Bowie v Weyburne - [2013] NZHC 1728

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2627 [2013] NZHC 1728

IN THE MATTER of an application for Contempt of Court

BETWEEN

ALISON FRANCES BOWIE, TAYLOR ASSOCIATES TRUSTEE COMPANY LIMITED and INDEPENDENT TRUST COMPANY (2011) LIMITED as trustees of The Bowie Trust

Plaintiff

AND

BRIAN PHILLIP WEYBURNE and JILLIAN MARIE WEYBURNE Defendant

Hearing: 8 July 2013

Appearances:

R.J.B. Fowler QC & D.J.S. Parker - Counsel for the Plaintiffs
J.A. Langford - Counsel for the Defendants

Judgment:

7 August 2013

JUDGMENT OF D GENDALL J

Introduction

[1] The plaintiffs who are trustees of a Trust known as the Bowie Trust (the Bowie Trust) seek an order that the defendants be held in contempt for breach of an undertaking to the Court dated 22 February 2012 and be fined in respect of such contempt.

[2] The application for an order for contempt was filed on 4 April 2013 and opposed by the defendants in a Notice of Opposition filed 28 June 2013.

[3] At the outset, Mr Fowler QC, counsel for the plaintiffs confirmed that the order for contempt sought by the Bowie Trust was now one sought against the first-

BOWIE, TAYLOR ASSOCIATES TRUSTEE COMPANY LIMITED and INDEPENDENT TRUST COMPANY (2011) LIMITED as trustees of The Bowie Trust v WEYBURNE [2013] NZHC 1728 [7 August 2013]

named defendant Bryan Phillip Weyburne (Mr Weyburne) alone, and that the second-named defendant, his wife Jillian Marie Weyburne (Mrs Weyburne) was released as a party to this contempt proceeding. Mrs Weyburne, however, is to remain as a defendant party to the substantive proceeding itself. No objection to this was raised by Mr Langford who appeared as counsel for Mr Weyburne.

[4] The case before me concerned a breach of the undertaking which was given to the Bowie Trust and the Court at the time to avoid the need for an interim injunction to issue. The background to this matter involves some considerable history dating back as far as 2006. The Bowie Trust and Mr and Mrs Weyburne are neighbours. They own apartments in a block at 308 Oriental Parade, Wellington, the Bowie Trust at Apartment 5 and the Weyburnes immediately above (and partly behind) at Apartment 6. A problem developed for these neighbours several years ago involving significant water leakage from the deck of Mr and Mrs Weyburnes’ Apartment 6 through the roof and into Apartment 5 of the Bowie Trust underneath.

[5] This leaking resulted in some major work being undertaken to the deck of Apartment 6 by Mr and Mrs Weyburne in October 2011. It involved contractors uplifting the tiles and membrane to the deck and replacing them with what was thought to be a waterproof surface. It seems this attempt generally was unsuccessful and whilst the deck area was uncovered substantial additional leaking was caused by rain passing through the roof of the Bowie Trust’s Apartment 5.

[6] Injunction proceedings were initiated by the Bowie Trust on two occasions in December 2011 and early 2012. These culminated in the undertaking…

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 Bowie v Weyburne

Details

AGLC: Bowie v Weyburne [2013] NZHC 1728
Case: [2013] NZHC 1728
Decision Date: 7 August 2013

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine if Brian Phillip Weyburne was in contempt of court for breaching an undertaking to stop water leaking from his apartment into the apartment of Alison Frances Bowie. The court had to decide if the breach was deliberate and wilful and what penalty, if any, should be imposed on Mr Weyburne. The court found that Mr Weyburne had breached the undertaking given to the court in February 2012, which was clear, detailed, and unequivocal. Despite some work being done to the property, little had occurred in recent times, and the water leakage problem remained serious. The court found that Mr Weyburne's breach of the undertaking was both deliberate and wilful, and constituted contempt. The court ordered that Mr Weyburne pay a fine of $5000, with $2500 to the Bowie Trust and $2500 to the Crown, and that this matter be listed in the Judge's Chambers List every two months to monitor compliance with the undertaking. The Bowie Trust was also awarded indemnity costs on a full solicitor and client basis.

Orders