Walmsley Enterprises Limited v Aitchison - [2018] NZHC 3071

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-485

[2018] NZHC 3071

BETWEEN WALMSLEY ENTERPRISES LIMITED & ORS
Appellant

AND

PETER AND SYLVIA AITCHISON

Respondents

Hearing: On the papers

Judgment:

23 November 2018

JUDGMENT OF CLARK J

Introduction

[1] Mr Walmsley applies to recall my judgment issued on 30 June 20171 determining an appeal and cross-appeal against costs orders made in the Environment Court.2 I dismissed Walmsley Enterprise Ltd’s appeal and dismissed also the cross- appeal by the respondents against the amount awarded to them by way of indemnity costs.

[2] The Environment Court awarded costs following enforcement proceedings brought in that Court seeking the removal of a structure which the Walmsleys had erected on the boundary between them and their neighbours, the Aitchisons.3

1      Walmsley Enterprises Ltd v Aitchison [2017] NZHC 1504, [2018] NZRMA 117 [2017 costs appeal judgment].
2      Aitchison v Walmsley [2016] NZEnvC 114 [EC Enforcement costs decision].
3      Aitchison v Walmsley [2016] NZEnvC 13 [EC Enforcement decision].

WALMSLEY ENTERPRISES LIMITED & ORS v AITCHISON [2018] NZHC 3071 [23 November 2018]

Application for recall

[3] Mr Walmsley applies for recall of the 2017 costs appeal judgment on the following three grounds:

(a)The judgment misrepresents or incompletely represents the Environment Court’s position on the effects of the structure “re- exposed in a new decision”.

(b)The Council obtained a decision by deception (intentional or unintentional) because the Council advised the Court and the Walmsleys it expressly recognised effects as being within the District Plan to obtain a declaration which was then not appealed and after which the Council told another Court that it did not expressly recognise the effects as being within the District Plan to get another decision on another matter.

(c)I have not attempted to summarise the third ground as I am at risk of misunderstanding it. I set out Mr Walmsley’s third ground at it appears in his application.

Seeking finality in litigation now instead of a new series of proceedings against the Council for professional negligence around the change in position on effects between court cases.

[4] Mr Walmsley says the need to correct my judgment arises from a further decision which I delivered on 10 July 2018 determining another costs appeal between the parties following separate but related litigation.4 In my summary of the Environment’s Court’s decision I stated:5

The Environment Court identified deficiencies in the Council’s approach. The Council “knew full well” of the Aitchisons’ opposition and that they had identified significant likely adverse effects on their amenity.

4 Aitchison v Wellington City Council [2018] NZHC 1674 [2018 costs appeal judgment].
5 At [9].

[5] Mr Walmsley seeks correction of what he describes as the following misrepresentations in my judgment:6

[36] … The Court accepted the evidence of the expert planning witness for the Council, Mr Ulusele, that there was no evidence in the decision of the Hearing Committee that it thought the type of effects that arose for the Aitchisons would…

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.

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Details

Case: [2018] NZHC 3071
Decision Date: 23 November 2018

CaseChat Overview and Summary

Walmsley Enterprises Limited and others appealed against the costs orders made by the Environment Court, which had awarded costs following enforcement proceedings brought to remove a structure erected by the Walmsleys on the boundary with their neighbours, the Aitchisons. The Aitchisons cross-appealed against the amount awarded to them by way of indemnity costs. Clark J dismissed both the appeal and the cross-appeal. In this matter, Mr Walmsley applied for recall of the judgment issued on 30 June 2017. He contended that the judgment misrepresents or incompletely represents the Environment Court's position on the effects of the structure, that the Council obtained a decision by deception, and that seeking finality in litigation now instead of a new series of proceedings against the Council for professional negligence around the change in position on effects between court cases. The court held that there was no basis for Mr Walmsley's assertion that there was an error in the judgment of June 2017. The application for recall was dismissed.

The court held that the first ground of Mr Walmsley's submission reflected a misconception about the passages which he would have corrected and substituted. The July 2018 costs appeal judgment did not contradict the June 2017 costs appeal judgment. The June 2017 costs appeal judgment considered the Environment Court's award of costs on the enforcement application in that Court. The Environment Court concluded the Council had not expressly recognised the adverse effects of the structure which was the subject of the application for an enforcement order. The second ground of Mr Walmsley's submission was that the paragraphs which he would have recalled simply summarised the Environment Court's findings. The court held that the statements accurately reflected the Environment Court's findings and, as such, there was no error to be corrected. The third ground of Mr Walmsley's submission was that the Court of Appeal refused leave to Mr Walmsley to appeal the 2017 costs appeal decision. The court held that there was no basis for Mr Walmsley's assertion that there was an error in the judgment of June 2017. The threshold for recall was high. This reflected the need for finality in litigation. This was particularly important in a case such as the present, where there was a prolonged history of litigation in respect of the same dispute. The application for recall was dismissed.

Orders