LEWIS v HAMILTON COSMOPOLITAN CLUB INCORPORATED [2023] NZCA 484

LEWIS v HAMILTON COSMOPOLITAN CLUB INCORPORATED [2023] NZCA 484 [5 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA126/2023[2023] NZCA 484BETWEEN LISA ROCHELLE LEWISApplicantAND HAMILTON COSMOPOLITAN CLUBINCORPORATEDRespondentCourt: French and Brown JJCounsel: F A King for ApplicantT C Tran for RespondentJudgment:(On the papers)5 October 2023 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements. This costs order has no effect if theapplicant is in receipt of a grant of legal aid for the purposes of thisapplication.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Ms Lewis obtained a damages award of $10,000 in the District Court againsther neighbour, Hamilton Cosmopolitan Club Inc (the Club), for nuisance.1 The Clubappealed to the High Court. The appeal was allowed by Brewer J who quashed thejudgment in favour of Ms Lewis and upheld the Club's counterclaim against her fortrespass.2 The Judge subsequently declined Ms Lewis leave to appeal his decision.3[2] Ms Lewis now seeks leave from this Court to bring her proposed appeal unders 60(1) of the Senior Courts Act 2016. Leave is required because the appeal would bea second appeal. In order to obtain leave, Ms Lewis must satisfy us that her proposedappeal raises some seriously arguable question of law or fact, of sufficient private orpublic importance to warrant the cost and delay of a further appeal.4Background[3] Since 2013, Ms Lewis has occupied a rental property situated adjacent tothe Club's car park. The property she rents was previously owned by the Club beforebeing subdivided off and sold to a third party. Due to various impediments includinga lamp post, a power pole and bollards, vehicular access to the property is only possiblevia the Club's car park.[4] The Club had no objection to Ms Lewis accessing her property via the car parkuntil 2017 when her relationship with the Club deteriorated following the appointmentof a new manager. There were numerous incidents, complaints and counter-complaints. These events culminated in the service of a trespass notice on Ms Lewisin September 2020 and then the erection of a large metal fence preventing her fromaccessing her property in November 2020. Police were involved and brokered anagreement that Ms Lewis could access her property via a slightly different route thanbefore but still involving the car park.1 Lewis v Hamilton Cosmopolitan Club Inc [2022] NZDC 1569 [District Court decision].2 Hamilton Cosmopolitan Club Inc v Lewis [2022] NZHC 2555 [Decision under appeal].3 Lewis v Hamilton Cosmopolitan Club Inc [2023] NZHC 154 [Leave decision].4 Waller v Hider [1998] 1 NZLR 412 (CA) at 413, citing Rutherfurd v Waite [1923] GLR 34 andCuff v Broadlands Finance Ltd [1987] 2 NZLR 343 at 346–347.[5] However, the problems continued.[6] In December 2020, Ms Lewis filed proceedings in the District Court againstthe Club for nuisance. The statement of claim detailed Ms Lewis' complaints whichincluded excessive noise from club patrons, tooting of horns late at night, verbal abuse,urination and defecation on the boundary fence, obstruction of her vehicle, the illegalparking of motor homes on the car park,5 and excessive light from floodlights used toilluminate the car park. The Club counter-claimed for trespass.[7] The key findings made by the District Court Judge were that:(a) the Club had committed a nuisance in a number of respects, with the"essential nuisance" being the Club's attempts to prevent Ms Lewis'legitimate accessway to her residence;6(b) the trespass notice was invalid because it was not authorised underthe Club's constitution and issuing it was in itself an act of nuisance;7and(c) the behaviour of car park occupants, matters relating to motorhomesand excessive lighting of the car park provided context as to Ms Lewis'position, but were not acts of nuisance.8[8] In the High Court, Brewer J allowed the Club's appeal on two main grounds.9First, that the District Court Judge had erred by deciding the case outside the pleadings,Ms Lewis having never pleaded that the denial of access to the car park and the issuingof the trespass notice constituted actionable nuisances.10 The second error was that inany event the Club's actions blocking access were not capable as a matter of law ofamounting to a nuisance given that Ms Lewis did not have an actionable right to cross5 This activity was purported to be illegal because the Club did not have the necessary resourceconsent to use its car park for that purpose.6 District Court decision, above n 1, at [19].7 At [15] and [19].8 At [22].9 Decision under appeal, above n 2.10 At [69].the Club's land.11 At best, all she had was a bare permission given orally which wasrevocable at will.12[9] The Judge did not address the fact that the police-brokered agreement occurredafter service of the trespass notice and the removal of the fence which would arguablysuggest the bare licence had been reinstated. We assume he did not address that pointbecause on his analysis, the Club would in any event be free to resile from that secondagreement at any time and on the evidence the Club had so resiled.The proposed appeal[10] Counsel for Ms Lewis, Mr King, seeks to advance a number of appeal grounds.The key aspects can be briefly summarised as follows.[11] First, Mr King challenges the High Court's reliance on the pleading point, andfurther contends that Brewer J failed to take into account the possibility of Ms Lewishaving the benefit of an equitable easement over the car park.[12] Second, he contends Brewer J should have reconsidered the District Court'sdecision not to hold the Club liable in nuisance for the offensive behaviours of carpark users, club members and employees.Analysis[13] We agree it is reasonably arguable the District Court erred in regarding theallegations about excessive noise and light as not capable of amounting to actionablenuisances. In making that finding, the Judge appears to have relied on the difficultiesof controlling visitors in combination with the fact the Club had systems in place tominimise disturbances and had generally followed up on Ms Lewis' complaints.13However, nuisance is a tort of strict liability and it is well established that an occupierof land can be strictly liable for nuisances created on their land by people under their11 At [70].12 At [72].13 District Court decision, above n 1, at [22].direct control, such as guests and employees.14 Patrons, club members, club staff andpeople in motorhomes who were granted permission to park in the Club's car parkwere arguably all under the Club's direct control.