Karmarkar v Kajol Enterprises Limited
[2024] NZHC 683
•25 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1799
[2024] NZHC 683
BETWEEN MADHAV HARI KARMARKAR
Appellant
AND
KAJOL ENTERPRISES LIMITED
Respondent
Hearing: 20 March 2024 Appearances:
Appellant in person
S Raju for the respondent
Judgment:
25 March 2024
Reissued:
26 March 2024
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 25 March 2024 at 3:30 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 683 [25 March 2024]
Introduction and background
[1] The appellant, 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 have a shared driveway created by easement in transfer 654271 on CT NA140A/538 (on Mr Karmarkar’s title) and CT NZ1905/5 (on Kajol’s title). That easement was created in 1961.
[2] The parties’ right of way (ROW) is over a long driveway which runs from their adjoining properties down to White Swan Road. There are other neighbouring properties between the parties’ properties and White Swan Road, which also adjoin the driveway and appear to have rights to use it. One of those neighbours is Vector Limited (Vector).
[3] Mr Karmarkar’s land is 1526 m2. Kajol’s land is 1776 m2. In 2018, Kajol successfully applied for resource consent to subdivide its property. It was a condition of the resource consent granted by Auckland Council (the Council) in 2018 that Kajol must obtain a further easement from Vector in order to construct a passing area adjacent to and accessible from the existing ROW. The easement was created and funded by Kajol whose title, CT NA1905/5, records its ROW created by Easement Instrument 10515276.4.
[4] Mr Karmarkar says that various errors made by the Council and Kajol during the consenting process have meant that they have breached their obligations to him and caused him loss. He issued proceedings against the Council, but these were struck out by Judge Clark on 20 October 2022.1
[5] On 3 July 2023, Mr Karmarkar issued separate District Court proceedings against Kajol, seeking $348,000 damages together with costs. On 20 July 2023, Judge Davenport KC granted Kajol’s application to strike-out Mr Karmarkar’s Statement of Claim on the basis that it does not disclose any arguable cause of action.2 Having discussed matters, apparently in some detail, with Mr Karmarkar, Judge Davenport
1 Karmarkar Madhav Hari v Auckland Council [2022] NZDC 19915.
2 Karmarkar v Kajol Enterprises Ltd [2023] NZDC 14958 at [22] and [25].
also concluded that the Statement of Claim could not be repleaded in a way that would save it. In Judge Davenport’s view, “the bald truth is that there are no facts which support a claim”.3
[6]Mr Karmarkar now appeals.
Legal principles
Strike-out
[7] An application to strike-out a claim in the District Court is brought under r 15.1 of the District Court Rules 2014 which is essentially the same as r 15.1(1)–(3) of the High Court Rules 2016. It provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it —
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as it considers just.
3 At [24].
[8] As Judge Davenport noted, the principles relating to strike-out are well settled.4 Judge Davenport referred to the High Court’s decision in Telecom NZ Limited v Clear Communications Limited5 and correctly noted the relevant principles as follows:6
(a)The Court will not attempt to resolve generally disputed issues of fact, but the pleadings should be struck out if there is no ability to succeed;
(b)The jurisdiction is exercised sparingly and only in very clear instances where the Court is satisfied there is no possibility of success;
(c)If an amendment can be made to cure any pleading defect, then an opportunity to do so should be given;
(d)Where the issue is a question of law capable of a decision on the material before it then even if extensive argument is required it is open to the Court to strike out the pleading if the thresholds above are satisfied.
Approach on appeal
[9] Mr Karmarkar has a general right of appeal which takes place by way of rehearing.7
Notice of Appeal
[10] Mr Karmarkar has put forward several grounds of appeal in his Notice of Appeal and subsequent submissions. Most relevantly and generally, he appeals on the basis that Judge Davenport “erred in upholding that there is no actionable case of private nuisance, despite the high bar on the application of summary judgement [sic] by the defendant.” He also says that Judge Davenport erred in awarding summary judgment when “a full hearing of evidence was required”, that the Judge should have considered the expenses incurred by Mr Karmarkar due to Kajol’s “faulty resource consent”, and that the Judge did not adequately assess the disputed issues involving the ROW.
