Thomas v Broome HC Auckland CIV 2009-409-000725
[2009] NZHC 2452
•20 November 2009
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV-2009-409-000725
IN THE MATTER OF an appeal pursuant to s 72 of the District
Courts Act 1947 against a decision
pursuant to s 333 of the Property Law Act2007
BETWEEN MURRAY ROBERT THOMAS MARGARET ANNE THOMAS Appellants
ANDCHRISTINE ELLEN BROOME LYNLEY DOREEN BAYNES Respondents
Hearing: 28 October 2009
Appearances: I D Scott for Appellants
C Hlavac & D R Weatherley for Respondents
Judgment: 20 November 2009
JUDGMENT OF HON. JUSTICE FRENCH
Introduction
[1] Mr and Mrs Thomas seek to overturn a decision of the District Court which ordered the removal of 280 pine trees from their Akaroa property.
[2] The order was made under s 333 of the Property Law Act 2007 and followed
an application for the removal of the trees by the Thomas’s neighbours, Ms Broome and Ms Baynes. Ms Broome and Ms Baynes claimed that 69 of the trees near their southern boundary unduly obstruct their view of the Akaroa Harbour and harbour
heads, significantly reducing the value of their property, and that 211 trees near their
THOMAS AND ANOR V BROOME AND ANOR HC CHCH CIV-2009-409-000725 20 November 2009
western boundary shade their property and interfere with access to light, constituting
an undue interference in the enjoyment of their land.
[3] The Judge, who undertook a site inspection, upheld those claims. In applying the provisions of ss 333 and 335, he found inter alia that the trees served no useful purpose on the Thomas property and were of little value.
[4] Ms Broome and Ms Baynes have cross-appealed the terms of the order for removal which require them to bear the costs of the removal.
[5] The appeal and cross-appeal raise the following key issues:
·What is the role of the High Court on an appeal from a decision made under s 333 of the Property Law Act 2007?
·Did the Judge err in failing to consider trees on Ms Broome and Ms Baynes’ own property?
·Did the Judge err in taking into account the provisions of the District Plan that were in force at the time Mr Thomas planted the trees, while failing to have regard to the current plan?
·Did the Judge err in taking into account evidence of an assurance Mr Thomas had given Ms Broome and Ms Baynes about the trees prior to them buying their property?
·Were the Judge’s findings about the shading effects supported by the evidence, and did he:
ƒ misinterpret the shading diagrams;
ƒfail to have regard or proper regard to the fact that Ms Broome and Ms Baynes are able to grow crops during winter?
·Was the Judge sufficiently discriminating in his approach, having regard to the obligation to exercise his discretion conservatively?
· Are the terms of the removal order uncertain?
The relevant statutory provisions
[6] Before turning to consider each of these issues, it is necessary for me to set out the relevant statutory provisions:
333Court may order removal or trimming of trees or removal or alteration of structures
(1)A court may, on an application under section 334, order an owner or occupier of land on which … a tree is growing or standing—
…
(b) to remove or trim the tree.
(2)An order may be made under subsection (1) whether or not the risk, obstruction, or interference that the structure or tree is causing—
(a) constitutes a legal nuisance; and
(b)could be the subject of a proceeding otherwise than under this section.
335Matters court may consider in determining application for order under section 333
(1)In determining an application under section 334, the court may make any order under section 333 that it thinks fit if it is satisfied that—
(a) the order is fair and reasonable; and
(b)the order is necessary to remove, prevent, or prevent the recurrence of—
(i) an actual or potential risk to the applicant's life or health or property, or the life or health or property of any other person lawfully on the applicant's land; or
(ii) an undue obstruction of a view that would otherwise be enjoyed from the applicant's land, if that land may be used for residential purposes under rules in a
relevant proposed or operative district plan, or from any building erected on that land and used for residential purposes; or
(iii) an undue interference with the use of the applicant's land for the purpose of growing any trees or crops; or
(iv) an undue interference with the use or enjoyment of the applicant's land by reason of the fall of leaves, flowers, fruit, or branches, or shade or interference with access to light; or
(v) an undue interference with any drain or gutter on the applicant's land, by reason of its obstruction by fallen leaves, flowers, fruit, or branches, or by the root system of a tree; or
(vi) any other undue interference with the reasonable use or enjoyment of the applicant's land for any purpose for which it may be used under rules in the relevant proposed or operative district plan; and
(c)a refusal to make the order would cause hardship to the applicant or to any other person lawfully on the applicant's land that is greater than the hardship that would be caused to the defendant or any other person by the making of the order.
