Simunac v Lu - [2023] NZHC 335

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1867

[2023] NZHC 335

BETWEEN MARKO SIMUNAC and MAJA VISNIC SIMUNAC
Plaintiffs

AND

JIEYU LU

First Defendant

HERENGA A NUKU AOTEAROA, THE OUTDOOR ACCESS COMMISSION

Second Defendant

AUCKLAND COUNCIL, TE
KAUNIHERA O TAMAKI MAKAURAU

Third Defendant

Hearing: On the papers

Appearances:

A C Eager for Plaintiffs

M D Pascariu for First Defendant
No appearance for Second and Third Defendants

Minute:

28 February 2023

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 28 February 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Hesketh Henry, Auckland Hamilton Locke, Hamilton

SIMUNAC v LU [2023] NZHC 335 [28 February 2023]

[1] In this proceeding Mr and Mrs Simunac challenge a proposal by the defendants to establish a walking, cycling and equestrian trail that will travel in part along a right of way granted in their favour by an easement. Mr and Mr Simunac contend the proposal will derogate from their enjoyment of the rights afforded them by the easement. They therefore filed a statement of claim containing three causes of action. These were based on allegations that the proposal will create both a public and private nuisance and that it will derogate from the grant of the easement.

[2] The first defendant, Ms Lu, applied for a stay of the proceeding on the basis that the easement contained an implied term requiring any dispute to be referred to arbitration.1 I was scheduled to hear the application for stay as Duty Judge on 15 February 2023.

[3] On 13 February 2023 Mr and Mrs Simunac filed an amended statement of claim that omitted the claim based on derogation of the grant of the easement. This prompted Mr Piscariu, counsel for Ms Yu, to withdraw the application for a stay of the proceeding at the commencement of the hearing. I now formally dismiss the application. The only remaining issue is that of costs.

[4] All issues as to costs are at the discretion of the Court.2 In exercising its discretion, however, the Court is required to take into account the principles set out in r 14.2 of the High Court Rules 2016. To the forefront of these is the principle that the party who fails with respect to an interlocutory proceeding should pay costs to the party who succeeds.3

The arguments

[5] Mr and Mrs Simunac claim they were the successful parties because Ms Lu ultimately withdrew the application. They therefore seek an order for costs in their favour.

1      Land Transfer Regulations 2002, Article 14 in Sch 4.
2      High Court Rules 2016, r 14.1.
3      Rule 14.2(1)(a)

[6] Mr Piscariu contends Ms Lu was the successful party because her application forced Mr and Mrs Simunac to amend their claim. She therefore seeks an award of costs in her favour.

[7] Mr Pascariu also relies on 7.77 of the High Court Rules 2016,…

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 Simunac v Lu

Details

AGLC: Simunac v Lu [2023] NZHC 335
Case: [2023] NZHC 335
Decision Date: 28 February 2023

CaseChat Overview and Summary

The plaintiffs, Mr and Mrs Simunac, sought to challenge a proposal by Ms Lu to establish a walking, cycling, and equestrian trail that would traverse a right of way granted to them by an easement. They filed a statement of claim containing three causes of action: public and private nuisance and derogation from the grant of the easement. Ms Lu applied for a stay of the proceeding on the basis that the easement contained an implied term requiring any dispute to be referred to arbitration. The court was required to decide whether the application for a stay was justified and, if so, which party should bear the costs of the application.

Ms Lu argued that the application for a stay was justified because the easement contained an implied term requiring any dispute to be referred to arbitration. However, Mr and Mrs Simunac contended that the application should be dismissed because two of the three causes of action in their statement of claim could not be determined by arbitration. The court accepted that the application for a stay always faced a significant obstacle because the original statement of claim contained two other causes of action, neither of which could have been determined by arbitration. The fact that Ms Lu was ultimately forced to withdraw the application for stay does not mean Mr and Mrs Simunac were the successful parties.

The court considered that the interests of justice would be served by leaving costs to lie where they fall. The court dismissed the application for a stay and made no order as to costs. The court also noted that there remains on file an application on notice for an interim injunction and requested that the plaintiffs advise the court whether fixture time will be required. If the application for an interim injunction is not to be pursued, the proceeding will be allocated a first case management conference before an Associate Judge on the first available date after 1 April 2023.

There is no order as to costs. The application for an interim injunction will be determined in due course.

Orders