Young v Attorney-General - [2022] NZCA 391

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA200/2021
[2022] NZCA 391

BETWEEN	STEVEN RICHARD YOUNG Appellant
AND	THE ATTORNEY-GENERAL Respondent

Hearing:	12 April 2022 (further submissions received 3 May 2022)
Court:	Kós P, Cooper and Dobson JJ
Counsel:	A R B Barker QC and J Moss for Appellant K G Stephen and H T N Fong for Respondent
Judgment:	23 August 2022 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to file an amended notice of appeal out of time to appeal the costs judgment [2021] NZHC 1359, within the extant appeal, is granted.
BThe appeal is dismissed.
CThe appellant must pay costs to the respondent for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Mr Young’s land lies beneath cliffs compromised by the 2010/11 Canterbury earthquakes sequence. The cliffs lie across the boundaries between Mr Young’s land and the clifftop properties above. The earthquakes caused the cliffs to fail. Rocks fell across Mr Young’s property. His wife narrowly avoided death.
Following the earthquakes, the neighbouring properties on the cliffs were red zoned under the Canterbury Earthquake Recovery Act 2011. They were acquired by the Crown between 2012 and 2015. Continued instability in the cliffs means Mr Young’s land is unsafe. It, too, was red zoned. The Crown made a number of offers to buy Mr Young’s land, all of which he rejected.
Instead, in 2017 Mr Young brought an action against the Crown in trespass and nuisance. He claimed the Crown was obliged to remove the rockfall from the 2010/11 earthquakes sequence and remediate the risk of further rockfall and/or cliff collapse on the cliffs so that he may return to, reoccupy and restore his property. Alternatively, he sought an award of damages reflecting the value of the property he lost.
Dunningham J dismissed that claim.[1] Mr Young appeals. He seeks also to challenge a separate costs decision in which the Judge awarded the Crown scale costs of $69,448 and disbursements of $259,645 — these mostly being for the costs of expert witnesses in what had been a five-day trial.[2]

Background

[1]Young v Attorney-General [2021] NZHC 463 [Judgment appealed].

[2]Young v Attorney-General [2021] NZHC 1359 [Costs judgment].

We draw here on the judgment below. For over 40 years Mr Young has owned the land at 124 Main Road, Redcliffs in Christchurch. Mr Young has devoted great effort to developing and landscaping the land, which extends to about two hectares. It now comprises an enclave of five houses and appurtenant gardens. The original homestead — House 1 — was built in 1901. At the rear of the property, and enclosing it in a sweeping curve, are the cliffs that give the suburb its name. At the top of the cliffs were the 13 properties acquired by the Crown after the 2010/11 earthquakes sequence, between 2012 and 2015, via red zone offers made under…

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 Young v Attorney-General

Details

AGLC: Young v Attorney-General [2022] NZCA 391
Case: [2022] NZCA 391
Decision Date: 23 August 2022 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Steven Richard Young against the Attorney-General regarding the Crown's liability for rockfall from cliffs above Young's property, which was compromised by the 2010/11 Canterbury earthquakes. Young sought to hold the Crown liable for the nuisance caused by the rockfall and argued that the Crown's hybrid offer to purchase his property did not adequately compensate him for his loss. The High Court had dismissed Young's claim, and he now appealed both the liability decision and the costs decision.

The primary issue before the Court of Appeal was whether the Judge erred in assessing the extent of the Crown's duty to abate the nuisance. The Court of Appeal held that the Judge was correct in her assessment, as the Crown's hybrid offer made in 2015 and renewed in 2017 adequately met its measured duty to abate the nuisance. The Court of Appeal found that the Judge had considered the shared responsibility for the nuisance, practicality, and cost when determining the extent of the Crown's duty.

Another issue before the Court of Appeal was whether the Judge erred in ordering costs against Young. The Court of Appeal held that the Judge was correct in ordering costs against Young, as the Crown was the successful party in the case. Young's claim for damages failed, and he had rejected the Crown's offer to purchase his property. The Court of Appeal granted Young leave to amend the notice of appeal to include the costs judgment, and the appeal against the costs judgment was incorporated into the extant appeal.

In conclusion, the Court of Appeal dismissed the appeal and held that the Crown's hybrid offer met its measured duty to abate the nuisance. Young was ordered to pay costs to the respondent for a standard appeal on a band A basis and usual disbursements.

Orders