(2)In determining whether to make an order under section 333, the court must—
(a) have regard to all the relevant circumstances (including
Maori cultural values and, if required, the matters specified in section 336); and
(b) if applicable, take into account the fact that the risk, obstruction, or interference complained of was already in existence when the applicant became the owner or occupier of the land.
(3) Despite subsection (2)(b), an order may be made under section 333
if, in all the circumstances, the court thinks fit.
336 Further considerations relating to trees
(1)A court determining an application under section 334 for an order for the removal or trimming of a tree under section 333 must have regard to the following matters:
(a) the interests of the public in the maintenance of an aesthetically pleasing environment:
(b)the desirability of protecting public reserves containing trees:
(c) the value of the tree as a public amenity:
(d) any historical, cultural, or scientific significance of the tree:
(e) any likely effect of the removal or trimming of the tree on ground stability, the water table, or run-off.
…
The nature of the appeal
[7] The empowering section s 333 provides that a Court “may” on application order the removal of a tree, while s 335 states that in determining an application the Court “may” make any order under s 333 “it thinks fit” if satisfied of a number of listed criteria. Section 335 concludes with the statement that notwithstanding the fact the risk, obstruction or interference complained of was already in existence when the applicant became the owner of the affected land, an order may still be made “if, in all the circumstances, the court thinks fit.”
[8] It was common ground that in light of those statutory provisions an appeal against an order made under s 333 is clearly an appeal against the exercise of a discretion. However, counsel disagreed on the question of whether such appeals have been affected by the decision of the Supreme Court in Austin Nichols & Co Incv Stichting Lodestar [2008] 2 NZLR 141, or whether the principles in May v May (1982) 1 NZFLR 165 (CA) still apply.
[9] In May, the Court of Appeal held that in appeals from decisions involving the exercise of a discretion, an appellant must show that the first instance Judge acted on
a wrong principle, took into account an irrelevant factor, failed to have regard to a relevant factor, or was plainly wrong. It was not for the appellate Court to substitute
its own conclusion for that of the Judge.
[10] Counsel for the appellants in this case, Mr Scott, submitted (at least in his oral submissions) that Austin Nichols had overruled May. This meant I was required,
he said, to conduct my own assessment of the merits, rather than limit my focus to the District Court Judge’s reasoning.
[11] I do not accept that contention. The Supreme Court did not make any reference in its decision to May, and even more importantly indicated at [17] that the principles it was enunciating did not apply to appeals involving the exercise of a discretion. That May has survived Austin Nichols has since been confirmed by the Court of Appeal in Blackstone v Blackstone (2008) 19 PRNZ 40 at [8].
[12] In my view, the correct approach in respect of both the appeal and cross- appeal in this case is that the respective appellants must satisfy me the Judge made
an error of principle, failed to consider a relevant factor, took into account an irrelevant factor, or was plainly wrong.
[13] For completeness I should add that Mr Scott also submitted there was a conflict between May and a later Court of Appeal decision, Alex Harvey Industries v Commissioner of Inland Revenue (2001) 15 PRNZ 361. However, the Court of Appeal in Alex Harvey in fact expressly endorsed May.
[14] I turn now to consider each of the alleged errors in reasoning advanced by the appellants.
Did the Judge err in failing to consider trees on Ms Broome and Ms Baynes’
own property?
[15] The evidence established that there are trees on the property owned by Ms Broome and Ms Baynes, some of which may have the potential to also cast a shadow and/or obstruct views. There are two groups of trees: one group of 150 year old trees on the southeast, and a second group which Ms Broome and Ms Baynes have planted themselves beside a pond.
[16] There is no mention of this evidence in the Judge’s decision, and Mr Scott contends it was a relevant matter that should have been taken into account when assessing “undue hardship”, and fairness and reasonableness under s 335.
[17] The difficulty with that submission, however, is that there was also evidence:
i)That most of the trees situated on Ms Broome and Ms Baynes’ own property were further west, or southwest, of the household than the trees on the Thomas property. The latter is situated more to the north, and therefore more likely to cause shade.
ii)Most of the Broome/Bayne trees are deciduous and therefore do not cast a shadow in winter.
iii)Ms Broome and Ms Baynes have control over the trees on their own property and will not allow them to grow to a height where they will cast shade.
iv)The group of old, established trees has never caused a problem, and never will because they are grown to full maturity.