[14] This point was never argued in the High Court. Mr King says that is becauseBrewer J wrongly held that as a result of Ms Lewis' failure to file a notice ofcross-appeal she was prevented by r 20.11 of the High Court Rules 2016 from beingable to raise it. This, Mr King contends, was wrong because the Judge in fact hadbroad powers under r 20.11(4) to dispense with the need for a formal notice ofcross-appeal or adjourn the hearing for one to be filed.[15] Because the parties did not agree what had happened in the High Court, weobtained a transcript of the hearing and provided it to counsel. Contrary to a furthersubmission made by Mr King, it is very clear from the transcript that Brewer J wascognisant of his discretion under r 20.11(4). The Judge indicated more than once thathe was willing to give Mr King the opportunity to advance an argument about the otheralleged nuisances but that it would mean adjourning the appeal to "some time in thefuture". Mr King chose not to take that option.[16] In our view, this is fatal to any attempt to resurrect the argument on a secondappeal. It is not in the interests of justice for a second appeal to be used as anopportunity to revive an argument that a party has made a deliberate choice to abandonin the court below.[17] Turning then to the issue of access and what Mr King describes as "the vehicleblockage nuisance". While the statement of claim may not have specifically identifiedthe prevention of access as a nuisance, we note that the trespass notice, the fenceincident and the obstruction incidents were described in some detail and so brought tothe Club's attention. Those incidents also appear to have been the subject of evidenceand submissions from both parties. In those circumstances, it is reasonably arguablethe High Court may have overstated the prejudice to the Club caused by any pleadingfailures.14 Bill Atkin "Nuisance" in Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington,2023) at [9.2.6(2)] and [9.2.7].[18] However, while a degree of leniency towards pleadings is possible, it can onlygo so far. Mr King now wishes to advance an argument about the existence of anequitable easement: either an equitable easement arising from Ms Lewis' ownlong-standing usage of the car park or an equitable easement arising in favour of therented property by way of an implied grant dating back to 1989.[19] The statement of claim made no claim about the existence of an equitableeasement. The existence of such an easement was never argued in the District Courtand never argued in the High Court. It was raised in the application to Brewer J forleave to appeal to this Court by way of an affidavit from a representative of the trustwhich owns the property rented to Ms Lewis.[20] The affidavit gives a brief history of the two properties. It refers to the Club'sinstallation of services on the accessway at the time it owned both properties.The installations are said to have impeded vehicular access from at least 1989 to theproperty now occupied by Ms Lewis, rendering use of the car park as a means of accessreasonably necessary. The affidavit goes on to state that the property now occupiedby Ms Lewis was subdivided off and sold by the Club in 2005. The trust purchasedthe property in 2013 and contends that the vehicular use of the car park from theproperty must in all the circumstances have been at least impliedly granted andexpected to continue because the vehicle accessway was still blocked and not properlyformed.[21] Since that affidavit was filed, the trust has issued proceedings in the High Courtseeking a declaration that the property owned by the Club is subject to an equitableeasement of right of way in favour of the property the trust owns. The proceeding hasrecently survived the Club's application to strike it out.15 Associate Judge Brittain,who allowed the trust's claim to go to trial, found that the contentions about an impliedgrant were reasonably arguable on the available evidence.16[22] Mr King relies on this recent High Court decision to support his application fora second appeal in this proceeding. Mr King also notes that in declining leave to15 Neutrino Trust Ltd v Hamilton Cosmopolitan Club Inc [2023] NZHC 2475.16 At [53].appeal, Brewer J made no reference to the trust's affidavit, the implication being thatit was overlooked and would or should have made a difference to the outcome of theapplication.17[23] However, this Court will only in exceptional and rare circumstances considerentertaining a new argument on a second appeal.18 We are not persuaded that thecircumstances of this case warrant that indulgence. Indeed, in our view it would bevery wrong for this Court on a second appeal to consider a new issue when that verysame issue is at the heart of an extant High Court proceeding and is one which requiresevidence.[24] That leaves the issue of the validity of the trespass notice, which Mr Kingsubmits is an issue of general or public importance because it will impact on otherclubs elsewhere in the country. However, on its own, that issue is actually ofperipheral importance in this case and would not be determinative. We also reject thesuggestion that publicity around the dispute between Ms Lewis and the Club makes itof sufficient public importance for there to be a second appeal. The publicity appearsto largely stem from the bitterness of the dispute, not the importance of the legal issues.[25] For all these reasons we have decided the application for leave to appeal shouldbe declined.[26] As regards the costs of the application, subject to one matter, there is no reasonwhy these should not follow the event, meaning that the unsuccessful party must paythe costs of the successful party. The one matter is the question of whether Ms Lewisis legally aided. This Court has not been advised that such a grant has been made.However, in the application for leave to appeal to the High Court, counsel advised thatlegal aid had been obtained. In order to preserve the position, we therefore make acosts order that is contingent on Ms Lewis not being in receipt of legal aid.17 Leave decision, above n 3.18 See Harvey v Tasman District Council [2020] NZCA 91 at [10].Outcome[27] The application for leave to appeal is declined.[28] The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements. This costs order will not take effect if theapplicant is in receipt of a grant of legal aid for the purpose of this application.Solicitors:McKenna King Dempster, Hamilton for ApplicantWebb Gould Law, Hamilton for Respondent