Mikitasov v Little - [2013] NZHC 1340

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2011-488-564 [2013] NZHC 1340

IN THE MATTER OF An appeal against the decision of the
District Court at Kaikohe

BETWEEN IGOR MIKITASOV Appellant

ANDALFRED NEWTON LITTLE First respondent

ANDJAMES LOUIS VEZEY, MAHMOOD KHAN and KAYE THERESA VEZEY Second respondents

Hearing: 29 April 2013

Appearances: A A H Low for appellant
R C Mark for respondents

Judgment: 10 June 2013

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11 am on Monday 10 June 2013.

Solicitors:
Short & Partners, Auckland
Henderson Reeves Connell Rishworth Whangarei

MIKITASOV v LITTLE [2013] NZHC 1340 [10 June 2013]

Introduction

[1] Mr Mikitasov is the owner of a property at Paihia in the Bay of Islands. The land was the subject of a right-of-way affording access to an adjacent beach. Over time, the accessway had become obstructed and effectively unusable by reason of unlawful encroachments installed by former owners and developers and by a Council decision not to repair a set of steps on public land.

[2] Mr Mikitasov applied to the District Court for an order extinguishing the easement. There was no opposition from holders of the dominant tenements but the first and second respondents sought compensation. The question of compensation was the subject of a detailed and comprehensive District Court judgment delivered
by Judge McElrea.1

[3] While making the order for extinguishment, the learned Judge awarded each of the two respondents compensation of $12,000. Mr Mikitasov appealed to this Court against the making of the compensation orders. On 22 May 2012, Duffy J delivered a reserved judgment in which the appeal was dismissed.2 Mr Mikitasov now seeks leave to appeal to the Court of Appeal from the earlier judgment of this Court.

Relevant legal principles

[4] An appeal may lie from a judgment of this Court, if the Court grants special leave to appeal under s 67 of the Judicature Act 1908. On such application, the applicant must demonstrate that the case raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.3

[5] It is important to note that on a second appeal the Court of Appeal is not simply engaged in the general correction of error. Its primary function is to clarify
the law and to determine whether it has been properly construed and applied by the

1 Mikitasov v International Recruitment Partners Ltd DC Kaikohe CIV-2010-027-31, 22 July 2011, recalled and reissued on 15 August 2011.
2 Mikitasov v Little [2012] NZHC 1100.
3 Waller v Hider [1998] 1 NZLR 412 (CA).

Court below. It follows that not every alleged error of law will be of sufficient importance, either generally or to the parties, as to justify the further pursuit of litigation which has already been twice considered and ruled upon…

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: [2013] NZHC 1340
Decision Date: 10 June 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Igor Mikitasov sought to extinguish a right-of-way easement over his property at Paihia in the Bay of Islands, which had become obstructed and unusable due to unlawful encroachments and a decision by the council not to repair steps on public land. The District Court granted the order to extinguish the easement and awarded compensation to the holders of the dominant tenements, Alfred Newton Little and James Louis Vezey, Mahmood Khan and Kaye Theresa Vezey. Mr. Mikitasov appealed the compensation awards to the High Court, which were dismissed by Duffy J. Mr. Mikitasov now seeks leave to appeal to the Court of Appeal from the earlier judgment of the High Court.

The central legal issue in this case is whether the Court of Appeal should grant special leave to appeal the High Court's decision to dismiss the appeal against the compensation awards made by the District Court. The Court of Appeal will only grant special leave if the case raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. The Court of Appeal's primary function on a second appeal is to clarify the law and determine whether it has been properly construed and applied by the Court below.

The High Court held that the District Court had the discretion to extinguish the easement and award compensation, and that the District Court had exercised that discretion correctly. Duffy J held that the analogy drawn in the District Court between the approach in Jacobsen Holdings (a landlocked land case) and cases of easement extinguishment, was "well made." The High Court also held that Judge McElrea's reasoning could not be faulted, and that the appellant had failed to make out any basis for interference with the exercise of the District Court's discretion. The Court of Appeal held that there was no basis upon which it would be proper to grant special leave to appeal in this case, and accordingly dismissed the application. The respondents are entitled to one set of costs, calculated on a Band 2B basis, together with reasonable disbursements to be fixed by the Registrar if necessary.

Orders