[18] In light of that evidence, the effect of trees located on Ms Broome and Ms
Baynes’ own property was not something which in my view the Judge was required
to address, or which should have been accorded weight. Mr Scott went so far as to suggest that the fact much of Ms Broome and Ms Baynes’s property was covered in bush was in itself a relevant factor, regardless of the effect of that bush. However, I consider that to be too extreme a position, and not one militated by the statutory wording.
Did the Judge err in taking into account the provisions of the District Plan that are no longer in force?
[19] In assessing whether a removal order was fair and reasonable, the Judge made a reference to the provisions of the District Plan that were in force at the time Mr Thomas planted the trees in question. The reference was made in the following context:
[30] … at the time he planted the trees, the local authority’s Transitional Plan required Mr Thomas not to plant within 100 metres of The Gables dwelling and not to plant them in a position where, when mature, they would cast a shadow on The Gables property. Many of the trees that are the subject of the present proceedings lie within 100 metres of The Gables residence and all of them, when mature, will cast a shadow on The Gables property. In determining what is fair and reasonable it is a relevant consideration that, had Mr Thomas observed the provisions of the Transitional Plan, these proceedings would not be necessary.
[20] Mr Scott conceded the legal position that existed at the time Mr Thomas planted his trees was a relevant factor going to fairness and reasonableness. However, in his submission, the Judge should have balanced that factor by reference
to the current District Plan which does allow the trees to be planted as of right within
100 metres. The Judge’s failure to acknowledge the current plan meant disproportionate weight was placed on the old plan.
[21] I disagree with that analysis. As Mr Hlavac pointed out, it is a given that the trees in issue are there lawfully. Otherwise, his clients would not have needed to invoke the s 333 jurisdiction. The very purpose of the s 333 order is to prevent someone doing what they would otherwise be lawfully entitled to do.
Did the Judge err in taking into account evidence of an assurance Mr Thomas had given Ms Broome and Ms Baynes about the trees prior to them buying their property?
[22] Ms Broome and Ms Baynes gave evidence that before purchasing their property in 1998 they saw the trees, which at that time were only young, having been planted four years earlier. Ms Broome and Ms Baynes expressed concern about the potential effects of the trees but received assurances from Mr Thomas that he would not allow the trees to block their view or shade their property. The Judge accepted that evidence. He stated:
[14] It is the case that these trees in seedling form were present when Ms Broome and Ms Baynes purchased The Gables. The potential for obstruction of view was obvious. But this is not a case of landowners accepting at the time of purchase the risk of obstruction of view and then complaining about it later when it happens. Before they agreed to purchase the property Ms Broome and Ms Baynes discussed with Mr Thomas their concerns about the proximity of these trees to their boundary and accepted his assurance that he would never allow them to obstruct their view.
Notwithstanding that he did clear fell a window to the harbour and heads that might be enjoyed from the south west portion of the property, Mr Thomas effectively reneged on his assurance.
…
[29] The fact that the trees were present in seedling form when Ms Broome and Ms Baynes purchased The Gables is of little moment. Before the purchase Mr Thomas gave them his assurance that he would not allow the trees to shade their property and they completed the purchase relying on that assurance. It is only fair and reasonable that Mr Thomas be held to it.
[23] Mr Scott submits the assurance was not a binding agreement, but the Judge effectively gave it contractual status and so erred in law.
[24] I do not accept that argument. As is apparent from the passages I have quoted, the Judge simply took the assurance into account as one of the matters bearing on fairness and reasonableness. In my view, he was right to do so. It was a highly relevant factor, and one on which he was entitled to place significant weight.
Were the Judge’s findings about the shading effects supported by the evidence?
[25] In considering the shading effects of the trees, the Judge referred to expert evidence of shading projections for the next 15 years, and then went on to say:
[19] It is unnecessary to rehearse the results of the simulations, they speak for themselves. As one would expect, the most severe impact is in winter. At 3.30 in the afternoon the trees are already casting their shadow over a substantial part of The Gables property including the vegetable gardens. In five years time the house will be shaded by 3.30pm. In ten years time the entire property save for the horse paddocks will be entirely cast in shade by 3:30pm.
[20] Were it not for the trees however, The Gables would still be in shadow for a substantial part of a winter’s day because of surrounding hills. It is the difference that the trees make that is the relevant consideration.
