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Lenihan v Maehl

Lenihan v Maehl

Case [2018] NZHC 2989 19 November 2018

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Res Judicata

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000993

[2018] NZHC 2989

BETWEEN
JOHN LENIHAN

Appellant

AND

ANDREW MAEHL and WINNIFRED CHARLESWORTH

Respondents

CIV-2018-404-001173

BETWEEN

JOHN LENIHAN
Applicant

AND

DISTRICT COURT AT AUCKLAND

First Respondent

ANDREW MAEHL and WINNIFRED CHARLESWORTH

Second Respondents

Hearing: 13 November 2018

Appearances:

S Stienstra for Appellant/Applicant

Z Matheson for Respondents in proceeding CIV-2018-404- 000993 and for Second Respondents in proceeding CIV-2018- 404-001173

No appearance for First Respondent in proceeding CIV-2018-404- 001173

Judgment:

19 November 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 19 November 2018 at 11.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

LENIHAN v MAEHL [2018] NZHC 2989 [19 November 2018]

Introduction

[1] Mr Lenihan has filed an appeal against a costs decision made by Judge Dawson in the District Court at Auckland on 23 April 2018.1 That decision awarded costs, calculated on a 2B basis, in the sum of $13,330 to the respondents, Mr Maehl and Ms Charlesworth.

[2] There are issues as to whether or not the notice of appeal was filed and served within the required time, and whether any failure to serve can be waived. As a result, Mr Lenihan brought an application for leave to appeal. He also brought judicial review proceedings asserting that the costs decision made by Judge Dawson was unlawful, and seeking an order quashing the decision.

Factual background

[3] Mr Lenihan owns two adjoining properties in Paturoa Road, Titirangi. Mr Maehl and Ms Charlesworth own a neighbouring property.

[4] Mr Lenihan’s properties are undeveloped and, in 2014, he obtained resource consent from Auckland Council, permitting him to build on his properties. The resource consent also permitted Mr Lenihan to fell a Kauri tree on one of the properties.

[5] A number of persons, including Mr Maehl and Ms Charlesworth, opposed the felling of the Kauri tree. One protestor trespassed on Mr Lenihan’s property and resided in the Kauri tree for a number of days. As a result, the matter attracted some media attention.

[6] In December 2015, Mr Maehl and Ms Charlesworth filed an application seeking to review the grant of the resource consent. That application was part heard in November 2016. The hearing was due to resume in May 2017 but, shortly beforehand, Mr Lenihan surrendered the resource consent. As a result, the judicial review was discontinued.

1 Lenihan v Maehl [2018] NZDC 7751.

[7] This, however, was not the end of the disputes between the parties. There have been a number of other matters in issue between them:

(a)Mr Maehl and Ms Charlesworth obtained an injunction and an interim enforcement order, preventing any construction works on Mr Lenihan’s properties.

(b)In May 2017, Mr Maehl and Ms Charlesworth brought enforcement proceedings in the Environment Court against Mr Lenihan. Counsel advise that these proceedings are ongoing.

(c)Mr Lenihan has issued trespass orders against Mr Maehl and Ms Charlesworth.

(d)Mr Lenihan commenced proceedings in the…

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.

Continue reading Lenihan v Maehl

Details

AGLC: Lenihan v Maehl [2018] NZHC 2989
Case: [2018] NZHC 2989
Decision Date: 19 November 2018

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal and application for judicial review brought by Mr Lenihan against a costs decision made by Judge Dawson in the District Court at Auckland. The respondents to the proceedings were Mr Maehl and Ms Charlesworth. The appeal and application for review challenged a decision of Judge Dawson dated 23 April 2018, in which he awarded costs to the respondents on a 2B basis in the sum of $13,330. The appeal was filed and served two days late, and a further two weeks late in the District Court. Mr Lenihan filed an application for leave to appeal, seeking an extension of the time to file the notice of appeal. The court held that the appeal was outside the time limit specified by the High Court Rules and the Harassment Act 1997. However, the court granted leave to extend the time to file the notice of appeal, given the absence of prejudice to the respondents and the short delays in filing. The court further held that it was open to Judge Dawson to make a costs order notwithstanding that costs had not been reserved in the substantive decision of 30 November 2017. However, the court held that Judge Dawson was functus officio when he issued a minute on 23 February 2018, which concluded that the court had no jurisdiction to make a costs order. The court held that Judge Dawson had no jurisdiction to make a conflicting costs decision on 23 April 2018, and he had erred in law in doing so. Accordingly, the court allowed the appeal and set aside the costs decision of 23 April 2018. The court declined to remit the matter back to the District Court, and held that it was open to the respondents to seek leave to extend the time to file a notice of appeal against the decision communicated by the minute of 23 February 2018, or to seek judicial review of the same. The court directed that if the issue of costs could not be agreed, then any application for costs and/or disbursements was to be filed within 10 working days of the date of this judgment, and any reply was to be filed within a further 10 working days.

Orders