SPAK (1996) Ltd v LeRoy

Case [2022] NZCA 564


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA614/2021
 [2022] NZCA 564

BETWEEN

SPAK (1996) LIMITED
Appellant

AND

REECE LEROY
First Respondent

BODY CORPORATE 407404
Second Respondent

Hearing:

19 July 2022

Court:

Courtney, Thomas and Peters JJ

Counsel:

D M Salmon KC, M Eastwick-Field and S J Shanks for Appellant
E J H Morrison and C J H Fraser for Respondent

Judgment:

18 November 2022 at 10.15 am

JUDGMENT OF THE COURT

AThe appellant’s application to adduce further evidence is declined.

BThe first respondent’s application to adduce further evidence is granted.

CThe appeal against summary judgment is dismissed.

DThe appeal against the award of indemnity costs is allowed.

ECosts on the appeal to this Court are reserved.

FCosts in the High Court are remitted back for determination in that Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Table of contents

Introduction  [1]

Background  [2]

The building  [3]
COVID-19  [10]
The Hoardings Incident  [12]
First alleged trespass — 4 July 2020 (the Door Knocking Incident)                  [19]
Second alleged trespass — 22 July 2020 (the Letter Drop Incident)                  [21]
SPAK commences proceedings  [24]

The pleadings  

Statement of claim  [40]
Statement of defence  [46]
Application for summary judgment  [49]
Application for strike out  [50]
SPAK’s contempt application  [51]

The evidence  [52]

The Hoardings Incident — 21 June 2020  [56]
The Door Knocking Incident – 4 July 2020  [66]
The Letter Drop Incident – 22 July 2020  [70]

Application to adduce further evidence on appeal  [74]

Judgment under appeal  

Summary judgment application  [83]

The Hoardings Incident  [84]
The Door Knocking Incident  [87]
The Letter Drop Incident  [89]

Conclusion on summary judgment  [90]
Strike out application  [91]

Relevant law  [102]

  1. Trespass  [103]

Trespass by a thing entering land  [104]
Is returning goods to their owner a defence?  [105]
Remedies  [106]

  1. Easements  [111]

Misuse of easements  [113]
“Civiliter” principle  [114]
Variation of easements  [119]
Nuisance  [122]

SUMMARY JUDGMENT  

The law  [125]

Submissions  [132]

Discussion  

The Hoardings Incident  [139]
The Door Knocking Incident  [144]

Admissibility of the cellphone video  [146]

The Letter Drop Incident  [152]
Damages  [159]
Interim injunction application  [161]
Natural justice  [162]
Conclusion on summary judgment  [163]

STRIKE OUT  

The law  [168]

Submissions  [171]

Discussion  

The strike out application  [176]
Frivolous and vexatious  [178]
Improper purpose  [182]

Costs  [188]

Indemnity or increased costs  [189]

Result  [195]

Introduction

  1. In September 2020, SPAK (1996) Limited (SPAK), the operator of an Auckland hotel intended for use as a managed isolation facility in response to the COVID-19 pandemic, commenced proceedings in trespass against Reece LeRoy, the building manager of apartments located within the same building as the hotel.  In October 2020, SPAK obtained an interim injunction against Mr LeRoy restricting his entry into the hotel.  Almost a year later, by which time Mr LeRoy had ceased working as the building manager, the High Court gave summary judgment dismissing SPAK’s trespass claim, finding SPAK had no arguable case against Mr LeRoy and that it had an improper purpose in bringing the proceeding.[1]…

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SPAK (1996) Ltd v LeRoy [2022] NZCA 564
Case
[2022] NZCA 564
Decision Date

CaseChat Overview and Summary

SPAK (1996) Limited (SPAK) commenced proceedings in trespass against Reece LeRoy, the building manager of apartments located within the same building as the Hotel. SPAK obtained an interim injunction against Mr LeRoy restricting his entry into the hotel. Almost a year later, by which time Mr LeRoy had ceased working as the building manager, the High Court gave summary judgment dismissing SPAK’s trespass claim, finding SPAK had no arguable case against Mr LeRoy and that it had an improper purpose in bringing the proceeding. Indemnity costs were awarded. SPAK now appeals. The appeal concerns the High Court’s dismissal of SPAK’s claim for trespass against Mr LeRoy. SPAK’s claim was based on three alleged trespasses by Mr LeRoy, the building manager of the apartments. The Court of Appeal rejected SPAK’s appeal on summary judgment and strike out and held the appeal against the award of indemnity costs was allowed. The Court of Appeal found that SPAK’s trespass claims were trivial and petty and, to that extent, an abuse of process. The proceedings were frivolous and, by the time of the application for summary judgment and strike out, there was no proper purpose in continuing with them. The Court of Appeal agreed with the Judge that, had summary judgment not been granted, the claim should nevertheless have been struck out. The Court of Appeal allowed the appeal in respect of indemnity costs and remitted the matter back to the High Court for costs on the summary judgment and strike out to be considered afresh.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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