Zheng v Lyndon

[2023] NZHC 2679

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-044-1425

[2023] NZHC 2679

BETWEEN

LU ZHENG and HIBISCUS INDEPENDENT TRUSTEES 2008
LIMITED as trustees of the ZHENG FAMILY TRUST

First Plaintiffs

ZHENG LU HOLDINGS LIMITED
Second Plaintiff

AND

DAVID JULIAN RICHARD LYNDON, JENNIFER ROBYN LYNDON and LISA MICHELLE ARCHER

Defendants

Hearing:	24, 25 (site visit), 26, 27 and 28 April 2023
Appearances:	P J Dale KC for the Plaintiffs S J Tee for the Defendants
Judgment:	27 September 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 27 September 2023 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr P J Dale KC, Barrister, Auckland

Mr J M Skinner, Skinners Law, Auckland Mr S J Tee, Morton Tee Ltd, Auckland

ZHENG and HIBISCUS INDEPENDENT TRUSTEES 2008 LTD as trustees of the ZHENG FAMILY TRUST v LYNDON, LYNDON and ARCHER [2023] NZHC 2679 [27 September 2023]

TABLE OF CONTENTS

Factual background  [4]

Issues  [44]

Liability in nuisance for root encroachment

Applicable principles  [46]

Was the injury reasonably foreseeable?  [57]

Breach of duty?  [61]

Causation  [66]

ZLH’s records  [72]
Identification of shading and root encroachment concerns  [89]
Evidence of the plaintiffs’ horticultural experts  [95]

Statistical evidence  [99]
Dr Nederhoff ’s evidence  [101]

Discussion  [109]

Measure of loss  [125]

Affirmative defences  [152]

Plaintiffs causing nuisance  [153]

Failure to abate/mitigate and contributory negligence  [154] Counterclaim  [161]

Interest  [169]

Result  [170]

Costs  [172]

[1]    In this long-running dispute between neighbours in Dairy Flat, Auckland,1   the plaintiffs claim damages for nuisance in relation to a row of poplar trees on the defendants’ driveway which runs along the plaintiffs’ boundary near to the plaintiffs’ commercial greenhouse.2 For some time, the parties focused on shading from the poplar trees. However, it is now common ground that the tree roots have encroached onto the plaintiffs’ land and into the greenhouse. The plaintiffs say the tree roots have caused material damage to their greenhouse tomato crops by reducing the level of production. They pleaded loss of profits of approximately $1.1 million, but at trial the claimed loss reduced to $712,500 (plus interest).

[2]    The defendants say that the presence of minerals is the explanation for any reduced level of production, that the plaintiffs’ business is not viable in any event and that the plaintiffs’ records are unreliable. The defendants also raise affirmative defences and a counterclaim for trespass when trees were cut back in 2016.

[3]    The evidence included various allegations and counter-allegations of unneighbourly conduct which it is unnecessary to address in order to deal with the pursued claims.

Factual background

[4]    Mr Lu Zheng is a Chinese national who came to New Zealand in about 1991. Mr Zheng specialises in growing tomatoes.

[5]    Mr Zheng and Hibiscus Independent Trustees 2008 Ltd (the first plaintiffs) are the current trustees of the Zheng Family Trust, which was established on 1 September 1996.  The second plaintiff, Zheng Lu Holdings  Ltd (ZLH), was incorporated on   22 August 1996 and is 10% owned by Mr Zheng and 90% owned by the Zheng Family Trust.

1      The proceeding was initially commenced in October 2016 by Mr Zheng and Zheng Lu Holdings Ltd against Mr Lyndon in the District Court. The plaintiffs’ application for removal into this Court was granted by Brewer J in March 2021: Zheng v Lyndon [2021] NZHC 471.

2      The plaintiffs did not pursue alternative causes of action in negligence and under the Property Law Act 2007.

[6]    On 15 November 1996, the then trustees of the Zheng Family Trust acquired a 10 acre property at 325 Postman Road, Dairy Flat (325). A condition of purchase allowed the previous owner to lease five acres with a right to subdivide 325 within the next five years.

[7]    Between 1997 and mid-1998, the trustees constructed a large new greenhouse on 325 (81m x 50m, and 3.5m high to the gutter at the lowest point) with its northern side approximately four metres from 325’s northern boundary.3

[8]    The trustees have leased the greenhouse to ZLH for the purpose of a substantial tomato growing business since its construction – except during the period from March 2000 to July 2006 when it was leased to a third party.

[9]    ZLH’s business is mainly operated by Mr Zheng and his wife, assisted by other family members.  It also employs two to three part time employees.  Occasionally,   it hires seasonal workers and contractors as needed.

[10]   ZLH’s tomato operation was described as near organic in that it is pesticide and fungicide free but grows in a soil-less growing medium comprising a proprietary combination of composted and natural materials (sawdust and pumice). The growing system was described as a container growing system albeit that the container is a long channel along each row. The container channel is separated from the ground below by plastic sheet. Water and nutrients are fed into the channel by a specialised irrigation or fertigation system that incorporates underground components. Unused water and nutrients are recirculated for subsequent use. In this sense, the operation is hydroponic.

[11]   In 2002, the subdivision of 325 was completed and the neighbouring property at 327 Postman Road (327) was created.

[12]   In 2003, the owner of 327 planted a line of poplar trees down the south side of the driveway on the northern boundary of 325. The poplar trees were planted close to

3      This was permitted at the time whereas under current zoning requirements the greenhouse would have to be built 12m back from the boundary.

the boundary (0.5m from the fence line) and therefore 4.6m from the greenhouse. There were approximately 120 poplar trees planted about 1.8m apart over a distance of about 200m.

