Jacobs v Waikato District Council - [2015] NZHC 1372

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2013-419-887 [2015] NZHC 1372

BETWEEN
DONALD CLIFTON JACOBS

Appellant

AND

WAIKATO DISTRICT COUNCIL Respondent

Hearing: 4 and 12 June 2015

Counsel:

C T Gudsell QC and S Lu for Appellant
P Moodley for Respondent

Judgment:

17 June 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 17 June 2015 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Anthony J Nolan, Hamilton Brookfields, Auckland Counsel:
C T Gudsell QC, Hamilton

JACOBS v WAIKATO DISTRICT COUNCIL [2015] NZHC 1372 [17 June 2015]

Introduction

[1] Waikato District Council (the Council) sued Mr Jacobs in the District Court at Hamilton for arrears of rates. While Mr Jacobs agreed that a sum of $18,307.33 was owing, he brought a counterclaim in an endeavour to extinguish or reduce the Council’s claim. Both claim and counterclaim were heard by Judge Glen Marshall, on 13 June 2013. In a judgment delivered on 19 September 2013,1 the claim succeeded but the counterclaim was dismissed.

[2] In the District Court, Mr Jacobs had contended that the Council was wrongfully discharging storm water on to his property. He sued the Council for committing the tort of private nuisance, claiming damages for an alleged loss of rental of $124,800. Mr Jacobs appeals against dismissal of his counterclaim. He does not challenge the correctness of the judgment for arrears of rates.

[3] In determining the claim, the Judge took the view that “the collection by the Council of storm water into a drainage works [had not] caused material or substantial physical damage” to Mr Jacobs’ property.2 It is agreed that proof of material damage (in contrast to something that might be regarded as de minimis) must be established as an element of the tort.3

[4] Initially, the appeal was set down for hearing on 4 June 2015. It was adjourned until 12 June because the Council advanced additional grounds on which it wished to support the judgment. Although they had also been argued in the District Court, I gave time for counsel for Mr Jacobs to respond fully to those points.
The appeal was heard on 12 June 2015.

1 Waikato District Council v Jacobs DC Hamilton CIV-2012-024-126, 19 September 2013 (Judge
Glen Marshall).
2 Ibid, at para [49].
3 See paras [13] and [14] below.

Background4

[5] The dispute concerns a property in Ngaruawahia. In 1988, that (and other contiguous or nearby) property was held by the Crown, for railway purposes. Three easements in gross were granted in favour of the Ngaruawahia Borough Council (one of the Council’s predecessors) to enable water to be conveyed over parts of the property. Although the precise date on which these easements were granted is unclear, it is plain that when Mr Jacobs took title to the property in 1996 he did so subject to the Council’s rights to convey water over those three easements. The easements are marked A, B and C…

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.

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Details

Case: [2015] NZHC 1372
Decision Date: 17 June 2015

CaseChat Overview and Summary

The appeal before the court was brought by Donald Clifton Jacobs against the Waikato District Council. Mr Jacobs sought to overturn the decision of the District Court, which had dismissed his counterclaim in a proceeding brought by the Council for arrears of rates. The counterclaim pertained to a claim by Mr Jacobs for damages in the tort of private nuisance, as a result of the Council's alleged wrongful discharge of storm water onto his property. The District Court had found that the Council had not caused material or substantial physical damage to Mr Jacobs' property, and accordingly dismissed the counterclaim. The appeal was dismissed by the court, and the Council was awarded costs.
The primary issue for the court was whether the District Court had correctly found that Mr Jacobs' counterclaim in private nuisance had not been established, because it had not been proved that the Council's discharge of storm water had caused material or substantial physical damage to his property. The court also considered whether the Council could rely on statutory authority to discharge storm water over areas of Mr Jacobs' property that were not within the easements in gross.
The court found that there was insufficient evidence to establish that the Council's discharge of storm water had caused material or substantial physical damage to Mr Jacobs' property. The court was not satisfied that the evidence provided by Mr Jacobs was sufficient to demonstrate that relevant parts of the land had been rendered "unusable". The court agreed with the District Court's finding that an essential element of the tort of private nuisance had not been proved. The court also expressed doubt as to whether the Council could rely on statutory authority to discharge storm water over areas of Mr Jacobs' property that were not within the easements in gross, but did not make a conclusive finding on that issue. The appeal was dismissed, and the Council was awarded costs.
The court dismissed the appeal and awarded the Council costs on a 2B basis, together with reasonable disbursements. The costs were limited to the hearing on 12 June 2015, given the reason for the adjournment. In the absence of agreement, costs and disbursements were to be fixed by the Registrar. The court urged the parties to consider a means of settling the dispute, and suggested that a formal mediation process would be the best route to resolution. However, the court could not compel the parties to negotiate or reach an agreement.

Orders