Karmarkar v Kajol Enterprises Limited - [2024] NZHC 683

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…

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 683
Decision Date: 25 March 2024

CaseChat Overview and Summary

Madhav Hari Karmarkar appealed against the District Court's decision to strike out his claim against Kajol Enterprises Limited. The dispute centred around an easement over a shared driveway and alleged errors made by Kajol and the Auckland Council during the consenting process for Kajol's subdivision. Karmarkar sought damages for alleged private nuisance caused by Kajol's resource consent application and the Council's approval process. The key legal issues involved whether the Statement of Claim disclosed a reasonably arguable cause of action and if the defects could be cured by amendment. Robinson J agreed with Judge Davenport that the Statement of Claim did not disclose a cause of action in nuisance as it did not establish that Kajol had interfered with Karmarkar's reasonable use or enjoyment of his land. Karmarkar remained free to use his land and the shared driveway as before. The court also found that the defects in the Statement of Claim could not be cured by amendment. The appeal was dismissed, and Karmarkar was ordered to pay Kajol's costs on a 2B basis.

Orders