Walmsley v Aitchison - [2019] NZHC 1551

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-485

[2019] NZHC 1551

BETWEEN HEATHER WALMSLEY, DAVID CULLEN WALMSLEY AND WALMSLEY
ENTERPRISES LIMITED
Applicants

AND

PETER AITCHISON AND SYLVIA AITCHISON

Respondents

Hearing: 17 May 2019

Counsel:

D C Walmsley in Person

A F D Cameron for Respondents

Judgment:

3 July 2019

Reissued:

4 July 2019

JUDGMENT OF CLARK J

Introduction

[1] On 30 June 2017, I determined an appeal and a cross-appeal against costs orders made in the Environment Court following proceedings involving the present parties.1

[2] The applicants (who I will refer to simply as Mr Walmsley) applied for recall of my 2017 costs appeal decision. For reasons set out in my judgment delivered

1 Walmsley Enterprises Ltd v Aitchison [2017] NZHC 1504, [2018] NZRMA 117 [2017 Costs appeal decision]; and Aitchison v Walmsley [2016] NZEnvC 114 [EC Costs decision].
WALMSLEY, WALMSLEY AND WALMSLEY ENTERPRISES LIMITED v AITCHISON AND AITCHISON [2019] NZHC 1551 [4 July 2019]

23 November 2018, the application for recall was dismissed.2 Mr Walmsley now applies for leave to appeal my refusal to the Court of Appeal.

Background to this litigation

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

[4] The following description of the context in which the EC Costs decision was reached is taken from the Court of Appeal’s decision declining the Mr Walmsley’s application for leave to bring a second appeal against the EC Costs decision.4
Declaratory order proceedings

[3] Mr Walmsley and his mother own a residential property through their company, Walmsley Enterprises Ltd. The Aitchisons own the residential property directly above the Walmsley property — they share a common boundary. The Walmsleys erected a four-metre high, 22-metre long structure on that boundary, comprising a solid wall with a walkway and play structure attached.

[4] The Aitchisons issued proceedings against Walmsley Enterprises and the Wellington City Council, seeking declarations under s 310(c) of the Resource Management Act that the structure contravened that Act. We refer to these proceedings as the Declaratory Order proceedings. The Aitchisons argued that the Council was wrong to view the structure as a permitted activity and therefore as not requiring a resource consent. On 17 September 2015 the Environment Court declared that the structure was not a permitted activity, it therefore did require resource consent and, for these reasons, the use of the land for the structure contravened s 9 of the Resource Management Act. That decision was then appealed to the High Court, which ultimately upheld the Environment Court’s decision.

Enforcement order proceedings

[5] Before the appeal in the High Court was determined, the Aitchisons brought proceedings in the Environment Court seeking enforcement orders under ss 17 and 319 of the Resource Management Act requiring the Walmsleys to remove the structure. These enforcement proceedings were brought on…

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 Walmsley v Aitchison

Details

AGLC: Walmsley v Aitchison [2019] NZHC 1551
Case: [2019] NZHC 1551
Decision Date: 3 July 2019

CaseChat Overview and Summary

The High Court was presented with an application for leave to appeal the refusal of the applicant's application for recall of a previous costs decision. The case involved the applicants, Heather Walmsley, David Cullen Walmsley, and Walmsley Enterprises Limited, and the respondents, Peter Aitchison and Sylvia Aitchison. The dispute originated from enforcement proceedings brought by the respondents against the applicants seeking the removal of a structure erected by the applicants on the boundary between their properties. The Environment Court had awarded costs to the respondents, which was subsequently appealed and upheld by the High Court. The applicants now sought leave to appeal the High Court's refusal to recall the costs decision. The legal issues before the court were whether the High Court's refusal to recall the costs decision constituted an "order or decision of the High Court made on an interlocutory application" and if the court had jurisdiction to grant leave to appeal the refusal of the recall application. The court found that, although the refusal of the recall application was indeed an interlocutory decision, the proceeding in which the recall application was made was governed by the former Judicature Act regime due to its initiation before the Senior Courts Act came into force. As a result, leave to appeal was not required. The court further determined that even if it had jurisdiction, it would have declined the application for leave to appeal due to the applicant's repetitive and unmeritorious attempts to relitigate the matter. The application for leave to appeal was dismissed, and the registry was directed not to accept any further documents filed on behalf of the applicants regarding the 2017 Costs appeal decision. The respondents were awarded scale costs on a 1A basis.

Orders