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Maehl v Lenihan

Maehl v Lenihan

Case [2019] NZHC 1457 26 June 2019

Appeal

Jurisdiction

Costs

Finality of Judgments

Functus Officio

Discretionary Costs

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2881

[2019] NZHC 1457

UNDER Part 32 of the High Court rules

BETWEEN

ANDREW ALEXANDER MAEHL and WINNIFRED CHARLESWORTH

Applicants / Appellants

AND

JOHN ROBERT LENIHAN

Respondent

Hearing: 16 May 2019

Appearances:

Z A Matheson for the Applicants / Appellants S Stienstra for the Respondent

Judgment:

26 June 2019

JUDGMENT OF WALKER J

This judgment was delivered by me on 26 June 2019 at 12 midday pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Christopher Taylor, Auckland Counsel:
Ms Z Matheson, Barrister, Auckland Ms S Stienstra, Barrister, Auckland

MAEHL v LENIHAN [2019] NZHC 1457 [26 June 2019]

Introduction

[1] Mr Maehl and Ms Charlesworth seek special leave to appeal out of time against a costs decision of the District Court at Auckland on 23 February 2018 (“February costs decision”). In the February costs decision, Judge Dawson declined to address costs on the basis that they had not been sought or reserved at the substantive hearing under the Harassment Act 1997, or in the judgment, so there was no longer jurisdiction to make an order for costs.

[2] Although the leave application is opposed by Mr Lenihan, the parties agreed to argue the substantive appeal in conjunction with the threshold issue of leave. In short, the parties ask me to address the substantive appeal issues if I grant special leave. This is a pragmatic approach in the circumstances of this case and the protracted litigation history between the parties.

[3]In summary, the issues are:

(a)Whether leave to appeal out of time should be granted;

(b)If yes, whether the District Court had jurisdiction to award costs after delivery of the substantive judgment;

(c)If yes, whether the costs question should be remitted back to the District Court or whether I should substitute an order for costs in respect of the substantive hearing under the Harassment Act 1997.

Factual background

[4] The background is comprehensively set out in a related judgment of Wylie J dated 19 November 2018.1 I respectfully adopt that narrative.

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

1 Lenihan v Maehl [2018] NZHC 2989.

[6] 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.

[7] Several persons, including Mr Maehl and Ms Charlesworth, opposed the felling of the kauri tree. One protester trespassed on Mr Lenihan’s property and resided in the kauri tree for several days. As a result, the matter attracted some media attention.

[8] In December 2015, Mr Maehl and Ms Charlesworth filed an application 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,…

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 Maehl v Lenihan

Details

AGLC: Maehl v Lenihan [2019] NZHC 1457
Case: [2019] NZHC 1457
Decision Date: 26 June 2019

CaseChat Overview and Summary

This case involved a dispute between Mr Maehl, Ms Charlesworth and Mr Lenihan, neighbours in Titirangi, Auckland. Mr Lenihan sought civil restraining orders against Mr Maehl, Ms Charlesworth and a third party under the Harassment Act 1997. The proceedings were heard in the District Court and, on 30 November 2017, Judge Dawson dismissed Mr Lenihan's application in its entirety. Mr Maehl and Ms Charlesworth sought costs on a 2B basis, but Judge Dawson initially declined to award costs, citing authority that a costs order could not be made at that stage. However, on 23 April 2018, Judge Dawson reversed his decision and awarded costs in Mr Maehl's and Ms Charlesworth's favour, on a 2B basis, in the sum of $13,330. Mr Lenihan appealed against the costs decision, and on 19 November 2018, Wylie J set aside the cost judgment dated 23 April 2018, awarding costs to Mr Lenihan as the successful party.

Mr Maehl and Ms Charlesworth sought special leave to appeal out of time against the February costs decision and, in this case, before the High Court, they sought to appeal the February costs decision and an accompanying application for special leave to appeal out of time under r 20.4 of the High Court Rules 2016. The appeal and application were served on Mr Lenihan on 21 December 2018. The grounds of appeal relied on were that the Judge Dawson did have jurisdiction to make a costs order because costs are supplemental and the principle of finality of judgments is not infringed where the substantive decision of November 2017 was silent on costs and not sealed.

Walker J considered the threshold issue of whether leave to bring the appeal out of time should be granted. The parties were largely agreed as to the relevant considerations, including the length of delay and reasons for it; the parties' conduct; the extent of prejudice caused by the delay; the prospective merits of the appeal; and whether the appeal raises any issue of public importance. Weighing these considerations, Walker J considered it appropriate in the special circumstances of this case to grant special leave to appeal out of time.

The court then considered whether the District Court had jurisdiction to award costs after delivery of the substantive judgment. The court found that the District Court was not functus officio on 23 February 2018 when the Judge declined to make an award of costs, as his jurisdiction had not been spent, as his costs discretion had not yet been exercised. The court concluded that the February costs decision was a decision within the inclusive definition of that term under s 123 of the District Court Act 2016, and there was no jurisdiction to issue the conflicting costs decision in April 2018 and the District Court erred in doing so.

Finally, the court considered the appropriate course having allowed the appeal. The court concluded that remitting the issue of costs back to the District Court would not be beneficial in the special circumstances of this case, including its protracted history. Instead, the court considered it appropriate to make an order for costs in respect of the substantive proceeding in the District Court, awarding 2B costs of $13,330 to Mr Maehl and Ms Charlesworth. The court also directed that any application for costs and/or disbursements be filed within 10 working days of the date of this judgment, with any reply to be filed within a further 10 working days. The court will then deal with the issue of costs and disbursements on the papers unless the assistance of counsel is required.

Orders