Tiller v Auckland Council - [2024] NZHC 1967

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-800

[2024] NZHC 1967

BETWEEN
BRENT TILLER

Plaintiff

AND

AUCKLAND COUNCIL

Defendant

Hearing: 4 to 7 June 2024

Appearances:

A Gilchrist and R Kaur for the Plaintiff

S Quinn and E Manohar for the Defendant

Judgment:

18 July 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 18 July 2024 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel: DLA Piper, Auckland A Gilchrist, Auckland R Kaur, Auckland

TILLER v AUCKLAND COUNCIL [2024] NZHC 1967 [18 July 2024]

[1] The plaintiff, Brett Tiller, has filed a claim seeking over $18 million plus interest and costs from the defendant, Auckland Council (Council). That sum was reduced in closing submissions to around $10.3 million together with interest and costs. That is still a substantial sum.

[2] Mr Tiller says the Council needs to pay him that amount because it has trespassed on his property by constructing an open watercourse (watercourse) on his land and the Council is using the watercourse as part of its stormwater system causing catchment stormwater to flow through his property when it would not do so naturally.

[3] As a further part of his claim Mr Tiller says the Council has also committed an act of trespass by not upsizing the Lyons Avenue culvert (culvert) which is 80 metres downstream (to the east) from his property. He says drainage and stormwater back up at the culvert and flow back onto his property.

[4] Mr Tiller also says he has a claim in contract against the Council because it has breached six alleged “undertakings” that it would upgrade the culvert by increasing its size.

[5] Two further causes of action in nuisance and negligence were abandoned in closing submissions.1

[6] The Council opposes the claim. It says the claim for trespass fails because it is unsubstantiated by evidence. The Council says it has not acted (or omitted to act) in any manner which could properly attract liability under either of the two pleaded causes of action. The Council says there is a fundamental issue of causation. It says any interference, loss or damage from the presence of the watercourse, stormwater or flooding of the property, was not caused by any of the alleged actions or inaction of the Council.

[7] The Council says Mr Tiller’s property is inherently subject to inundation. A consent notice to that effect was recorded on the title before Mr Tiller settled the

1Mr Tiller abandoned those two causes of action on the basis of counsel’s assessment that they were time barred.

purchase of the property and the watercourse was present and able to be seen at the time of inspection prior to purchase. The property was, accordingly, known to be subject to inundation from that watercourse. The design and construction of the dwelling that occurred subsequently responded to that risk.

[8] The Council also raises issues…

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: [2024] NZHC 1967
Decision Date: 18 July 2024

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, has dismissed a claim by Brett Tiller against the Auckland Council for trespass and breach of undertakings. Tiller alleged that the Council's construction and use of an open watercourse on his property and failure to upsize a culvert caused his land to flood, amounting to trespass. He also claimed that the Council breached six alleged undertakings to upgrade the culvert, amounting to a breach of contract. The Council denied the claims, arguing that any flooding was due to natural causes and the property's inherent flood risk, not the Council's actions. The court found that Tiller had not established the necessary elements of trespass, including unjustified direct interference with his land. The court also determined that the claim for breach of undertakings was statute-barred and that the statements in question did not constitute binding contractual terms. The court concluded that Tiller was not entitled to the relief sought and dismissed the case. Costs are reserved pending agreement between the parties or determination by the court.

Orders