[21] They make no difference to the winter sunrise because the sun appears from behind the hills unimpeded by the Thomas pine trees. Ms Broome and Ms Baynes tell me that, in winter, the morning sun appears from behind the hill at 9.30am. This is supported to a degree by the winter shadow simulation for 10:30am that shows the shade of the hills receding to the top third of The Gables property.
[22] However, the trees to the west do make a significant difference to when the afternoon sun disappears. The shadow simulations show that, in five years time, the trees to the west will completely shade all of The Gables
buildings and gardens by 3.30 pm. In 15 years time that effect will commence at 12 noon giving The Gables homestead and gardens barely 2.5 hours sunshine. Ms Pollard was unable to tell me what time the sun would disappear behind the hills to the northwest in winter but Ms Baynes estimated that The Gables would lose the sun one hour early because of the hills. In mid-winter the sun sets at 5 pm so, but for the trees, The Gables would lose the sun at 4 pm yielding winter sunshine for some 6.5 hours (9.30 am to 4 pm). On this analysis the trees account for the loss of four hours winter sunshine. Making due allowance for the inaccuracy of these figures based upon Ms Baynes’ estimate of when the winter sun would disappear behind the ridge, the loss of sunshine hours attributable to the trees is nonetheless substantial.
[23] But does this constitute an undue interference with the applicants’
enjoyment of their land?
[24] Unlike many gardeners, Ms Broome and Ms Baynes grow vegetables in their garden throughout the year. While they themselves might winter overseas, the garden grows on tended by Ms Baynes’ sister. The issue is not one of temperature but one of light. It is trite to say that growing crops need light and I accept that the loss of precious hours of sunshine during winter months compromises The Gables garden.
[25] But it is not just the vegetable garden that suffers from shading. The enjoyment of the whole property suffers from the shadow cast by the trees to the west and it can only get worse:
• In March in 15years time, shade will encroach well into The
Gables property by 5pm
• In June in five years time, all of the buildings and most of the gardens will be in shade by 3.30pm.
• In September in 10 years time, practically all of the property will be in shade by 5pm
• Only the summer months will remain relatively shade free.
[26] This property was purchased for the purpose of converting it to a self-sufficient homestay. In the past 11 years Ms Broome and Ms Baynes have expended considerable effort and money restoring The Gables to an attractive centre for their business and a delightful place to live. The shading effect of these trees constitutes an excessive interference with their enjoyment of their land and, in that sense, the interference is “undue”.
[26] Mr Scott points out that, contrary to what the Judge says, the shading diagrams do not in fact show the trees will “completely” shade all of the buildings. Nor do they show “all of the garden will be shaded”.
[27] I agree the Judge does appear to have overstated the shading effects in using the word “completely”, at least in relation to the buildings and the garden other than the vegetable garden.
[28] What the diagrams do show, however, is that the buildings and garden will be significantly shadowed, with the vegetable garden completely shadowed.
[29] In those circumstances, I am not satisfied the Judge’s error is of such proportion as would warrant appellate intervention, particularly given that the major focus of Ms Broome and Ms Baynes’ case was not so much about loss of sunlight to their house as enjoyment of the property generally, and in particular their ability to use the garden and grow crops in winter.
[30] A further argument raised by Mr Scott was that the Judge had failed to have regard, or sufficient regard, to the evidence that the respondents are in fact able to grow a significant number of crops in winter. However, the submission overlooks the point that the issue of shading was not so much about the current situation, but the projection. While the current shading may permit Ms Broome and Ms Baynes to grow some crops now in winter, the evidence was that in five years’ time it will be worse, and in 15 years’ time worse still.
Did the Judge err in failing to take into account the fact Ms Broome and Ms
Baynes do not live at their property during winter?
[31] Mr Scott submitted the focus of Ms Broome and Ms Baynes’ case was the problem of shade caused during the winter months. Yet Ms Broome and Ms Baynes
do not live at the property during winter, something the Judge should have taken into account, particularly in finding any hardship was “undue” hardship.
[32] However there was evidence that the very reason Ms Broome and Ms Baynes
do not live there in the winter is because they find it such a depressing place, due to the trees. Mr Scott attempted to refute this by pointing out Ms Broome and Ms Baynes have absented themselves in winter from the beginning, even when the trees were only young. However my reading of the evidence is that the respondents’
absences have increased in length over the years, and that because of the trees they have made a conscious effort to create work for themselves overseas. Further, there was also evidence that even although Ms Broome and Ms Baynes are absent during winter, they arrange for the garden to be tended and crops grown. In other words the property is used during the winter.
