Nienkemper v Ridling - [2025] NZHC 322

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-003120

[2025] NZHC 322

UNDER section 124 District Courts Act 1947 and rule 20.4 High Court Rules 2016

BETWEEN

ANTHONY CLEMENTS KARLOFF NIENKEMPER

Appellant

AND

MARK RIDLING

Respondent

Hearing: 6 November 2024

Counsel:

K E Hogan for Appellant

D P Hoskin and P J Muir for Respondent

Judgment:

27 February 2025

JUDGMENT OF BREWER J

This judgment was delivered by me on 27 February 2025 at 2 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Zhang Law (Auckland) for Appellant
Steindle Williams Legal (Auckland) for Respondent

NIENKEMPER v RIDLING [2025] NZHC 322 [27 February 2025]

Introduction

[1] Mr Nienkemper and Mr Ridling share (with others) a right-of-way. The two men have clashed repeatedly over Mr Ridling’s use of the right-of-way and Mr Nienkemper’s responses to what he contends are breaches by Mr Ridling of the terms of the right-of-way easement.

[2] Mr Nienkemper applied to the District Court for a restraining order against Mr Ridling pursuant to the Harassment Act 1997 (the Act). His application was roundly dismissed by Judge M-E Sharp on 23 November 2023:1
[64] The antagonist and the harasser here (to use that term in a colloquial sense) is in fact Mr Nienkemper and not Mr Ridling. It is time that Mr Nienkemper accepted that he has misinterpreted and misapplied the legal position in respect to the easements and who has the right to use this driveway and service entrance. It is time that he stopped causing problems for his neighbours, for the management committee and particularly for Mr Ridling. It is more than time that he stops intentionally creating a nuisance and involving the police (and from time to time ambulances) in respect to incidents that he has provoked and created.

[65] I find Mr Ridling to have been reasonable and accommodating as indeed the Body Corporate management committee has. I also accept that Mr Ridling only wants a quiet life without interference with his easement rights. As long as Mr Nienkemper continues to engage in deliberate, consistent and unreasonable provocation of Mr Ridling, as he has, then the disputes will continue, but frankly I endorse the police’s lack of action in respect to the repeated complaints made by Mr Nienkemper, because he is the problem here and not Mr Ridling.

[3] Mr Nienkemper now appeals the Judge’s decision.2

Legal context

[4] Before I delve into the Judge’s findings, I will set out the legal context, because the actions of the parties must be assessed in that context.

1 Nienkemper v Ridling [2023] NZDC 26444 [District Court decision].
2 There is a general right of appeal pursuant to s 34 of the Harassment Act 1997.

[5] First, there are the rights and obligations of the parties created by the right-of-way easement.3 The terms of the easement4 give the parties the right, at all times, to go over and along the easement facility. There is:5

……

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 Nienkemper v Ridling

Details

AGLC: Nienkemper v Ridling [2025] NZHC 322
Case: [2025] NZHC 322
Decision Date: 27 February 2025

CaseChat Overview and Summary

Anthony Clements Karloff Nienkemper appealed the decision of Judge Sharp in the District Court, who dismissed his application for a restraining order against Mark Ridling. The appeal was dismissed by Brewer J. The appeal related to the District Court’s dismissal of Mr Nienkemper’s application under the Harassment Act 1997 (the Act) for a restraining order against Mr Ridling. Mr Nienkemper’s application was dismissed on the basis that Mr Ridling had not harassed Mr Nienkemper, and in any event, a restraining order was not justified. The appeal was based on four grounds. The first was that the Judge failed to give sufficient weight to relevant considerations. The second was that the Judge erred in law by stopping Mr Nienkemper from giving relevant evidence and by admitting the evidence of Ms Gallichan without her being made available for cross-examination. The third was that the Judge erred in principle by not appointing an amicus to assist the Court or standby counsel to assist Mr Nienkemper. The appeal was dismissed. The Judge was correct to find that Mr Ridling did not harass Mr Nienkemper. The incidents complained of by Mr Nienkemper did not constitute a pattern of behaviour directed against him that included doing to him a specified act on at least two separate occasions. There was no “pattern of behaviour”. There were responses to provocations by Mr Nienkemper. The Judge was also correct to find that, in all the circumstances, the degree of distress caused by the alleged harassment did not justify the making of an order. The Judge was also correct to find the making of a restraining order was not necessary to protect Mr Nienkemper from further harassment (assuming that there had been harassment). The events complained of by Mr Nienkemper took place over the period 18 October 2022 to April 2023. For much of this time, Mr Nienkemper was a member of the Body Corporate’s management committee. Thereafter, things calmed down. Mr Ridling said in evidence that he was retired, and had been for two years. He said he calls in to his business premises “once a week at most and that’s usually for two hours, on a bad day it’s four hours, so [he doesn’t] spend very much time there at all”. Mr Ridling went on to say that there had been no issues between him and Mr Nienkemper in the months since the April 2023 incident. There was no submission made to the Court, and no suggestion in the evidence filed in the appeal, that there have been further incidents of confrontation. There is another factor which illustrates why a restraining order would be inappropriate. What would be its terms? The disputes giving rise to the incidents complained of were disputes over the use of the right-of-way. Any restraining order would have to contain special conditions setting out what is lawful use and requiring Mr Ridling not to go beyond such use. To an extent, the Judge heard evidence about the parties’ views on what was and was not lawful use. But, there was insufficient evidence from which to prescribe lawful use in conditions which would be meaningful. And, general conditions which could prevent lawful use would not be appropriate. Ms Hogan, understandably, could not suggest conditions which would be apposite. In short, an application for a restraining order, in the circumstances of this case, was an inappropriate way to resolve disputes over the lawful use of a right-of-way easement.

Orders