McIntosh v Morris

The applicants, McIntosh and Morris, sought leave to appeal from a decision of the District Court concerning a claim for trespass to land. The dispute involved a subterranean encroachment from the defendants’ land onto the plaintiffs’ land. The plaintiffs alleged a continuing trespass due to the presence of encroaching material affixed to the defendants’ land, even though the defendants were not in possession when the encroachment was constructed.

The primary legal issues before the Court of Appeal were whether the defendants could be held liable for a trespass committed by their predecessor in title, and whether the encroaching material constituted a trespassory encroachment affixed to the defendants’ land. Additionally, the court considered the appropriate orders for costs, particularly in light of the general rule that costs follow the event and the potential application of exceptions such as Calderbank offers or the reasonableness of the parties' conduct.

The Court of Appeal reasoned that a continuing trespass occurs when an object is placed on another's land without consent, and that liability for such a trespass can extend to a successor in title who has the power to remove the encroaching object. The court found that the encroaching material was indeed affixed to the defendants' land and constituted a continuing trespass. Regarding costs, the court determined that the general rule should not apply and that each party should bear their own costs of the District Court proceedings and the appeal.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the District Court's cost orders. The court ordered that there be no order as to the costs of the District Court proceedings, meaning the parties were to bear their own costs. Similarly, no order was made as to the costs of the appeal, with the parties to bear their own costs.