[13]   Poplar trees have a reputation for fast growing and extensive root systems, although that was not known to the plaintiffs at the time.

[14]   Mr Zheng said that from 2007 sales started to decline. He said he began to see roots inside the greenhouse about 2008 but was not aware of the full impact and scale. He acknowledged that at the time he did not appreciate the risks to the crop from roots

–  he did not think root encroachment was a serious problem.

[15]   In May/June 2010, the defendants, as trustees of the Lyndon Family Trust, purchased 327. Mr and Mrs Lyndon moved in about July/August 2010. From the Lyndons’ perspective, the poplar trees provided a privacy screen and formed an attractive entrance to their property – before the driveway turned and went up to their residence at 327. By 2010, the poplar trees were likely more than 6m high. Also, on the northern side of 327’s driveway beyond a grass strip, a row of willow trees stood on a neighbouring property. The willow trees were higher than the poplar trees.

[16]   The poplar trees were already higher than Mr Zheng wanted. In mid-2011, Mr Zheng discussed the tree height with  Mr Lyndon.  There is  no  evidence that  Mr Zheng raised root encroachment with the Lyndons in 2011. Following the 2011 discussion about tree height, on 19 and 20 July 2011 Mr Zheng and two employees cut the trees back to a height of around 4-5m by agreement.

[17]   As a result, the trees grew faster. Mr Zheng said there were further discussions between 2011 and 2014 about cutting the trees shorter, without agreement, and that by May 2014 the trees had grown to around 19m high. Mr Lyndon said that they allowed Mr Zheng to trim the trees at his discretion on a regular basis between 2011 and 2014 and there was no issue. He disputes that the trees grew to 19m. Photographs during this period show the trees well above 5m but not as high as 19m. Based on a 2012 Google Earth photograph, Mr Lewthwaite (one of the plaintiffs’ experts) estimated the poplar trees to be 7-8m high at that time. The Lyndons’ arborist, Mr Meban, said they

were about 6m high  in 2014 but  he also  said poplars grow about  1m  per year.  This suggests that even if the trees were not 7-8m high in 2012, they were at least that high by 2014.

[18]   Mr Lyndon acknowledged that he became concerned that if the Lyndons left it for Mr Zheng to trim the trees at his discretion, he would trim them too low so they would lose the benefit  of  privacy  and  the  aesthetic  effect  the  trees  provided.  Mr Lyndon also acknowledged their preference was for a height of 4m.

[19]   Mr Zheng said that in 2014 he discovered the severity of the root encroachment.

[20]   On the evening of 26 August 2014, Mr Zheng spoke with Mr Lyndon about cutting the trees back and also said that roots were getting in the greenhouse.4 During that conversation, Mr Lyndon said he understood the trees affected Mr Zheng’s business.  Mr Zheng said in evidence they agreed to cut the trees back to 0.3m at   Mr Zheng’s expense (including annual pruning) whereas Mr Lyndon said they only agreed to cut back trees by the greenhouse and only to 1m. It is more likely there was a genuine misunderstanding at least as to height – the discussion was rushed and the two men had some difficulty understanding each other. Mr Zheng accepted that he did not ask Mr Lyndon to do anything else with the trees (apart from cutting them back).

[21]   Mr Zheng said that late the same evening Mr Lyndon visited with a written agreement for Mr Zheng  to  sign,  which  he  did.  This  agreement  provided  that Mr Zheng  would  trim/prune  the  trees  running  up  the  driveway  at  his  cost.  The agreement did not refer to trees by the greenhouse. Mr Zheng’s arborist cut (coppiced) the trees down to 300mm (0.3m) on 27 August 2014. Mr and Mrs Lyndon said they were devastated that all 121 trees had been coppiced to that height. They said they had prepared the written agreement on 26 August 2014. Mrs Lyndon agreed that Mr Lyndon had visited Mr Zheng later the same evening but not as late as Mr Zheng said. Mr Lyndon said he only discussed the agreement with Mr Zheng and had him

4      Mr Zheng’s son recorded the conversation on his phone. The defendants initially objected to the admissibility of the recording but Mr Lyndon ultimately accepted it was accurate.

sign it after the trees had been cut down to prevent any recurrence or misunderstanding. Exactly when Mr Zheng signed the agreement is unclear and does not matter. It is common ground there was an agreement. It does not specify the height of the trimming but 300mm is the height referred to in the arborist’s invoice dated 27 August 2014 paid by ZLH on 28 August 2014 and there is no other evidence of any complaint by the Lyndons.

[22]   It is common ground that after coppicing, the trees grew with spindly branches and out rather than straight up. Mr Lyndon said the trees took at least two years to grow back to 4m.5

[23]   The parties agree that between August 2014 and June 2016 they operated under the terms of the agreement.

[24]   Mr Zheng said that during this period he began to remedy the root issue every time he changed his crops. He said he removed roots that he saw but doing so was a difficult and slow process. He said it was not simply a matter of replacing the growing medium in the planting channel – the most difficult thing was to remove the roots outside of the plastic lining. He said that in 2014 to 2016 this required a minimum of three people for two to three weeks per row.6 They moved the growing medium to one side of the channel, lifted the plastic lining and removed the roots and affected soil. They placed back the plastic lining and weed mat, and added an extra layer of plastic cover as the channel had become wider. Then they moved the growing medium to the other side of the channel. They also needed to add extra growing medium which took another week. But he acknowledged that during this period of trying to remedy the root problems the growing medium was not replaced.