Did the Judge fail to exercise his discretion conservatively?
[33] It is well established following Courteney v Garstang (2007) 9 NZCPR 222
and Warbrick v Ferguson (2005) 5 NZCPR 520 that the discretion conferred by s
333 is a discretion to be exercised conservatively. The applicant is required to show “undue” hardship and that removal is not only fair and reasonable, but also necessary.
[34] Mr Scott argues the Judge breached this obligation by ordering the wholesale removal of all the trees at issue. Instead, the Judge should have adopted what Mr Scott described as a more discriminating approach and considered whether some of the trees could have been allowed to remain.
[35] In support of this submission as it relates to shading effects, Mr Scott contended that by drawing lines down the shading diagrams it was possible to show that not all of the trees ordered to be removed are in fact responsible for the shading, both current and future.
[36] However, Mr Scott’s analysis of the diagrams was never put to the expert in cross-examination. It suffers from the further problem that it relies on an untested assumption about the boundaries, as well as an assumption about the location of the trees mentioned in one of the affidavits.
[37] Moreover, it is not in fact correct to say the Judge failed to consider the possibility of removing only some of the trees. In relation to the question of obstructing the view, the Judge stated:
[17] Finally, under the heading of what is fair and reasonable, I have considered whether the necessity to remove trees might be confined to about
half their number that obstruct the view from just in front of The Gables house but one does not have to progress very far into the garden, indeed only to the edge of the first terrace bordered by roses, for the remaining trees to impede the harbour view. All 69 trees within the area etched in green on the aerial plan annexed to the application are to go.
[38] As regards shading, the Judge expressly found at [30] that all of the trees when mature will cast a shadow on Ms Broome and Ms Baynes’s property. I consider there was sufficient evidence on which he could come to that finding, bearing in mind also that the Judge had the benefit of a site visit.
Conclusion on appeal
[39] Mr Scott said all that could possibly be said on behalf of Mr and Mrs Thomas. However, I have been unable to detect any error in the Judge’s approach such as would warrant appellate intervention. The decision the Judge made was a closely reasoned one, his analysis being structured in terms of the relevant sections and the statutory criteria. It was a decision that was clearly open to him, and one which I too would have reached on the same material.
[40] The appeal is accordingly dismissed and the order for removal confirmed.
Cross-appeal: The further orders made on 12 June 2009
[41] The relevant parts of sections 337 and 338 provide:
337 Court may impose conditions in making order under section 333
(1)In making an order under section 333, the court may impose any conditions it thinks fit, including conditions for either or both of the following:
(a) requiring the defendant to make good, or pay compensation
to the applicant for, any damage caused to the land of the applicant or any property on that land, in the course of removing or trimming any tree ordered to be removed or trimmed, or the doing of any other work required to be done to eliminate or reduce the risk, obstruction, or interference complained of:
(b)requiring the applicant or the defendant, or both of them, to give security for any expenses or damage.
(2) The reasonable cost of any work necessary to give effect to an order made under section 333 must be met by the applicant, unless the court—
(a)is satisfied, having regard to the conduct of the defendant, that it is just and equitable to require the defendant to pay the whole or any specified share of the cost of the work; and
(b) gives a direction as a condition of the order accordingly.
…
338 Completion of work required by order under section 333
(1) The work necessary to carry out an order made under section 333
must be completed within—
(a) 20 working days after the date of the making of the order; or
(b)a later time specified in the order or subsequently allowed by the court for the completion of the work.
…
[42] At the end of his decision granting the removal order, the Judge invited the parties to file submissions regarding the timetable for removing the trees, who should bear the cost of removal, as well as any other appropriate conditions.
[43] After submissions had been received the Judge issued a second judgment, on
12 June 2009, making the following further orders:
• The respondents are to remove all of the trees by 24 December 2009.
• They are to be removed completely including removal of stumps.
• They are to be removed at the applicants’ expense.
• The respondents are to make good any damage caused to the applicants’
property in the course of removing the trees.
• The respondents will pay the applicants’ costs in these proceedings in the sum of $14,850.00 plus disbursements $1,371.44, and witnesses expenses $13,557.85.
