Pilkington v Singh

[2018] NZHC 512

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-000302 [2018] NZHC 512

BETWEEN

ROSS PILKINGTON AND RPG

TRUSTEES 2006 LIMITED AS TRUSTEES OF THE ROSS PILKINGTON FAMILY TRUST

Appellants

AND

ROBINDER SINGH AND KAMALDEEP SINGH

Respondents

Hearing:	8 March 2018
Appearances:	M Branch and S Rawcliffe for the Appellants T Braun and R Potter for the Respondents
Judgment:	23 March 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 23 March 2018 at 11am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Harkness Henry, Hamilton

Whitfield Braun Limited, Hamilton

PILKINGTON AND ANOR v SINGH AND SINGH [2018] NZHC 512 [23 March 2018]

Introduction

[1]      This is an appeal against the decision of Judge D M Wilson QC in the District Court at Hamilton, in which he dismissed the appellants’ claims against the respondents in trespass, nuisance (removal of support), and negligence. On appeal, only the claims in trespass and negligence are maintained.

Background

[2]      The appellants (for convenience, “Mr Pilkington”) own a farm property near Hamilton. The respondents (again, for convenience, “Mr Singh”) have owned the neighbouring farm property since 1 June 2005.

[3]      For a period of time between 2013 and 2015, with Mr Pilkington’s conditioned consent, Mr Singh cleaned and maintained the common boundary drain between the two properties. Mr Pilkington alleges Mr Singh exceeded the terms of that consent, and negligently caused damage to the Pilkington farm.

[4]      The essence of the negligence complaint is Mr Singh excavated the drains below the depth necessary to drain the adjoining land, and to a depth that lowered the water table, with the result Mr Pilkington’s land cracked and slumped. The trespass complaint rests on Mr Pilkington, in advance of Mr Singh carrying out any work on Mr Pilkington’s land, telling Mr Singh “not to clean the drain too deep”.

[5]      In a statement of facts for trial of liability only, the parties relevantly agreed:

(a)       their  respective  farms  are  separated  by  an  approximately  1.15km boundary drain;

(b)      the boundary between the farms is in the drain;

(c)       before Mr Singh did any work on the drain, Mr Pilkington told Mr

Singh not to clean the drain too deep;

(d)during late 2013, late 2014 and early 2015, Mr Singh’s work on parts or all of the drain to depths exceeding 0.5m;

(e)       the current depth of the drain ranges from 1.8m to 2.2m for 200m at the

O’Regan Road end; and

(f)      Mr Pilkington’s land adjacent the drain has been affected by cracking and/or slumping.

[6]      Also material are joint engineering and farming expert reports prepared for evidence at trial, relevantly agreeing:

(a)      formation of the cracks in Mr Pilkington’s land, and the lowering of the groundwater table (leading to cracking and subsidence of Mr Pilkington’s land), is attributable to the drain’s excavation; and

(b)best practice management of the water table, at 0.5m from the top of the drain bank, meant “an acceptable depth was likely to be the [sic] range of 1.2-1.8 metres”.

The judgment under appeal

[7]      In the judgment under appeal, Judge Wilson found as facts:

(a)      Mr Singh had permission from Mr Pilkington to clean and maintain the common boundary drain;

(b)cleaning and maintaining the boundary drain would lower the water table in the drain;

(c)      Mr Pilkington knew and accepted cleaning and maintenance of the boundary drain between the two properties would lead to drying out of the surface of his property and loss of land on his side;

(d)Mr Pilkington never objected to Mr Singh’s methodology of cleaning the drain using his digger positioned on Mr Singh’s side of the drain and necessarily reaching across the boundary line between the properties; and

(e)      no issue was raised with Mr Singh about the way in which he was doing the drainage work until after the final drainage work in 2015.

[8]      Judge Wilson addressed the joint experts’ reports briefly. He said:

Mr Pilkington did not explain to Mr Singh what he meant by “too deep”. [Mr Pilkington’s counsel] submitted that the term must be taken to accord with the findings of the experts. I do not accept that submission given the experts’ reports came to hand many years later and cannot be held to have been anticipated by the two men.

In a footnote to the last sentence above, the Judge noted:

No pleading alleged and no submission was made that the extensive [Environment Waikato] reports on peat land drainage … were part of the discussion between the two, or that either of them was aware of those reports.