[25]   On about 1 June 2016, an employee of the plaintiffs misunderstood instructions and roughly chopped between 15 and 30 of the poplar trees down to about 0.5-2m. Mr Lyndon confronted Mr Zheng about this.

5      Also, photographs indicate that many of the willows adjacent to the greenhouse were cut back in 2015.

6      It was clear from Mr Zheng’s subsequent calculation of the time cost that he meant per row.

[26]   Mr Zheng engaged a lawyer  and  on  27 July  2016  his  lawyer  wrote  to  Mr Lyndon proposing a meeting to negotiate a new agreement for the maintenance of the trees, failing which they would apply to the District Court for orders overturning the 2014 agreement as unconscionable, removal of the  trees  and  compensation. The letter noted that, as well as damage to property, the trees had caused a loss of profit from decreased production due to the trees blocking the sun.

[27]   On 2 August 2016, the Lyndons’ lawyer responded denying the agreement was unconscionable, referring to compensation for the attack on the trees in breach of the agreement and treating the agreement as being at an end.7 Instead of a meeting, they set out a non-negotiable proposal whereby they would trim the trees once a year to 4m at Mr Zheng’s cost.

[28]   Mr Zheng acknowledged that at that time he thought the problem with roots had been resolved because he had dug them out. He accepted the Lyndons must have also thought the root problem had been resolved, and that he did not ask the Lyndons to remove roots as opposed to removing or trimming the trees.

[29]   On 28 October 2016, Mr Zheng and ZLH commenced proceedings against Mr Lyndon. The statement of claim alleged that the trees had a direct impact on the productivity of the company by blocking sunlight from the greenhouses affecting tomato growth (causing loss of profits estimated to be in the hundreds of thousands) and that dropping foliage accelerated deterioration of, and caused damage to, the greenhouses (causing greenhouse losses estimated to be at least $30,000).8 Aside from damages for nuisance, the claim sought an order that the trees be removed. A second cause of action under the Property Law Act 2007 (PLA) also alleged damage to the drainage system inside the greenhouse caused by the tree roots, and sought the same relief.

[30]   Mr Lyndon denied there was an actionable nuisance and opposed removal of the trees.

7      Nothing turns on  the  cancellation  of  the  agreement  save  to  note  that  during  the  period  the agreement was operative the plaintiffs do not seek to recover damages.

8      There was another greenhouse on 325 but it is no longer relevant to the dispute.

[31]   In September 2017, the Lyndons obtained an arborist’s report from Mr Meban in relation to the trees cut down in June 2016.

[32]   The dispute progressed slowly. There were some open settlement offers, notably:

(a)on 11 January 2018, Mr Zheng and ZLH made an open settlement offer whereby the poplar trees could be replaced by another type of tree not to exceed 4m at the Lyndons’ expense, together with payment of

$75,000 in damages for loss of profits in the tomato growing business;

(b)on 24 May 2018 the Lyndons offered to settle on the basis that their arborist would remove the trees at Mr Zheng’s expense and each party would forego claims for damages.

[33]   In November 2018, Mr Zheng obtained an expert report from Dr Nichols, recommending that the simplest solution would be to request that Mr Lyndon restrict the height of the poplar trees to a maximum of 6m during the winter months (April-August). This report was sent to the Lyndons’ lawyer although the lines that followed that recommendation were redacted:

If he is unwilling to comply, then Mr Lu is (NB I am not a lawyer) entitled to:

1)    cut back the windbreak to level with the fence line, and deposit the pruning over the fence.

2)   Dig a trench 1-2 m deep on his side of the fence, and cut the roots of the willow [sic] trees

The result will (inevitably) be that the first strong southerly wind will uproot and deposit the trees on Mr Lyndon’s driveway.

[34]   This reference to cutting the roots has less significance than suggested for the Lyndons. Mr Zheng was wise not to cut the roots in order to make the trees fall onto the Lyndons’ driveway.9 That would no doubt have further inflamed the dispute.  Nor does this reference suggest that Dr Nichols was aware that roots were damaging the greenhouse crops. Dr Nichols was asked to report on shading and did not consider

9      I will deal separately below with any steps the plaintiffs should have taken.

root effect. Redacting this suggestion did not deflect the defendants “off the scent” as submitted.

[35]   Also in November 2018, a further amended statement of claim included, as a particular of the alleged damage to the drainage system inside the greenhouses caused by the tree roots, that the tree roots had penetrated underneath the greenhouses and had interfered with the greenhouses’ water recycling drainage system which formed part of the irrigation system.

[36]In around July 2019, the Lyndons trimmed the tops of the trees back to 4m.

[37]   In October 2019, March 2020 and  June  2020,  Mr  Lyndon  photographed Mr Zheng at the farmers’ market to show that he was selling at cash markets.

[38]   In May 2020, Mr Ivicevich (another specialist tomato grower who gave fact and expert evidence for the plaintiffs) expressed concern about Mr Zheng’s loss of production through poplar root competition. In June 2020, the plaintiffs’ counsel wrote to the defendants’ counsel indicating that he had asked for some further analysis to be undertaken with particular reference to the root encroachment which was evident from his inspection.

[39]   On 17 August 2020, in relation to this alleged root encroachment, the defendants’ counsel invited Mr Zheng to dig a trench to cut any roots at the boundary and the defendants agreed to share the cost.