[11]Mr Karmarkar’s appeal proceeds by way of rehearing.
4 See, for example, Matsuoka v Zambion Ltd [2019] NZHC 1365 at [46], citing Carter Holt Harvey Ltd v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [10]; and Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267.
5 Telecom NZ Ltd v Clear Communications Ltd (1997) 6 NZBLC 102, 325.
6 Karmarkar v Kajol Enterprises Ltd, above n 2, at [16].
7 High Court Rules 2016, r 20.18; District Court Act 2014, s 127.
The Statement of Claim
[12] Mr Karmarkar’s Statement of Claim does not identify a particular cause of action in the usual way. Amongst other things, it alleges that:
(a)Mr Karmarkar applied for an amendment to approved resource consents, but the “Auckland Council took considerably more time than allowed under the law to give its decision of limited notification”.
(b)The decision has cost Mr Karmarkar a substantial amount of money because of errors in a resource consent approved by the Council for Kajol’s property.
(c)The resource consent application filed by Kajol in relation to its property contained several errors and omissions upon which counsel relied. Mr Karmarkar alleges that Kajol “incorrectly identified the quantum of vehicle movements on both the driveway and understated the movements generated by [Mr Karmarkar’s property]”.
[13] Mr Karmarkar alleges that Kajol made various errors in its application for the resource consent to subdivide his property, including as to the relevant use of the ROW, and by people going to and from Mr Karmarkar’s property. He alleges further that the length and width of the passing bay required by the Council were not properly evaluated, nor was the ability for vehicles readily to pass each other. He alleges that:
vi.The passing bay easement only identifies 34B & C white swan road [sic] as the party authorised to use it. There is no lawful ability for other users of the access way to share its use, even when meeting a vehicle that is associated with 34B & C white swan road [sic].
vii.Vehicle conflict mitigation on the access way itself proposes mirrors on third party property and assets. No evidence of consultation or documentation as to be able to lawfully provide this mitigation is provided.
[14] Mr Karmarkar alleges that the resource consent is deficient. He alleges that the passing bay is ineffective and “… cannot be concluded to mitigate the adverse effects on other users of the driveway of the cumulative increase in vehicle
movement”.8 Mr Karmarkar alleges further that Kajol “has not considered, who may lawfully use the passing bay easement”, and that the easement is “invalid as effective mitigation”.9 As such:
xii. It follows that council’s s95 RMA – Assessment of Affected Parties is in error and hence the other users of the access way are adversely affected by the non-compliance with Standard E27.6.4.3.2. (T148) – “provision of a passing bay every 50 m” with “minimum 5.5.m formed width and 7m length with 45֯ tapers”.
[15]After this, Mr Karmarkar pleads as follows:
f.Plaintiffs contend that defendant is causing substantial and unreasonable influence on its use and enjoyment of land.
g.Plaintiffs contend that private nuisance is a tort of strict liability.
h.Plaintiffs further contend that the pure law of torts states that damages are for the loss of the ability to earn, regardless of actual; whereas the day-to-day applied law operates on the basis that damages are calculated based on earnings lost.
[16] The Statement of Claim then refers to various authorities, before Mr Karmarkar requests the Court to order:
1.To order defendant to pay following amounts as compensation to the plaintiff.
2.$ 150,000 to secure easement on passing by from M/S Vector.
3.$ 100,000 to secure easement from M/S Vector to create bigger vehicle crossing.
4.$ 15000 for traffic reports.
5.$ 50,000 to be paid to M/S CLC for additional processing.
6.$ 25000 to be paid to Auckland Council for various charges.
7.$ 8000 for mental stress.
8.costs.