[9]      The Judge held Mr Pilkington  consented to Mr Singh’s  entry to the  Mr Pilkington’s land for drain cleaning and maintenance purposes. Accordingly, the cause of action in trespass failed. He also found:

[Mr Singh’s] work did not fall outside the cleaning and maintenance work for which [he] had [Mr Pilkington’s] consent. I have found that the task was conducted in a workmanlike way. Drainage obviously involves the removal of water  from  the  land. The  greatest  depth  of  the  boundary  drain  is  only marginally off the experts’ ideal. That marginal difference has not been shown to have been material.

The Judge dismissed the cause of action in negligence.

Grounds of appeal

[10]     On appeal, Mr Pilkington contends the District Court Judge’s decision erred in fact and law, because the Judge wrongly excluded the experts’ evidence, which “went to the central issue of whether the drain was too deep”. If the experts’ evidence was accepted, Mr Singh’s work was too deep, and therefore a trespass and/or negligent.

[11]   Mr Pilkington’s counsel on the appeal, Mr Branch, was also critical in submissions of the Judge’s disregard of evidence of reports from Environment Waikato, identifying the damaging effects of deep drains and recommending farmers “Avoid deep drains”: “the watertable should be maintained as high as possible (up to within about 0.5 metres) for any given land use”.

Appeal jurisdiction

[12]     As a general appeal, I only may interfere with Judge Wilson’s decision if I consider it is wrong; I am to arrive at my own assessment of the merits of the case.1 In particular, I am to make my own assessment and decision based on my evaluation of the evidence, giving the District Court’s assessment and decision such weight as I consider appropriate.2

Analysis

[13]     I do not consider Judge Wilson’s decision to be wrong.

—negligence

[14]    The farming experts’ evidence is expressly to establish “best practice” management of the water table, any divergence from which does not  constitute negligence. Notably, Environment Waikato acknowledges some margin even in the object of that management of the water table: “up to within about 0.5m” (emphasis added).

[15]     The engineering experts ignored that margin, in favour of fixing the object at

0.5m. Their evidence is equivocal as to the extent Mr Singh’s work was outside that best practice. If in best practice management of the water table, “the acceptable depth was likely to be 1.2m-1.8m”, and the actual depth was 1.8m-2.2m, then at least some of Mr Singh’s work was at that maximum likely acceptable depth.

[16]     There is no evidence of the extent to which Mr Singh’s work exceeded that maximum likely acceptable depth. The judge rightly described any divergence as “only marginally off the experts’ ideal”. It is not evidence of negligence.

—trespass

[17]     Even if Mr Singh’s entry onto Mr Pilkington’s land was intended meaningfully to be conditioned by Mr Pilkington telling Mr Singh “not to clean the drain too deep”,

1      Austin, Nicholls & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

2      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [35].

neither the experts’ opinions nor the guidance material inform what the two men are to be taken to have understood from that specification. Mr Singh’s evidence was he understood a need to exercise judgement about the depth of the drain required, depending  on  the  nature  of  the  peat  sought  to  be  drained,  not  from  anything

Mr Pilkington said.

[18]     However, I do not think Mr Pilkington’s comment was either intended or taken as a condition of Mr Singh’s entry to the land. Mr Pilkington said his actual instruction was “to clean it to the level it was”: ie, not preconditioning entry with the exercise of any evaluative judgement on Mr Singh’s part. Mr Singh’s evidence was Mr Pilkington did not so much instruct as observe, borne of Mr Pilkington’s knowledge of the depth of drains dug by Mr Singh at another neighbour’s boundary.

[19]     Mr Pilkington consented to Mr Singh’s entry to his land for common boundary drain cleaning and maintenance, which Mr Singh did not exceed. There is no trespass.

Disposition

[20]     The appeal is dismissed.

Costs

[21]     My preliminary view is Mr Singh should be entitled to 2B costs for all steps on the appeal. If that is not accepted by the parties, costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:

(a)       Mr Singh within ten working days of the date of this judgment;

(b)Mr Pilkington within five working days of service of  Mr Singh’s memorandum; and

(c)       Mr Singh strictly in reply within five working days of service of Mr

Pilkington’s memorandum.

—Jagose J