[40]   In September 2020, the parties agreed to create a root barrier and share the cost. This work occurred in October 2020. Photographs show the extent of the root encroachment.

[41]   In November 2020, the parties agreed that the trees should  be removed.  They were removed between 30 November and 3 December 2020. Mr Zheng said that when the trees were being removed Mr Meban, the defendants’ arborist, told him that in his experience, poplar roots can grow over 50m and that he bet that if Mr Zheng went 30m inside his greenhouse, he would definitely find poplar tree roots. Mr Meban

denied saying that but acknowledged that they went into the greenhouse and found roots; he said they could have been of tomatoes. Also, although Mr Meban quoted to dig the trench in August 2020, he said he wasn’t sure what it was for and wasn’t there when it was dug.

[42]   Even after the root barrier was created, growth still sprouted from the cut (isolated) roots. Mr Zheng had to do another round of remedial work although this was easier as the plastic lining did not need to be moved. It is unclear to what extent the growing medium was replaced at this time. Poplar sprouts were seen in the greenhouse as late as July 2022 and roots as late as October 2022.

[43]   I conducted a useful site visit with counsel on 25 April 2023 (the only time available since the trial was expected to take all of the four days allocated).

Issues

[44]   The nuisance cause of action in the fourth amended statement of claim alleges that the trees affected tomato growth and the productivity of ZLH. Loss of productivity was claimed as a consequence of  shading and root encroachment.10      At trial, the plaintiffs pursued the claim on the basis that root encroachment was the cause of the loss, rather than shading (which is accepted to result from an ordinary and natural use of the land).11 The plaintiffs did not pursue their claim for physical damage to the greenhouse.12

[45]The key issues for determination are:

(a)the requirements for liability in nuisance for root encroachment;

(b)whether the root encroachment caused damage and economic loss;

(c)if so, the measure of loss (including affirmative defences); and

10     Although paragraph 22 of the fourth amended statement refers to tree height, paragraphs 17, 18 and 23 make it clear enough that the claim extends to root encroachment.

11     Insofar as shading is a cause of loss, it would be a discount factor reducing quantum.

12     There is also no claim for labour cost in removing roots.

(d)the counterclaim for trespass.

Liability in nuisance for root encroachment

Applicable principles

[46]   Nuisance is a well-established tort and there was a fair degree of common ground as to the applicable principles. It is common ground that liability for root encroachment may arise irrespective of whether growing the trees is an ordinary and natural use of the defendants’ land. It is also common ground that for liability to arise (at least given the damages for economic loss sought in this case) there must be actual material damage (sometimes referred to as detrimental consequence).13

[47]   However, there were important differences between the parties, including as to whether liability in nuisance for root encroachment requires knowledge of the specific cause of damage. Mr Dale KC, for the plaintiffs, accepted that liability in nuisance depends on an unreasonable interference with the plaintiffs’ land, that is interference with the right to the use or enjoyment of an interest in that land, but he relied on the Privy Council’s statement of the law in Morgan v Khyatt:14

… if an owner of land by growing or permitting the growth on his land in the natural way of trees whose roots penetrate into adjoining property and thereby cause and continue to cause damage to buildings upon that property, he is liable for the tort of nuisance to the owner of that adjoining property.

[48]   Mr Dale also referred to two recent decisions of this Court involving root encroachment that appear consistent with a strict liability or absence of fault approach once material damage is caused.15

[49]   Mr Tee, for the defendants, relied on the Court of Appeal’s recent decision in Young v Attorney-General,16 and submitted that liability in nuisance is not strict but instead subject to a measured duty to do what was reasonable in the circumstances to

13 Woodnorth v Holdgate [1955] NZLR 552 at 554 (SC); Roud v Vincent [1958] NZLR 794 (SC) at 794; Blakesfield Ltd v Foote [2015] NZHC 1325, [2015] NZAR 1140 at [42]; and Semple v Wilson [2018] NZHC 992, [2018] NZAR 1025 at [53]-[54] and [98]-[99].

14 Morgan v Khyatt [1964] NZLR 666 (PC) at 667.

15 Blakesfield Ltd v Foote [2015] NZHC 1325, [2015] NZAR 1140 and Semple v Wilson [2018] NZHC 992, [2018] NZAR 1025.

16 Young v Attorney-General [2022] NZCA 391, [2023] 3 NZLR 24.

prevent a known risk of damage, and that in the case of a continuing nuisance there is no liability unless and until a defendant breaches its measured duty.

[50]   I consider the appellate authorities may be reconciled on the basis that the position depends on whether the defendant has created or continued the nuisance. Where a defendant has created the nuisance, taking reasonable care is no defence.17 However, where the nuisance has been created naturally or by an unauthorised third party, the defendant’s liability depends on having continued or adopted the nuisance.18 Continuing a nuisance occurs where there is a known risk of damage and also where the risk ought to have been known.   In these circumstances, the measured duty     (or measured standard of care) arises and liability depends on a breach of that duty.19

[51]   Although the passage in Morgan v Khyatt cited above suggests strict liability despite the trees having been planted by a previous owner, liability arose because the defendant knew that the roots had long been damaging the wall and drains in the adjoining property.20 Knowledge of the damage was the basis for the Court of Appeal decision too, which the Privy Council upheld.21

[52]   Also, although in Nottingham Forest Trustee  Ltd v Unison Networks Ltd22 the Court of Appeal stated that a party responsible for creating a state of affairs that unreasonably interferes with a neighbouring property will be strictly liable for the

17 See, for example, Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 (HL) at 638 per Earl Loreburn, and in New Zealand, Tindall v Far North District Council HC Auckland CIV 2003- 488-000135, 20 October 2006 at [62]. Liability for private nuisance does not turn on some overriding and free-ranging assessment by the court of the respective reasonableness of each party in the light of all the facts and circumstances; the requirements of the common law as to what a claimant must prove, and what will constitute a good defence, themselves represent in the round the law’s assessment of what is and is not unreasonable conduct sufficient to give rise to a legal remedy: Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 339 at [20].

