Wilson v Davis HC Rotorua CIV 2006-463-000921

[2007] NZHC 1834

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2006-463-000921

BETWEEN  GLENYS MARION WILSON AND DAVID ANDREW WILSON Appellants

AND  WILLIAM LESLIE DAVIS AND BARBARA ANN DAVIS Respondents

Hearing:         1 June 2007

Appearances: PSJ Withnall for Appellants

J H & MJL Olphert for Respondents

Judgment:      12 June 2007

JUDGMENT OF FOGARTY J

[1]      The appellants appeal against a judgment of the District Court at Rotorua which found that they had breached an interim injunction granted ex parte by the Court on 11 May 2006.  A fine of $2,000 was imposed, half of which was ordered to be paid to the respondents and the appellants were also ordered to pay the respondents’ solicitor and client costs.

[2]      The appellants and the respondents are neighbours.  Part of their shared fence was a ponga fence.

[3]      The appellants are rebuilding a home on their section.  In March 2006 their neighbours, the respondents, became aware that they intended to remove all or part of the ponga fence.  On 27 March the respondents’ solicitors wrote to the appellants warning them that should they unilaterally remove or harm the existing hedge and

ponga fence the respondents would take further action against them.

WILSON V DAVIS HC ROT CIV 2006-463-000921  12 June 2007

[4]      On or about 1 May, 15-20 metres of the ponga fence was demolished.  On 3

May the respondents’ solicitors wrote to the appellants noting that they had taken unilateral action, saying that they did not have authority to do so, advising that their clients would be applying to the Court for all matters to be rectified and including:

Please note that this is now notice to you that nothing further should be done by you until this matter is heard by the appropriate Court.

[5]      On 11 May the District Court ordered ex parte:

There  will  be  an  Interim  Injunction  restraining  the  Defendants  from removing the remaining part of a  shared ponga  fence which is  property shared by the Plaintiffs and Defendants.

[6]      On the day the injunction was ordered there remained a length of untouched ponga fence and a disputed number of ponga stumps.  Most of the ponga stumps had been removed.  The relevant finding of fact by the District Court is as follows:

[6]       After carefully considering the affidavits filed in this matter and the viva voce evidence given in Court by Mr Davis and Mr Wilson, I am in no doubt that as at 11/12 May 2006, some 15 to 20 metres of the ponga fence had initially been sawn off with the chainsaw reasonably close to the ground and that had been followed up by the defendant trustees and/or contractors chopping out the stumps of all but six of the sawn-off ponga.   It is the removal of the remaining six sworn-off [sic] ponga that is at the heart of the present application before the Court.  The six ponga stumps to which I refer appear, from the photographs, to range in height above the ground between

60 and 90 centimetres on the plaintiffs’ side of the boundary.  However, on

the defendant’s side of the boundary, where the ground is built up, they have been cut off is [sic] roughly at ground level.  It is plain from the photographs that these ponga stumps along with the remainder of the ponga fence had formerly been living ponga in a fashion common but unique to this region. The six ponga stumps  were in a row,  touching  each other,  having been originally planted that way in order to form a solid fence.

[7]       The plaintiff, Mr Davis, says that five of these ponga stumps were removed on 18 May 2006 and the sixth ponga stump was removed on the weekend of 21/22 July 2006.   It is not denied by the defendant that the stumps were removed by it.  The defendant however argues that the removal of the ponga stumps does not constitute a breach of the injunction.

[7]      Following the grant of the interim injunction the appellants did not touch the unaffected portion of the ponga fence but did remove at least two of the ponga stumps.    On appeal Mr  Withnall challenged  the  Judge’s  finding  that  six  ponga stumps had been removed.   The main position taken at the hearing was that the

ponga stumps were no longer a fence or part of a fence so that their removal did not constitute:

… removing the remaining part of a shared ponga fence.

[8]      The District Court Judge rejected this argument emphatically:

[11]      Conscious as I am that the wording of the order of the injunction must be clear and unambiguous and that the criminal standard of proof is applicable in this case, I find that the defendants plainly breached the injunction.   To assert in effect that the ponga stumps which were part of the fence one day suddenly changed character when they were cut off at 60 to 90 centimetres above the plaintiffs’ ground level, offends logic and common sense.  The plaintiffs had made it perfectly clear to the defendant trustees in the solicitor’s letters of 27 March and 3 May exactly what they did not want the defendant trustees to do.  Against this background and on the plain words of the order, the defendant trustees cannot have been in doubt.  Accordingly I find that the defendants have been in contempt of the order of this Court of

11 May 2006.

[9]      On appeal there was some dispute as to the Judge’s finding of fact that the stumps “were cut off at 60-90 centimetres above the plaintiffs’ ground level”, at least in respect of the stumps remaining prior to 11 May.   However, it was common ground that the stumps remaining prior to 11 May were immediately abutting the unaffected balance of the ponga fence.   These stumps extended an indeterminate length, probably less than two metres.   That left something in the order of 13-18 metres of completely cleared land where the stumps had been removed.

