Graham v Scott - [2012] NZHC 2834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-1722 [2012] NZHC 2834

BETWEEN TONY GEORGE GRAHAM and ELMSLIE ESTATE LIMITED Appellants

ANDGAVIN ROBERT SCOTT and PATRICK ROBIN VAN BERKEL
Respondents

Hearing: 25 October 2012

Counsel: P W Michalik for the Appellants
Respondents in person

Judgment: 26 October 2012

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] The background ................................................................................................................................ [2] The proceedings ................................................................................................................................. [6] The settlement...................................................................................................................................[11] Exemplary damages ........................................................................................................................ [13] Costs ................................................................................................................................................. [32]
Result ................................................................................................................................................ [41]

GRAHAM v SCOTT HC WN CIV 2012-485-1722 [26 October 2012]

Introduction

[1] Mr Graham/Elmslie Estate Ltd appeals against a District Court judgment awarding exemplary damages to Mr Scott in the sum of $5,000 and ordering costs in Mr Scott and Mr van Berkel’s favour on a 2B basis (amounting to $13,842.55 including disbursements). The appeal is on the basis that:

(a) No claim for exemplary damages was pleaded nor addressed in the

parties’ submissions to the District Court; and

(b)In awarding costs, the District Court Judge erred in taking into account conduct that did not relate to the conduct of the proceeding, that he was wrong on a factual matter, and that he should have taken into account that Mr Graham/Elmslie Estate Ltd was the successful party.

The background

[2] The proceeding involves a dispute between neighbours. Elmslie Estate Ltd, of which Mr Graham is the principal, owns an undeveloped section in Upper Hutt. Mr van Berkel and Mr Scott own and live on developed neighbouring properties. They each enjoy the benefit of a right of way over the land owned by Elmslie Estate Ltd. That right of way was obtained at a time when the Elmslie Estate land was in the possession of the mortgagee following financial difficulties experienced by Mr Graham. Mr Graham later settled with the mortgagee and regained possession. He has never been happy with the right of way arrangements that were negotiated in his absence.

[3] Later Mr Graham wished to develop his property. He began felling trees in preparation for a possible subdivision. He also approached Mr Scott and Mr van Berkel for consent. They refused to provide that consent. Mr Graham saw this as unfair when they had enjoyed living in their houses with the benefit of access over

his land. He then went on the offensive in taking action against Mr Scott and Mr van

Berkel.

[4] The action taken is set out in more detail in the District Court judgment.[1] In summary it involved:
[1] Scott v Elmslie Estate Ltd DC Wellington CIV-2010-085-550, 20 July 2012.

(a) Sending invoices to Mr van Berkel for encroachment of a garage (by one square metre) onto Elmslie Estate land, for using the right of way for car parking, and use of part of the right of way for the storage of firewood;

(b)Sending invoices to Mr van Berkel and Mr Scott for the cost of replacing a potentially dangerous power pole, threatening referral to a debt collection agency and approaching Mr van Berkel’s bank for payment;

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 Graham v Scott

Details

AGLC: Graham v Scott [2012] NZHC 2834
Case: [2012] NZHC 2834
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Tony George Graham and Elmslie Estate Limited appealed a District Court decision awarding exemplary damages to Gavin Robert Scott and Patrick Robin van Berkel. The appeal was based on two grounds: first, that no claim for exemplary damages was pleaded or addressed in the submissions, and second, that the District Court erred in awarding costs. The background of the case involves a dispute between neighbours over a right of way on undeveloped land owned by Elmslie Estate Ltd. Mr Graham sought to develop his property, but Mr Scott and Mr van Berkel refused to consent to his plans. Mr Graham responded by taking various actions against Mr Scott and Mr van Berkel, including sending invoices, spraying a "cut" sign on Mr van Berkel's garage, placing concrete blocks on the right of way, and serving a trespass notice. Mr Scott and Mr van Berkel commenced proceedings seeking relief, including an order requiring Mr Graham to tend to hazardous trees over the right of way and an order for payment of $10,000 in damages. The parties eventually negotiated a settlement, but disputes remained over damages and costs. The District Court awarded $5,000 in exemplary damages to Mr Scott and costs in favour of Mr Scott and Mr van Berkel. The High Court found that the award of exemplary damages was improper as they were not pleaded or addressed in the submissions. However, the Court found that Mr Scott was entitled to general damages for his loss of amenity during the six-week period that the concrete block impeded his access. The award was reduced to $2,500. The Court also upheld the costs order in the District Court, finding that Mr Scott and Mr van Berkel were entitled to costs for achieving a resolution of the disputes. The appeal was partially successful, with the award of exemplary damages quashed and replaced with an award of general damages of $2,500 in Mr Scott's favour. The costs order in the District Court remained, and costs on this appeal were to lie where they fall.

Orders