18 Sedleigh-Denfield v O’Callaghan [1940] AC 880 (HL) at 894 per Viscount Maugham, at 897 per Lord Atkin, at 904–905 per Lord Wright and 919 per Lord Porter; Goldman v Hargrave [1967] 1 AC 645 (PC) at 662-663; Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321 at [33]; Tindall v Far North District Council HC Auckland CIV 2003-488- 000135, 20 October 2006 at [65]; Young v Attorney-General [2022] NZCA 391, [2023] 2 NZLR 24 at [30]-[36]; and Leisure Investments NZ Ltd v Grace [2023] NZCA 89 at [154].

19 In Young v Attorney-General [2022] NZCA 391, [2023] 2 NZLR 24 at [33] fn 42, the Court of Appeal referred to Professor Beever’s description of the “measured duty” as “sleight of hand”, and his explanation that what is in fact engaged is a measured standard of care: Allan Beever The Law of Private Nuisance (Hart Publishing, Oxford, 2013) at 77.

20     Morgan v Khyatt [1964] NZLR 666 (PC) at 667.

21     Morgan v Khyatt [1962] NZLR 791 (CA) at 794-795.

22     Nottingham Forest Trustee Ltd v Unison Networks Ltd [2021] NZCA 227, [2021] 3 NZLR 823.

consequences in the sense that it will not be a defence to show that all reasonable precautions were taken to prevent the activity from causing an unreasonable interference,23 the Court also stated that the case involved a “continuous or recurring emanation” from Nottingham Forest’s land as a result of trees planted by Nottingham Forest,24 and the Court referred to the need for reasonable foreseeability.25

[53]   Here, the trees were planted by the previous owner of 327 before the defendants purchased. The defendants did not create the nuisance and strict liability for it does not arise. As to whether the defendants continued or adopted the nuisance, Mr Dale submitted that foreseeable loss does not require that the specific cause be identified, citing Overseas Tankship (UK) Ltd v The Miller Steam Ship Co Pty Ltd (The Wagon Mound (No.2))26 and Attorney-General v Geothermal Produce NZ Ltd.27 He submitted the defendants knew of the allegation of damage to the drainage system inside the greenhouse caused by tree roots and elected to run the risk by ignoring the problem whereas they should have considered the value and importance of the trees relative to the claimed losses and engaged an expert in 2016.

[54]   Mr Tee submitted that the defendants only became aware of the risk of loss of production in June 2020 and then acted reasonably. He submitted the defendants did all that was asked of them in earlier years – they allowed the trees to be trimmed – and were entitled to assume any issues were resolved by the agreement reached in August 2014 at least until June 2016.

[55]   Accordingly, two further questions arise. First, what injury or damage must be foreseeable for a measured duty to arise? Secondly, when did the defendants know or when ought they to have known of that risk of damage?

[56]   As to the first question, the injury for which damages are claimed must be a foreseeable one. The approach to foreseeability is the same in nuisance as in

23     Nottingham Forest Trustee Ltd v Unison Networks Ltd [2021] NZCA 227, [2021] 3 NZLR 823 at [63].

24 At [58].

25 At [65].

26     Overseas Tankship (UK) Ltd v The Miller Steam Ship Co Pty Ltd (The Wagon Mound (No.2))

[1967] 1 AC 617 (PC).

27     Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 (CA).

negligence.28 An injury will be foreseeable if the possibility of that kind of injury was foreseeable, not necessarily the specific injury itself.29

[57]   Here, as Mr Tee accepted, the injury for which damages are claimed is loss of production in the greenhouse. That is the kind of injury that must be foreseeable – not the specific injury claimed to be due to the poplar trees’ root encroachment (rather than shading).

Was the injury reasonably foreseeable?

[58]   Turning to the second question, the defendants did not know there was a risk of damage before Mr Zheng raised the issue of tree height with Mr Lyndon in mid-2011. Nor ought they to have known. It is unclear when loss of production was first raised with the Lyndons. Root encroachment was first raised in August 2014 – but only in passing. The focus was still on tree height. Mr Dale accepted that the defendants were unaware of root encroachment until 2016. In any event, the parties’ agreement was then operative from August 2014 until June 2016 and no damages for loss of production are sought for that period.   That was the period during which    Mr Zheng carried out the first round of remedial work removing roots but there is no evidence he raised this with the Lyndons.

[59]   In July 2016, the letter from Mr Zheng’s lawyer noted the trees had caused a loss of profit from decreased production – albeit due to the trees blocking the sun. It is surprising this letter did not refer to the remedial work but, consistent with the approach taken in the proceeding, this may be because the work was done by family members at no paid cost.

