Semple v Wilson - [2018] NZHC 1703

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-176

[2018] NZHC 1703

BETWEEN
GLEN SEMPLE AND HEATHER SEMPLE

Plaintiffs

AND

BRUCE GAVIN WILSON AND AMANDA JANE WILSON

Defendants

Hearing: On the papers

Counsel:

A G Rowe and ENH Harris for the Plaintiffs

M Casey QC and J Armstrong for the Defendants

Judgment:

11 July 2018

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 11 July 2018 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Wells & Co, Auckland
Armstrong Murray, Auckland

Counsel: M Casey QC, Auckland

SEMPLE v WILSON [2018] NZHC 1703 [11 July 2018]

Introduction – the substantive proceeding

[1] In my judgment of 9 May 2018,1 I summarised the plaintiffs’ (the Semples) claims against the defendants (the Wilsons) as follows:

[2] The Semples claim that branches and roots from trees growing on the Wilsons’ property close to the boundary between the two properties constitute an actionable nuisance. They say they are the cause of physical damage to their property, they interfere with their use of their land and they are the cause of a significant loss of enjoyment of their land.

[3] In their first cause of action, the Semples seek a declaration that the trees be removed by the Wilsons at the Wilsons’ expense; a declaration that the roots that encroach onto their property be removed at the Wilsons’ expense; special damages; general damages and an inquiry by the Court into the full extent of the damage to their property following destructive testing.

[4] In the second cause of action, the Semples seek a mandatory injunction restraining the Wilsons from continuing or repeating the nuisances and a mandatory injunction restraining the Wilsons from permitting encroachment by the trees.

[2] I refused a declaration that the trees be removed, but made an order by way of a mandatory injunction that the Wilsons were to cut back to the boundary, and to keep cut back to the boundary, the branches of the trees which had been identified as the boundary trees.

[3] The Semples had sought special damages in the sum of $174,747, together with general damages of $30,000 for each of them for stress, anxiety, disruption and inconvenience.

[4] I awarded total damages of only $21,462, made up of $11,462 of special damages and $10,000 general damages for disruption and inconvenience, i.e. $5,000 each for Mr Semple and Mrs Semple.

[5] I also ordered that the Wilsons were to contribute one-third of the cost of removing and replacing only slab 1 in the concrete slab driveway (the driveway was made up of 23 slabs), as well as one-third of the cost of the removal of the tree root under slab 1 and the installation of a root barrier beside slab 1.

1 Semple v Wilson [2018] NZHC 992.

Claim for costs

[6] In my judgment, I referred to the fact that the Semples…

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 Semple v Wilson

Details

AGLC: Semple v Wilson [2018] NZHC 1703
Case: [2018] NZHC 1703
Decision Date: 11 July 2018

CaseChat Overview and Summary

The case of Semple v Wilson involved a dispute between the plaintiffs, Glen and Heather Semple, and the defendants, Bruce and Amanda Wilson, over the nuisance caused by branches and roots from trees growing on the Wilsons' property near the boundary with the Semples' property. The Semples sought a declaration for the removal of the trees, special and general damages, and an injunction against the nuisance. The court granted a mandatory injunction requiring the Wilsons to cut back and maintain the tree branches to the boundary but denied the removal of the trees. The court awarded damages of $21,462, including $11,462 in special damages and $10,000 in general damages. The court also ordered the Wilsons to contribute to the cost of repairing a damaged driveway slab. The Semples subsequently sought costs, claiming $64,315.85 under the High Court Rules and $45,554.35 under the District Court Rules 2014. They offered to settle for $22,777.18. The Wilsons argued that costs should lie where they fell or be capped at $10,000, considering the Semples' partial success and the excessive nature of their claims. The court decided that costs should be assessed under the High Court Rules, not the District Court Rules, as the proceedings were properly filed in the High Court due to the claimed damages. The court found that the Semples succeeded overall but to a limited extent, warranting an award of some costs. It reduced the claimed costs by 60% due to the unsuccessful issues and further reduced the costs by disallowing expert witness fees and reducing the hearing fee by 60%. The court concluded that the Semples were entitled to costs of $14,762.60 and disbursements of $8,180.00, totaling $22,942.60.

Orders