Nienkemper v Ridling

[2025] NZHC 1316

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-003120

[2025] NZHC 1316

BETWEEN

ANTHONY CLEMENTS KARLOFF NIENKEMPER
Appellant

AND

MARK RIDLING

Defendant

Judgment:

(On the papers)

26 May 2025

JUDGMENT OF BREWER J

(Costs)

This judgment was delivered by me on 26 May 2025 at 10 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Zhang Law (Auckland) for Appellant

Steindle Williams (Auckland) for Respondent

NIENKEMPER v RIDLING [2025] NZHC 1316 [26 May 2025]

Introduction

[1]This is a costs judgment.

[2]        On 27 February 2025, I dismissed the appeal of Mr Anthony Nienkemper, against the District Court decision of Judge M-E Sharp,1 declining his application for a restraining order against the respondent, Mr Mark Ridling, pursuant to the Harassment Act 1997.2

[3]        Mr Nienkemper and Mr Ridling have clashed repeatedly over Mr Ridling’s use of a right-of-way and Mr Nienkemper’s responses to that usage. Mr Nienkemper considered Mr Ridling’s use to be in breach of the terms of the right-of-way easement and took various unlawful steps to prevent him from using the easement. Mr Ridling’s responses to these actions were said to amount to harassment. The District Court Judge declined the application for a restraining order on the basis that Mr Ridling’s behaviour did not amount to harassment. Mr Nienkemper advanced multiple grounds of appeal; none of which I found to have merit. I considered the Judge’s findings were appropriate.

[4]In my judgment, I concluded:3

[62] I tend to the view that 2B costs in favour of Mr Ridling  are  appropriate. But, I will take memoranda from counsel if they wish to advocate for a different regime. Any memorandum on behalf of Mr Ridling is to be filed no later than 31 March 2025. Mr Nienkemper’s memorandum (if any) is to be filed no later than 28 April 2025.

Submissions

[5]        On 31 March 2025, the respondent filed a memorandum and a draft order seeking costs on a 2B basis, amounting to $9,560.

[6]        On 28 April 2025, the appellant filed a memorandum seeking an order that costs lie where they fall. He says that he was partially successful on the appeal as, while I found the application for a restraining order was inappropriate, I also found

1      Nienkemper v Ridling [2023] NZDC 26444.

2      Nienkemper v Ridling [2025] NZHC 322.

3 At [62].

that the dispute between the parties and a period of “acrimonious events” were proved. He says, as Mr Ridling contributed to the acrimony between the parties, precedent suggests that a reduction or refusal of costs in  his favour may be appropriate.4      Mr Nienkemper also submits that, as I found there were some minor flaws in the District Court judgment, the appellant partially succeeded in the appeal and, as such, costs should be reduced or refused.5 Finally, he takes issue with having been ordered to pay costs for the District Court proceedings, but not receiving the benefit of costs after successfully applying for leave to file fresh evidence on appeal.6

Decision

[7]        Costs are at the discretion of the Court.7 A fundamental principle of the law of costs is that they follow the event — the unsuccessful party pays costs to the successful party.8 I acknowledge that there  is  a  broad  discretion  under  r 14.7(g)  of  the  High Court Rules 2016 that allows me to reduce the costs award to Mr Ridling if I identify some good reason to depart from ordinary costs principles.9

[8]        While I note Mr Nienkemper’s point that Mr Ridling’s behaviour “contributed to the difficulty giving rise to the litigation”, I do not consider this is a good enough reason to depart from the fundamental principle that costs should follow the event. It is the case in most, if not all, litigation that the defendant will have done something the plaintiff considers egregious enough to warrant the bringing of proceedings. If the plaintiff decides to bring proceedings, they consequently submit to the decision-making powers of the Court and are subject to the Court’s view of the parties’ conduct. In this case, while I do not condone Mr Ridling’s behaviour, I did not consider that the grounds of Mr Nienkemper’s appeal had merit. On the grounds

4      Mr Nienkemper provided the following authorities in support of this submission: A’s Company Ltd v Dagger HC Auckland M1482-SD00, 14 August 2003; Goodwin v Rocket Surgery Ltd [2013] NZCA 172 at [30]; Sawyer v Homewood [2015] NZHC 2781 at [14]; and Vulcan Steel Ltd v McDermott [2013] NZHC 3232 at [31].

5      Packing In Ltd formerly known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 (CA).

6      Nienkemper v Ridling [2024] NZHC 2190. I note that O’Gorman J found that costs should lie where they fall.

7      High Court Rules 2016, r 14.1.

8      Rule 14.2(1)(a); and Manukau Golf Club v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

9      Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at 10.

advanced on appeal, Mr Ridling was the successful party, and a costs award should reflect that.

[9]Accordingly, I award costs on a 2B basis against the appellant, Mr Nienkemper.

Orders

[10]Mr Nienkemper is to pay Mr Ridling costs in the sum of $9,560.

Brewer J