours. The Resource Management Act 1991 (RMA), Schedule 4, clause 7(1) does not impose a duty of care on neighbours and the council to ensure that development and subdivision of land benefits its neighbours.8

Mr Karmarkar’s submissions

[9]                 Mr Karmarkar asserts various grounds of appeal. In oral submissions he emphasises that the Court misunderstood his submissions in finding that the tort of nuisance did not impose a duty on developing neighbours and councils. He says he was not asserting a duty of care arises out of Sch 4 of the RMA. Instead, his

4      Karmarkar v Kajol Enterprises at [23].

5 At [24].

6      At [27]

7 At [27].

8 At [28].

submission was not that neighbours and councils must consider the effect of resource consent applications on a) other neighbours and b) the environment.

[10]             In terms of the public interest, Mr Karmarkar warns that “this case law will open flood gates for resource consent applicants and councils, to disregard any nuisance on neighbours if it is not physical”.

Applicable law

[11]             Section 60(1) of the Senior Courts Act 2016 provides that a decision of the High Court on appeal from the District Court is final unless a party, on application, obtains leave to appeal against the decision to the Court of Appeal.

[12]             For leave to be granted, the appeal must raise 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.9 Not every alleged error of law is of such importance either generally or to the parties as to justify further pursuit of litigation that has been twice considered and ruled upon by a Court.10

Discussion

[13]             I do not consider Mr Karmarkar’s proposed appeal raises any question of law or fact capable of serious argument, or that involves a matter of such public or private importance as to outweigh the cost and delay of another appeal.

[14]             As this Court previously noted11 the tort of nuisance requires an unreasonable interference with a person’s right to use or enjoy an interest in land, and the remedy of damages requires proof of actual imminent harm.12 However, Mr Karmarkar’s complaint is not that he is being deprived of the enjoyment of his own land, but that Kajol did not provide him with the benefit of the easement over Vector’s land. The damages he seeks include $150,000 to enable him to secure an easement from Vector;

9      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

10     Waller v Hider, above n 4, at 413.

11 At [26].

12     Stephen Todd and others Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 534.

$100,000 to secure an easement from Vector to create a bigger vehicle crossing;

$15,000 for traffic reports, $25,000 to be paid to Auckland Council for various charges and $8,000 for mental stress.

[15]             Regardless of how Mr Karmarkar characterises his submission in respect of sch 4 of the RMA, whether in terms of a duty of care or mandatory considerations, it does  not  support  his  claim  in  nuisance  against  Kajol.  As  previously  noted,   Mr Karmarkar remains free to enjoy his land and the ROW precisely as he did before.

[16]               Nor is there merit in Mr Karmarkar’s submission that this Court’s judgment will open a floodgate of cases where resource consent applicants and councils will disregard any nuisance on neighbours that is not physical. The District Court and High Court judgments are orthodox applications of well-established principles. There is nothing in the judgment that limits the statutory and other obligations of councils or applicants for resource consents under the RMA or otherwise.

[17]For these reasons, I dismiss Mr Karmarkar’s application for leave to appeal.

Result

[18]Mr Karmarkar’s application for leave to appeal is dismissed.

Robinson J