8 Statement of Claim, para ix.
9 Statement of Claim, para x. and xi.
The essence of Mr Karmarkar’s grievances
[17] Judge Davenport noted that she found the Statement of Claim somewhat difficult to navigate.10 With respect to Mr Karmarkar, so did I. So, like Judge Davenport, I engaged in a helpful discussion with Mr Karmarkar to try to distil the essence of his complaints against Kajol. This was important because, as Judge Davenport correctly noted, if amendments can be made to cure a defective pleading the plaintiff should be given an opportunity to make those amendments.11
[18] Mr Karmarkar confirms that he sues Kajol in the tort of nuisance. He referred me to various authorities which, he submits, demonstrate the strength of his claim.12 Mr Karmarkar submits that the way in which Kajol went about obtaining its resource consent to subdivide its land has impacted on his use and enjoyment of his own land.
[19] Mr Karmarkar explains that, like Kajol, he has also applied to the Council for resource consents to subdivide his land. Mr Karmarkar’s oral submissions emphasised the effect that Kajol’s resource consent, and the process by which it had obtained that consent, had had on Mr Karmarkar’s own application for resource consents.
[20] In the course of dealing with Mr Karmarkar’s application, the Council considered what might be required to manage the increased vehicular use of the ROW following that subdivision. Mr Karmarkar submits that, when the Council was dealing with Kajol’s resource consent application for subdivision, it should have required the respondent not merely to build the passing bay in order to “mitigate vehicular conflict” on the ROW, but to widen the ROW itself and to install traffic lights. Mr Karmarkar says that if the Council had required Kajol to carry out this work, he would have
10 Karmarkar v Kajol Enterprises Ltd at [10].
11 At [16(c)].
12 Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 (HC); Ports of Auckland Ltd v Auckland City Council [1991] 1 NZLR 601 (HC); Hunter v Canary Wharf Ltd [1997] AC 655 (HL); Varnier v Vector Energy Ltd [2004] NZRMA 193 (HC); Wilson v Selwyn District Council [2005] NZRMA 76 (HC); Bank of New Zealand v Greenwood [1984] 1 NZLR 525 (HC); Antrim Truck Centre Ltd v Ontario (Transports) [2013] SCR 594; Shogun Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42; Wu v Body Corporate 366611 [2011] 2 NZLR 837 (HC); Body Corporate 366611 v Wu [2013] 3 NZLR 522 (CA); Wu v Body Corporate 366611 [2015] 1 NZLR 215 (SC); Beema Property Investments Ltd v Body Corporate 366611 [2018] 2 NZLR 514 (CA); Nottingham Forest Trustee Ltd v Union Networks Ltd [2021] 3 NZLR 823 (CA).
enjoyed a quicker and less expensive process through which to obtain a resource consent to develop his own land, which he has not yet obtained.
[21] Mr Karmarkar says it is not merely the fault of the Council that Kajol’s resource consent conditions were defective in this way. He says it was at least partly Kajol’s fault, because it did not properly consider his interests as a neighbour when it applied for its resource consent. In support of this submission, Mr Karmarkar refers the Court to Schedule 4 of the Resource Management Act 1991, which sets out the information required to be included in an application for resource consent. In particular, clause 7(1) of the fourth schedule provides:
7Matters that must be addressed by assessment of environmental affects
(1)An assessment of the activity’s effects on the environment must address the following matters:
(a)any effect on those in the neighbourhood and, where relevant, the wider community, including any social, economic, or cultural effects.
[22] In the course of my discussion with Mr Karmarkar he accepted that he continues to be able to use his property, including the ROW, in precisely the same way he used it before Kajol applied for, and obtained, its resource consent. In that regard, I also note that Kajol has not actually subdivided its land, and its resource consent to do so has lapsed. Similarly, although Kajol has obtained a legal easement over that part of Vector’s land on which the passing bay was to be located, the passing bay has not actually been built. Nevertheless, Mr Karmarkar complains that if Kajol (and the Council) had properly assessed the effect on him of Kajol’s proposed subdivision then the Council would have required Kajol to ensure that the ROW had capacity for sufficient vehicular access to accommodate his subdivision too. Mr Karmarkar says that in failing to assess the impact of Kajol’s subdivision on him in this way, Kajol has committed the tort of nuisance by wrongfully interfered with his rights to maximise his use and enjoyment of his land by developing it.
