Nienkemper v Ridling - [2024] NZHC 1714

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-3120

[2024] NZHC 1714

UNDER Section 124 District Court Act 2016 and Rule 20.4 High Court Rules 2016

BETWEEN

ANTHONY CLEMENTS KARLOFF NIENKEMPER

Appellant

AND

MARK RIDLING

Respondent

Hearing: 20 June 2024

Appearances:

K E Hogan for Appellant P J Muir for Respondent

Judgment:

26 June 2024

JUDGMENT OF O’GORMAN J

[Application by respondent to adduce fresh evidence on appeal]

This judgment was delivered by me on 26 June 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/counsel:
K E Hogan, Barrister, Auckland Zhang Law, Auckland
Steindle Williams Legal, Auckland

NIENKEMPER v RIDLING [2024] NZHC 1714 [26 June 2024]

[1] This proceeding is an appeal by Mr Nienkemper challenging a decision delivered by Judge M-E Sharp in the District Court on 23 November 2023.1 In that decision, Judge Sharp dismissed an application by Mr Nienkemper for a restraining order against the respondent, Mr Ridling, under the Harassment Act 1997.

[2]The applications before me for determination are:

(a)an application by the appellant, Mr Nienkemper, to adduce further evidence in support of his appeal; and

(b)an application by the respondent to adduce fresh evidence on appeal, as contained in the affidavit of Mr Ridling sworn on 30 April 2024.

[3] There are two affidavits in support of the appellant’s application , namely that by Mr Nienkemper dated 8 April 2024 and an affidavit from Mr Gibbons dated 9 April 2024.

(a)At the end of an “introduction and background” section, Mr Nienkemper’s affidavit says in para 1.14 that he seeks to rely on “the following evidence” in support of his appeal. What follows is a combination of factual statements and legal submissions, with reference to various videos. In the hearing, it was clarified that the “new evidence” that is the subject of the present application is the content of the affidavit itself, plus clarification as to the admissibility of one particular video (recorded on 26 June 2023) that was referred to but not played during the District Court hearing.

(b)Mr Gibbons is a specialist property and resource management lawyer, experienced in dealing with complex issues in subdivisions, unit titles, land development and infrastructure. His affidavit provides expert evidence about the disputed rights and obligations under easement 7644979.4. This evidence was not before Judge Sharp in the District Court proceeding and is relied on by the appellant to

1 Nienkemper v Ridling [2023] NZDC 26444.

substantiate alleged errors of law. The respondent does not oppose the evidence of Mr Gibbons being received for the purposes of the appeal.

Legal principles

[4] Both applications are made under r 20.16 of the High Court Rules, which provides as follows:

20.16 Further evidence

(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.

(2)In all other cases, a party…

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 [2024] NZHC 1714
Case: [2024] NZHC 1714
Decision Date: 26 June 2024

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Mr Nienkemper against a decision by Judge Sharp in the District Court. The District Court had dismissed Mr Nienkemper's application for a restraining order against Mr Ridling under the Harassment Act 1997. The appeal centred on the admissibility of new evidence. Mr Nienkemper sought to adduce further evidence, primarily through an affidavit and a video, to support his appeal. Conversely, Mr Ridling sought to adduce fresh evidence, including an affidavit, to counter Mr Nienkemper's claims.

The court examined whether the proposed evidence met the criteria for admission under r 20.16 of the High Court Rules, which requires special reasons for hearing new evidence. The court considered whether the evidence was fresh, credible, and cogent, and whether it was necessary to determine the appeal. The court also weighed the interests of justice, including finality and the efficient use of court resources.

The court found that some parts of Mr Nienkemper's affidavit could be admitted as they provided a necessary overview and summary of his position, which was not contentious and would not require cross-examination. However, other parts of his affidavit, particularly those alleging errors of law, were deemed redundant as they were addressed in the affidavit of Mr Gibbons, a specialist in property law. The court allowed Mr Nienkemper to reference the video but did not permit him to adduce the specific paragraphs about it, as they incorrectly implied Judge Sharp had seen the video.

Regarding Mr Ridling's application, the court declined to admit his affidavit as it introduced new issues not assessed by the District Court and was not relevant to the appeal's merits. The affidavit of Mr Gibbons, however, was admitted by consent, as it provided valuable expert evidence on the legal interpretation of easement rights.

The court concluded by specifying which parts of Mr Nienkemper's affidavit and the video could be used in the appeal and directed that the rest be redacted. Costs were to lie where they fell unless the parties could not agree, in which case the court would determine them on the papers.

Orders