[44] In their cross-appeal, Ms Broome and Ms Baynes take issue with two of the further orders, namely the order that the trees are to be removed completely, including removal of stumps, and the order making them bear the cost of removal.
[45] Section 337(2) provides that the cost of removal is to be borne by the applicants (ie Ms Broome and Ms Baynes) unless the Court is satisfied, having regard to the conduct of the Thomases, that it would be just and equitable to require the Thomases to pay the whole of the cost or to contribute to it.
[46] In his 12 June decision, the Judge correctly directed himself in terms of this presumption and gave reasons why he considered the presumption was not displaced.
He also gave reasons why the stumps should be removed.
[3] Given that the respondents should be able to enjoy the use of their land as pasture after the trees have been felled, it is appropriate to require the removal of the trees to include removal of the stumps. However, any further cost incurred in reinstating the land to pasture can reasonably be borne by the respondents who will have the benefit of the limited proceeds of sale of the wood.
At whose cost?
[4] The cost of removal is to be borne by the applicants unless I am satisfied, having regard to the conduct of the respondents, that it is just and equitable to require the respondents to pay the whole or any share of that cost. This proceeding is the culmination of a dispute between neighbours that has simmered for many years. I do not propose to rehearse allegations and counter allegations of unreasonable behaviour. Suffice it to say that I do not consider it profitable or appropriate to embark upon an examination of the conduct of the parties with a view to upsetting the presumption as to who pays. The presumption recognises the fact that the applicants are enjoying the benefit of the removal and, in the present case, the value of their property, quite apart from its enjoyment will be considerably enhanced. It is just and equitable that they pay for the cost of that benefit.
[47] Mr Hlavac responsibly acknowledged that he faced an uphill battle in seeking
to persuade me to overturn that decision on May principles. However he explained that the primary motivation in bringing the cross-appeal was uncertainty regarding the meaning and scope of the further orders. He identified the following uncertainty:
i)In ordering the removal of the stumps, did the Judge mean below ground level?
ii)If the Judge did mean below ground level, what method was contemplated – grinding down or literally uprooting the trees?
iii)What is to happen to the trees after they have been felled? Are they to be removed or to remain on site – and if the former, is that a cost to be borne by Ms Broome and Ms Baynes?
iv)Who has control over the removal, including choice of method? If the Judge’s intention was that Mr and Mrs Thomas are to be in charge, with Ms Broome and Ms Baynes having to bear the cost, then Ms Broome and Ms Baynes would be opposed to that as there are likely to be conflicting interests, their concern being to secure the most cost-effective means of removal.
[48] Mr Hlavac submitted there was such a degree of uncertainty that, although
his clients were anxious for finality, he felt there was no choice but for me to refer the matter back to the District Court.
[49] For his part, Mr Scott said he understood removal meant removal below ground level (because of the Judge’s reference to the land being able to be used as pasture). However, Mr Scott agreed there were aspects that needed clarification and that the most appropriate course of action was for me to refer the matter back.
[50] Regrettably, I too have come to the same conclusion. The relationship between the parties is such it would be unrealistic to expect them to be able to resolve these matters themselves, and certainly not in time for the work to be done this summer.
[51] I therefore allow the cross-appeal, but only for the purpose of requesting the
Judge to clarify the terms of the orders made on 12 June 2009 relating to the removal
of the trees. Counsel suggested they could provide the Judge with details of the various alternative removal methods and costing. However, in my view, it should be
for the Judge to decide on the further information he requires and the process he wants to adopt, having perhaps first convened a conference call with counsel. The Judge will also of course need to revise the timetable for removal as a result of the delay caused by this appeal.
Outcome of hearing
[52] The appeal is dismissed and the order for removal confirmed.
[53] The cross-appeal is allowed, but only for the purpose of directing the Judge
to reconsider the terms of the orders made on 12 June 2009 in order to resolve the uncertainty identified at [47] of this judgment.
[54] As regards costs of the appeal, my provisional view is that Mr and Mrs
Thomas should pay costs on the appeal on a 2B basis, with no costs being awarded
in respect of the cross-appeal. It is a provisional view only, because I have not had the benefit of submissions from counsel. In the event the parties cannot agree and require me to make an award, I direct the appellants to file submissions first, with the respondents filing submissions within 10 working days thereafter.
Solicitors:
Saunders & Co, ChristchurchYoung Hunter, Christchurch
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