[23] Similarly, albeit somewhat in the alternative, Mr Karmarkar submits that Kajol has committed a nuisance by not ensuring that he also has the benefit of the easement over that part of Vector’s land upon which the passing bay was to be built. Without
that easement, Mr Karmarkar submits that neither he nor anybody else using the ROW to get to or from his property could lawfully use the passing bay. Anyone who did use it would be committing trespass. Mr Karmarkar tells me Vector would now require a payment from him if he is to have the benefit of his own easement over the passing bay.
[24] To support his submissions, Mr Karmarkar relies on Lord Neuberger’s comment in Lawrence v Fen Tigers Ltd 13 “… it seems wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance…”.14
[25] Finally, I discussed with Mr Karmarkar whether his real grievance was against the Council, rather than Kajol. As noted, Mr Karmarkar had originally issued proceedings against the Council, but Judge Clark struck these out, noting that (amongst other things) the Council did not owe him a duty of care when it issued his neighbour’s resource consent.15 I understand Mr Karmarkar subsequently appealed that decision but discontinued the appeal. Mr Karmarkar says that he discontinued the appeal after the Council withdrew Kajol’s resource consent because they knew his appeal would succeed. On the other hand, counsel for Kajol understands that the resource consent was not withdrawn but was due to lapse. In the context of Mr Karmarkar’s allegations of nuisance against Kajol I do not think anything turns on this, but I mention it for completeness, given the emphasis it received from Mr Karmarkar.
Discussion
[26] Judge Davenport correctly noted that the tort of nuisance is described in Todd on Torts as:16 “… an unreasonable interference with a person’s right to the use or enjoyment of an interest in land … [the remedy of damages] requires proof of actual imminent harm [from the nuisance]”.
13 Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822 at [90].
14 Mr Karmarkar incorrectly provided Hunter v Canary Wharf Ltd as the citation for this comment.
15 Karmarkar v Auckland Council, above n 1, at [23].
16 Stephen Todd and others Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 534.
[27] I agree with Judge Davenport that the difficulty with Mr Karmarkar’s various arguments is that there is nothing Kajol has done that in any way prevents him from using his own land and his ROW. I do not accept Mr Karmarkar’s submission that he has a claim against Kajol in nuisance because Kajol’s resource consent interfered with his right to maximise the use of his land through subdivision. First, I do not consider that this is the sort of interference against which the tort of nuisance protects. As discussed with Mr Karmarkar, all of the authorities to which he referred involved a physical interference with the reasonable use or enjoyment of land, for example: smells, noise, dust, and reflected sun light.17 Although the tort of nuisance may develop in future, I do not consider that it effectively requires a neighbour to develop its land (or to apply for resource consent to develop the land) in a way that best suits other neighbours. I agree with Judge Davenport that it is still a fundamental requirement of the tort of nuisance that a defendant be interfering in some way with the reasonable use of the plaintiff’s land, whereas here Mr Karmarkar remains free to use his land and the ROW exactly as he pleases.
[28] Perhaps more fundamentally, the tort of nuisance does not require a party to apply for resource consents in a way that will best suit its neighbours. It is part of the purpose of the resource consent process is to manage the disruption to neighbours that may arise out subdivision and development. I do not accept Mr Karmarkar’s submission that the Resource Management Act in general or clause 7(1) of Schedule 4 in particular imposes a duty of care on neighbours and the council to ensure that the development and subdivision of land benefits its neighbours.
[29] I agree with Judge Davenport that the Statement of Claim discloses no reasonably arguable cause of action. Having considered Mr Karmarkar’s oral and written submissions, and the cases to which he refers me, I also agree with Judge Davenport that the defects in Mr Karmarkar’s Statement of Claim cannot be cured by repleading.
17 See above n 13.
Result
[30]The appeal is dismissed.
[31] Kajol is entitled to costs. I indicated to Mr Raju and to Mr Karmarkar that my preliminary view was that costs on a 2B basis would be appropriate if costs were to be ordered at all. Mr Raju agreed. Mr Karmarkar said he would leave this to the Court. On this basis, I direct that Mr Karmarkar is to pay Kajol’s costs of the appeal on a 2B basis.
Robinson J
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