Former Hamilton and Auckland mayoral candidate Lisa Lewis lost her latest legal bid against her neighbour, the Hamilton Cosmopolitan Club. Photo / Supplied
Could the long-running spat between Lisa Lewis and her former neighbour, the Hamilton Cosmopolitan Club, finally be at an end?
The OnlyFans star took a case against the club for nuisance and won $10,000 in damages and almost $40,000 in costs but that was overturned on appeal in the High Court.
Now Lewis, who became an overnight celebrity when she streaked an All Blacks match in her bikini in 2006, has lost an attempt to appeal that decision.
The saga began six years ago when Lewis, who was renting a house only accessible via the Cosmopolitan Club’s carpark, made a series of complaints about the behaviour of club patrons.
In a Court of Appeal judgment released this month, Justices Brendon Brown and Christine French said Lewis had rented the property since 2013 without issue but that changed when the club appointed a new manager in 2017.
Because of a lamp post, power pole, and bollards, the only vehicle access to the property was through the club’s carpark.
The club, which touts itself as the “friendliest” in town, had no objection to the arrangement until the relationship soured.
According to the District Court judgment, Lewis and the new manager Ian Morgan, knew each other when Lewis rented a room from him at the Sails Motor Inn.
Morgan asked her to leave the motel and the pair had a “mutual dislike” of each other.
In 2017, after Morgan became the club’s new manager, there were “numerous incidents, complaints and counter-complaints”, Justices Brown and French wrote.
The events culminated in a trespass notice on Lewis in September 2020 followed by the erection of a large metal fence preventing her from accessing her property in November that year.
“Police were involved and brokered an agreement that Ms Lewis could access her property via a slightly different route than before but still involving the carpark.”
But the problems continued.
In December 2020 Lewis filed proceedings in the District Court against the club for nuisance.
Her complaints included 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 illegal parking of motor homes, and excessive light from floodlights in the carpark.
The club counter-sued for trespass.
District Court Judge David Cameron found the club’s behaviour was “insidious” and that it was a nuisance to Lewis by preventing her legitimate access to her residence.
He said the trespass notice was invalid and also a nuisance, but while the behaviour of carpark users and the excessive lighting provided context, they were not a nuisance.
However, the club appealed and in the High Court, Justice Timothy Brewer allowed the appeal on two main grounds.
First, he said the District Court judge erred by deciding the case outside the pleadings because Lewis never pleaded that the denial of access to the carpark and the trespass notice constituted actionable nuisances.
The second error was that the club’s actions blocking access were not by law a nuisance because Lewis did not have a legal right to cross the club’s land.
“At best, all she had was a bare permission given orally which was revocable at will.”
Lewis’ lawyer Fraser King argued Justice Brewer should have reconsidered the District Court’s decision not to hold the club liable for the offensive behaviour of carpark users, club members, and employees.
The Court of Appeal justices agreed it was arguable the District Court erred in ruling the allegations about excessive noise and light were not nuisances.
They said it was well established a landowner could be liable for nuisances on their land by people under their control, which the club’s patrons and staff arguably were.
However, the justices said the point was never argued in the High Court.
King said that was because Justice Brewer wrongly believed that because Lewis failed to file a notice of cross-appeal she was prevented by High Court rules from being able to raise it.
He argued the judge in fact had broad powers to dispense with the need for a formal notice of cross-appeal or adjourn the hearing for one to be filed.
Justices French and Brown obtained a transcript of the High Court hearing and discovered Justice Brewer was not only aware of this but more than once offered King the opportunity to argue the other alleged nuisances.
But it would mean adjourning the High Court appeal to “some time in the future” and King chose not to take that option.
“In our view, this is fatal to any attempt to resurrect the argument on a second appeal,” the Appeal Court judges said.
“It is not in the interests of justice for a second appeal to be used as an opportunity to revive an argument that a party has made a deliberate choice to abandon in the court below.”
King also argued Justice Brewer failed to take into account the possibility of Lewis having the benefit of an easement over the carpark.
But the justices said this was never argued in either the District or High courts.
While Lewis’ landlord Andrew Bydder was now seeking a declaration for easement in the High Court - which the club unsuccessfully tried to strike out - the Court of Appeal said this was a new argument and only in “exceptional and rare circumstances” would it consider entertaining a new argument on a second appeal.
“We are not persuaded that the circumstances of this case warrant that indulgence.
“Indeed, in our view, it would be very wrong for this court on a second appeal to consider a new issue when that very same issue is at the heart of an extant High Court proceeding and is one which requires evidence.”
For those reasons and more the court declined leave to appeal and ordered Lewis pay the club’s legal costs, unless she was funded by Legal Aid.
Bydder, a Hamilton City Councillor, said Lewis no longer lived at the property because of the situation and he was unsure if she would continue to fight.
His case for easement was still before the High Court.
Natalie Akoorie is the Open Justice deputy editor, based in Waikato and covering crime and justice nationally. Natalie first joined the Herald in 2011 and has been a journalist in New Zealand and overseas for 27 years, recently covering health, social issues, local government, and the regions.
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