[60]   In late October 2016, legal proceedings were commenced alleging the trees had a direct impact on the productivity of the company by blocking sunlight from the greenhouses affecting tomato growth causing loss of profits estimated to be in the

28 Hamilton v Papakura District Council [2000] 1 NZLR 265 (CA) at [77].

29 Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 (CA) at 359 per McMullin J and Nottingham Forest Trustee Ltd v Unison Networks Ltd [2021] NZCA 227, [2021] 3 NZLR 823 at [65].

hundreds of thousands.30 Root damage was also raised in the proceeding albeit only in the context of damage to the drainage system in the greenhouse. Mr Lyndon acknowledged that he knew that allegation was being made. The claim sought removal of the trees.

[61]   I consider the Lyndons knew or ought to have known of the risk of damage (loss of production) from late October 2016, and a measured duty arose then even though root damage was a relatively minor focus in correspondence and the PLA pleading at that time (and until June 2020). From at least late October 2016, the Lyndons were on notice as to the risk of damage and the proceeding sought removal of the trees. They even knew that root encroachment was claimed, just not the extent. They could have asked Mr Maben then about removing the trees (as they did in September 2017) and indeed could have asked him about root encroachment.

Breach of duty?

[62]   Turning to whether there was a breach of the measured duty, I accept the defendants’ conduct needs to be seen in the context of the plaintiffs’ own lack of focus on root damage during the period between 2016 to 2020. However, reasonableness is to be assessed objectively and I will address any responsibility the plaintiffs may have when I consider the affirmative defences such as contributory negligence below.

[63]   I do not accept the defendants’ submission that reasonableness is to be assessed by reference to current zoning requirements which would require a new greenhouse to be built 12m from the boundary. The defendants knew the location of the greenhouse which was built in a permitted location at the time. In any event, the poplar roots encroached considerably further than 12m.

[64]   I consider the Lyndons were dismissive of Mr Zheng’s loss of production claim even when proceedings were commenced in 2016, and did not take the risk of damage seriously. Mr Lyndon said trust had broken down by then because all 121 trees were cut down. As indicated, however, that was not correct since what happened in 2016

30     Particulars of the alleged loss of production were not provided until briefs of evidence were served much later.

was that an employee cut 15 to 30 trees down to between 0.5 and 2m (misunderstanding his instructions).

[65]   When the October 2016  legal  proceeding  sought  removal  of  the  trees,  Mr Lyndon opposed that. Indeed, the Lyndons resisted removal of the trees until November 2020 (other than as part of a 2018 settlement offer proposing each party forego claims for damages) even though they say the trees were ruined when coppiced in August 2014. Mr Lewthwaite, a horticultural expert called by the plaintiffs, considered that once the issue of root encroachment became evident, the trees should have been removed immediately.

[66]   Overall, I consider the defendants breached their measured duty from late October 2016 until 17 August 2020 when they invited Mr Zheng to dig a trench to cut any roots at the boundary.

Causation

[67]   As indicated, it is now common ground that tree roots have encroached onto the plaintiffs’ land and into the greenhouse. There are 30 rows in the greenhouse which run parallel to the northern boundary. Roots have been located as far as row 12 in the greenhouse, some 35m from the boundary and 30m into the greenhouse.

[68]   Mr Zheng said that ZLH was unable to utilise approximately eight rows on the northern side of the greenhouse for tomatoes. This amounted to approximately 25% of the rows. Other crops were grown there.

[69]   Roots were able to enter the container channel by piercing the plastic sheet or through the gap of the weed mat where either was damaged or worn out, or by growing on the surface. I accept this amounted to material damage.

[70]   Even so, the evidence indicates that concern about shading received more attention than root encroachment until 2020. As well, there was a sharp conflict between the experts as to any impact on tomato production. The plaintiffs’ three horticultural experts (Mr Ivicevich, Dr Nichols and Mr Lewthwaite) considered that root encroachment was a cause of the plaintiffs’ loss of income. Dr Nichols considered

it was the major cause. However, the defendants’ horticultural expert (Dr Nederhoff) said that minerals in the plaintiffs’ growing medium and other growing practices within Mr Zheng’s control were the explanation for any reduced level of production.

[71]   Causation is further complicated by a conflict as to the reliability of the plaintiffs’ records. This was addressed by the accounting experts. Some of their evidence weighed in on causation as well as calculation of loss. As ZLH’s sales revenue was also relevant to the horticultural experts addressing causation, I deal with criticism of the records next.

[72]   Before doing so, I note here that the expert evidence was one unsatisfactory feature of this case. The case involved evidence from 10 experts on causation and quantum issues. Much of the sharp conflict reflected the experts’ different factual bases but in some cases a lack of appreciation of the role of expert witnesses set out in the code of conduct and ineffective conferral meant that their evidence failed to assist by identifying the extent of agreement or disagreement assuming the different factual bases.

ZLH’s records

[73]   The defendants criticised the plaintiffs’ lack of production records, the lack of full disclosure of sales invoices and alleged there was undeclared income due to cash sales amounting to tax evasion.

[74]   Mr Zheng said he did not record production harvest by weight – he prioritised other responsibilities. When selling wholesale, buyer created tax invoices would record product by weight. Samples of these invoices were in the agreed bundle, but Mr Tee said not all invoices had been discovered. Mr Zheng said that when requested he had provided them to his lawyers.

[75]   In relation to the lack of production records, Mr Ivicevich said Mr Zheng had no need to keep them. The plaintiffs’ accounting expert, Mr Briggs, acknowledged that may be common at least for a smaller business whereas Mr Fleming, who gave expert accounting evidence for the defendants, criticised Mr Zheng for not recording production quantity. Mr MacDonald, another expert accountant for the defendants,

also said it was exceptionally strange but then acknowledged the buyer created tax invoices for wholesale sales and concluded that other than what was sold at markets there would seem to be data regarding product quantity sales.