[10]     Mr Withnall,  for the appellants, challenged the use by the District  Court Judge of the correspondence of 27 March and 3 May in the reasoning and finding that the appellants plainly breached the injunction.   Mr Olphert  did not  seek to defend this reasoning, and wisely so.

[11]     It is settled law that any conduct constituting contempt must be a breach of an order of the Court which is unambiguous.  It is because of this basic principle that care is always taken by a Court to ensure that the terms of decrees or orders are expressed in clear and unambiguous language.   In Redland Ltd Bricks v Morris [1970] AC 652 at 666 Lord Upjohn said that the defendant is entitled to know what he is required to do,

… and this means not as a matter of law but as a matter of fact.

[12]     The reason for the rule is that the remedies of contempt are penal.  They can range from imprisonment down to a fine, which is usually the minimum.   Such penalties cannot be imposed justly if the terms of the Court order raise an ambiguity relevant to the conduct of the person against whom they purport to bind.

[13]     The law, and reason behind it, would be undermined if a person subject to an order had to read the order in the context of prior correspondence and/or evidence that had been given at the hearing.  This is not to say that orders cannot be read in context.   But that context has to be the general context of the case, not particular language used in position taking by the parties prior to the order of the Court.

[14]     Accordingly,  Mr  Olphert  recognised  that  the  finding  that  contempt  was proved and the resulting sanctions could only stand provided that the order was unambiguous.  He argued it was unambiguous.  He submitted that a ponga fence is a “living structure”.  If half a ponga or even three-quarters of the plant is pruned or cut down, the ponga is still alive and will continue to grow and act as a fence.  Compare this to a shrubbery fence for example.  The shrub fence is cut down to three-quarters its original size, the fence has not been destroyed;  it will continue to grow and to remove the remaining part of the shrub would be viewed as destruction.  Therefore, by saying the six cut pongas no longer were part of the fence is untenable.

[15]     I do not find this reasoning persuasive.   In no way can the remaining six stumps be compared to a fence cut down to three-quarters of its original size as appears from the  photos, and particularly the photo relied upon by Mr Olphert.  In practical terms the fence had been destroyed for the whole of the 15-20 metres that had been cut including the one to two metres of stumps not yet removed abutting the rest of the fence.  In no practical way did the remaining stumps operate as a “fence” considered in an urban setting.  Of course, had the stumps been left they may well have continued to grow, but it would have taken a long time, even in Rotorua, for them to come anywhere near the height which they previously had, which was well over two metres, and of considerable width.

[16]     There is no doubt, from the action taken by the respondents to enforce the order that the respondents believed that the terms of the order included protecting the remaining stumps.  They believed, effectively, that the order amounted to requiring “that nothing further should be done”.

[17]     However, the terms of the order are equally open to a natural interpretation that the remaining part of the shared ponga fence was that remaining part of the effective ponga  fence,  the untouched ponga fence.    That  was the  meaning  that Mr Wilson took as is apparent from his affidavit in opposition to contempt where he said at the outset:

Before dealing in more detail with Mr Davis’ affidavit of 2nd August 2006, I wish to make it very clear that at no time since I was served with the sealed order for interim injunction on 12 May 2006 have my wife or I removed any part  of  the  remaining  pongas  standing  between  our  property  and  the plaintiffs’ property.

[18]     I am satisfied, independently of the evidence of Mr Wilson, that objectively considering the terms of the interim injunction, in the general context of the case, the phrase “the remaining part of a shared ponga fence” can be understood as referring to the remaining untouched ponga fence.  Indeed, while the term is ambiguous, that latter interpretation is the more natural meaning in context.  I am reinforced in that conclusion by the fact that the Judge used the earlier correspondence of 27 March and 3 May to justify finding otherwise.

[19]     Given these findings as to meaning, it is plain that the finding of contempt cannot stand and must be set aside.    As a consequence, the fine and orders as to costs are also set aside.  The appeal is allowed.  The appellants are entitled to costs to be calculated on a 2B basis.

Solicitors:

S Dyhrberg, Wellington, for Appellants (Counsel:  PSJ Withnall) Olphert Sandford, Rotorua, for Respondents