Rutherford v Lyons - [2016] NZHC 2804

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1259 [2016] NZHC 2804

BETWEEN
VICTOR ERNEST RUTHERFORD

Appellant

AND

PETER JOHN LYONS & SUSAN MARIE LYONS

Respondents

Hearing: 7 September 2016

Appearances:

P J Dale for Appellant
K A Muir for Respondents

Judgment:

23 November 2016

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 23 November 2016 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Chambers Craig Jarvis, Auckland
Morgan Coakle, Auckland

Counsel:
P J Dale, Barrister, Auckland

RUTHERFORD v LYONS [2016] NZHC 2804 [23 November 2016]

[1] This is an appeal against a refusal to make an award of costs.

Background

[2] The appellant, Mr Rutherford, and the respondents, the Lyons, are neighbours. They disagree about the use of a shared driveway. In a 2012 decision, this Court ruled that the occupants of the property at which Mr Rutherford resides have no legal rights to park vehicles on the right-of-way as to do so would interfere substantially with the Lyons’ rights.1

[3] The parties seemingly avoided each other until about 3 January 2015, when, as Judge Harrison described:2

[12] Mr Rutherford was unloading groceries from his vehicle at the end of the right of way. Mrs Lyons wanted to drive her vehicle down the right of way but was impeded from doing so by Mr Rutherford’s vehicle. She was delayed by some minutes while Mr Rutherford removed the final articles from his vehicle so that he could drive it out of the right of way. Before he could do so Mr Lyons appeared at the scene and proceeded to take a photograph of Mr Rutherford. Matters then deteriorated into expletive-laden invective directed by Mr Rutherford to Mr and Mrs Lyons. In his affidavit of 27 May 2015 Mr Rutherford accepted some but not all of the statements Mr Lyons alleged he made. A great deal of time was spent in cross-examination on this issue, but it is impossible for me to determine precisely what was said. I am of the view, however, that the statements acknowledged by Mr Rutherford to have been made by him could prima facie amount to harassment.

[13] That same day Mr Rutherford obtained paint and spray painted the words “Parking for” on the wooden paling fence at the edge of the right of way.

[14] On Sunday 4 January Ms Torbai-Golsefidi returned to the right of way with two carloads of clothes and belongings which were intended for charity, but which first had to be unloaded. This prevented Mrs Lyons from accessing her house by her vehicle and she parked on the street. As she walked past Mr Rutherford with her shopping he said “Welcome to my world” which I understood to be a reference by him to the necessity for him to walk from his car to his house with

1 Lyons v Breslin [2012] NZHC 366. The defendant in that case was Mr Breslin, who is the owner of the…

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 Rutherford v Lyons

Details

AGLC: Rutherford v Lyons [2016] NZHC 2804
Case: [2016] NZHC 2804
Decision Date: 23 November 2016

CaseChat Overview and Summary

In this case, Victor Ernest Rutherford appealed against a decision made by Judge Harrison in the District Court that refused an award of costs to him. The background of the case involves a dispute between the appellant and the respondents, the Lyons, about the use of a shared driveway. The appellant, Mr Rutherford, and the Lyons had previously been involved in litigation over the use of the driveway, and the dispute escalated into harassment allegations. The appellant offered to give undertakings to the Court as settlement offers, but these were rejected by the Lyons. The Judge concluded that the Lyons had largely succeeded in their application, particularly by way of the undertaking given by Mr Rutherford, and declined to make an award of costs, directing that costs should lie where they fall. Mr Rutherford argued that the Judge was wrong to hold that costs should lie where they fall and that he was the successful party in these proceedings. The appeal was dismissed by the High Court, which agreed with the Judge's decision that the Lyons had largely succeeded in their application, and that it would send an unfortunate message if Mr Rutherford could come away with a costs order in his favour by expressing contrition and agreeing not to repeat his behaviour at the doorstep of the Court. The Lyons were entitled to costs on this appeal on a 2B basis, as set by the Registrar.

Orders