[76]   Detailed and complete production records would no doubt have assisted in quantifying ZLH’s total production in the relevant years. However, as Mr Tee acknowledged, this was a best evidence point and not a discovery point. Although total production records are unavailable, I do not consider that is fatal to the claim.

[77]   In any event, the defendants’ main allegation in relation to records was that ZLH’s  reported revenue was unreliable given cash sales at the farmers’ markets.   Mr Zheng had acknowledged that, while ZLH sold most of its product on a wholesale basis, from late 2006 it also began to sell some product at farmers’ markets at retail pricing, mostly for cash. Mr Zheng said he sold about 5-25% of the produce at the markets, with the turnover equivalent to 10-50% of produce sold at wholesale. It is unclear whether this range reflects variation over time rather than a very approximate estimate.

[78]   In response to the defendants’ allegation of tax evasion, Mr Zheng acknowledged that he paid stall fees, fuel costs and for food and refreshments for himself or his wife and son out of the cash, and that sometimes he also paid a salesperson. He also acknowledged that he paid another staff member from cash sales one or two times.31 He said the remainder of the cash was banked. He estimated that 80-90% of the cash was banked although he thought it was more like 90%. The bank records were provided to his accountant (Mr Hunt) who treated cash deposits as income. Mr Zheng said he would take steps to address the issue of GST that might be payable. Mr Hunt provided a spreadsheet identifying the cash sales declared (deposited into the bank account)  and  the  estimated  undeclared  sales  based  on Mr Zheng’s statement.

[79]   Mr Zheng also said that he had been the subject of an IRD investigation around 1999-2000 when he used to conduct gate sales and that the result was that $36 was

31     In addition, he acknowledged he had paid staff in cash from another source, but that would not affect reported revenue.

outstanding, attributable to fuel costs on a personal vehicle sometimes used for business. In addition, he said that around 2018 or 2019 his accountant notified him that someone had made a report about him to Inland Revenue and that now he does not go to the markets  as  this  cash  sale issue has  caused  him  so  much trouble.  Mr Lyndon denied making that report to Inland Revenue.

[80]   In cross-examination, Mr Zheng said the total amount he was able to sell at the markets was around $1,000 a day for 45 days a year. He said he did not keep a record.

[81]   In relation to unreported revenue, Mr Fleming analysed the financial statements and calculated what he considered to be a modest income for the Zheng household. Mr MacDonald said that overall the financial performance of ZLH was “atrocious”. They suggested that cash sales must be much higher because the business does not have the earning capacity to support the Zheng family. Mr Fleming said that the statement of claim stated the plaintiffs incurred $30,000 costs repairing the roof and guttering and that since he could not identify this in the financial statements he inferred that if the repairs took place they were paid for in cash sourced from unreported revenue. He also said that because he could not identify payments to an employee during an initial period between September 2020 and August 2021, the inference was that she was being paid in cash from unreported revenue. He noted  Mr Zheng’s imprecise reference to 5-25% of sales at market, and was generally very critical of Mr Zheng’s practices and intent in relation to cash sales.

[82]   In response to Mr Briggs’ supplementary evidence addressing the unreported revenue, Mr Fleming suggested that Mr Briggs should have asked Mr Zheng about unreported cash for his original brief. Mr Fleming concluded that the undeclared revenues were significant and highly material and carried out in a manner that he believed would be considered “deliberate tax evasion”. In cross-examination, he said he did not believe Mr Zheng that a weekend at the markets only created turnover of

$1,000 because the typical cash banking was in the range of $4,000-$6,000 with some larger deposits.

[83]   Thus, the Lyndons’ suspicions which led to photographing Mr Zheng at the markets in 2019 and 2020 were supported by allegations of tax evasion from at least Mr Fleming.

[84]   Beginning with the proposition that the cash sales must be much higher because the business does not have the earning capacity to support the Zheng family, I do not accept that is an appropriate inference. As Mr Briggs identified, it assumes the family does not have money available from other sources. The evidence indicated Mrs Zheng did have other funds. In any event, this case is not about the funds required to support the Zheng family.

[85]   The $30,000 cost referred to in the statement of claim was not pursued and I do not infer that it was paid for in cash from unreported revenue. The employee to whom Mr Fleming referred gave evidence and explained that she was not really employed during the initial period as she approached Mr Zheng to learn off him. She explained that he wanted to pay her and gave her cash but that she then worked more and started getting paid properly. Mr Zheng said this cash was not from market sales.

[86]   Mr Fleming acknowledged that he had been the Lyndons’ personal accountant since 2008. Some of the matters he addressed were of concern. However, his evidence extended beyond providing expert accounting evidence to advocating for factual inferences and conclusions. At least in relation to these matters, I found Mr Briggs’ evidence of more assistance. Mr Briggs was not seeking to persuade me as to the level of unreported revenue. As appropriate for an accounting expert, he was providing a calculation on the basis of a level recorded as an understanding or instruction.32

[87]   ZLH’s sales revenue from 2007 onwards as reported in the financial statements was  understated  because  cash  sales  were  not  declared.  That  is  concerning.   The position in relation to payments to staff/contractors is also unclear and unsatisfactory – whether or not paid out of undeclared revenue. There may well be tax implications.

