Lewis v Hamilton Cosmopolitan Club Inc

[2023] NZHC 154

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-64

[2023] NZHC 154

BETWEEN

LISA ROCHELLE LEWIS

Applicant

AND

HAMILTON COSMOPOLITAN CLUB INC

Respondent

Judgment:

(On the papers)

9 February 2023

JUDGMENT OF BREWER J

[Application for leave to appeal]

This judgment was delivered by me on 9 February 2023 at 2 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

McKenna King Dempster (Hamilton) for Applicant Webb Gould Law (Hamilton) for Respondent

LEWIS v HAMILTON COSMOPOLITAN CLUB INC [2023] NZHC 154 [9 February 2023]

[1]The applicant applies for leave to appeal my judgment1 to the Court of Appeal.

[2]The respondent opposes.

[3]                 Leave to appeal should only be granted if the proposed appeal raises some point of sufficient importance to outweigh the cost and delay of a further appeal.

[4]                 If I refuse leave to appeal, the applicant can apply directly to the Court of Appeal for leave.

[5]                 A leave application does not require a Judge to revisit the findings in the judgment concerned.

[6]                 My judgment overturned a District Court decision which found that the respondent was liable to the applicant for committing the tort of nuisance.2

[7]                 The District Court found that the respondent caused a nuisance to the applicant by seeking to prevent vehicle access to her property.

[8]I held (principally):

(a)The District Court Judge decided the case outside the pleadings. The Judge erred in doing so.

(b)The Judge erred in finding that there was a nuisance. The applicant did not have an actionable right to cross the respondent’s land. All she had was a bare permission given orally and revocable at will.

[9]My findings are based on well-established law.

[10]              The application lists numerous proposed grounds of appeal. They mostly take issue with my reasoning. I do not see matters of sufficient importance which should be argued despite the cost and delay of a further appeal.

1      Hamilton Cosmopolitan Club Inc v Lewis [2022] NZHC 2555.

2      Lewis v Hamilton Cosmopolitan Club Inc [2022] NZDC 1569.

[11]              The application for leave to appeal is declined. I add that I have sympathy for the applicant’s position. The case has cost her dearly in both financial and emotional terms. The case has also attracted quite a degree of media attention. But I am obliged to give effect to my view of the merits of her proposed appeal.

[12]              The respondent is entitled to costs. But I note a comment in para 12 of the Notice of Opposition that the applicant now has legal aid. If that is incorrect, then costs are awarded on a 2B basis.

Brewer J