32     His relatively brief comment responding to the allegation of tax evasion probably extended into advocacy.

[88]   In any event, the issue for me in this case is whether the evidence of unreported sales revenue is reliable. Given the evidence of the extent of cash deposits into ZLH’s bank account and the scale and frequency of the market  stalls,  and  having  seen  Mr Zheng and his accountant give evidence including as to the need to take steps to address the issue with Inland Revenue, I consider the extent of the unreported income is unlikely to be more than 20% of the cash sales and that this cash was likely used  at least in part for related expenses. Accepting Mr Fleming’s evidence that the typical cash banking was in the range of $4,000-$6,000, these deposits were infrequent.   The average yearly cash sales declared was approximately $42,000. I do not accept that the defendants’ suspicions and serious allegations warrant completely rejecting the evidence of ZLH’s sales as unreliable when considering causation and loss in this case. Put another way, even taking into account the plaintiffs’ onus of proof, I do not consider the evidence indicates that undeclared cash income is the likely explanation for the lower reported revenue in the period of the claim (2010 to 2020) such that this is an essentially fraudulent claim. With an appropriate adjustment for unreported revenue based on the evidence, I consider the reported revenue has sufficient reliability. Although Mr Zheng thought more than 80% of the cash was banked (and his accountant suggested an even higher percentage), I consider the appropriate adjustment is that 20% of cash sales were not reported in the relevant years.

[89]Accordingly, ZLH’s sales revenue was as set out in the following table:

YE 31 March	ZLH’s sales (before adjustment)	ZLH’s sales revenue (adjusted)
1999	302,269
2000	333,243
2001-July 2006	Leased out – no records
2007	128,34133
2008	225,215
2009	186,686
2010	167,812
2011	160,947
2012	139,423
2013	146,981
2014	141,187
2015	111,295
2016	178,844
2017	179,238
2018	273,024
2019	257,084
2020	289,162
2021	323,335

Identification of shading and root encroachment concerns

[90]   I next summarise the factual evidence as to the identification of shading and root encroachment concerns.

[91]   As mentioned, in August 2014 Mr Zheng told Mr Lyndon that roots were getting in the greenhouse, but the focus of his request to Mr Lyndon was to cut the trees down to 300mm. However, the proceeding that Mr Zheng commenced in 2016 included a claim alleging damage to the drainage system inside the greenhouse caused by the tree roots and sought an order that the trees be removed.

33 For the years ending 31 March 2007 to 31 March 2010 the sales records were not adjusted for undeclared revenue as bank statements showing cash sales declared were not available. Hence, no reliable sales revenue is available for that period which in any event was before there was any evidence of root encroachment.

[92]   Mr Ivicevich was the one expert who had regularly visited Mr Zheng’s greenhouse during the period before 2020. He spoke very positively of Mr Zheng’s operation and practices. He had noticed thrifty or mean, lean plants at the north end of the greenhouse, improving progressively in the rows away from the north side.  He referred to a common maxim in the industry, grounded by research papers, that 1% loss of light means 1% loss of crop, which was accepted by the other experts.

[93]   Dr Nichols’ report in November 2018 focused, as  indicated,  on  shading. His evidence acknowledged the same maxim and that at the time of his 2018 report winter light was considered the important factor and poplar roots were not considered to be of significant importance.

[94]   Also in November 2018, as indicated, a further amended statement of claim included, as a particular of the alleged damage to the drainage system inside the greenhouses caused by the tree roots, that the tree roots had penetrated underneath the greenhouses and had interfered with the greenhouses’ water recycling drainage system which formed part of the irrigation system.

[95]   Before 2020, none of the experts inspected root encroachment in the greenhouse. Mr Ivicevich raised root encroachment in May 2020. Mr Dale’s letter followed.

Evidence of the plaintiffs’ horticultural experts

[96]   Dr Nichols, who had focused on shading during his 2018 visit, said that during a later visit in January 2021, poplar roots were observed in the gap between the fence and the greenhouse and became a matter of concern. Nevertheless, at that time he still considered light to be the major cause of loss of productivity. However, he said that once Dr Luo, a statistician, was introduced into the team and identified a significant linear relationship between income (annual sales data) from greenhouse crops and tree height, and Mr Zheng produced a graph based on the dispersal of poplar roots in the greenhouse, it was clear that from a competition for light viewpoint the four winter months were key. Dr Nichols explained that the reduction of income during the other eight months must have been due to other causes, which he said were logically poplar roots. Dr Nichols compared the sales revenue per year of $408,235 (based on a

monthly average) in the period from November 2020 after the roots were cut until August 2022 with that of $322,743 in the earlier period from 2017 until October 2020 when the roots were still active. I note that neither figure takes account of unreported cash income.

[97]   In conclusion, Dr Nichols said that his 2018 report did not consider root competition but that he now considers that root encroachment is the major cause of loss of income and that competition for light, though important, played only a minor role. He accepted that the effect of shading might be up to 10% and explained that root competition involves competition for water, nutrients and oxygen. Dr Nichols said there could also have been an allelopathic effect from the roots releasing some chemicals but that there is no evidence in relation to that either way.

[98]   Mr Lewthwaite considered the plaintiffs’ tomatoes to be of the highest quality. He considered that the poplar trees’ shade was the first cause of crop weight reduction, beginning as soon as the trees reached a moderate height and density. At the same time, the roots entering the greenhouse would have become a major nuisance. He said as the roots grew into the greenhouse their effect was going to increase. They would be expected to influence productivity in all probability through the whole greenhouse. He considered that shading especially in winter was more important than root competition for water and nutrients but agreed with other experts that the roots probably caused loss of productivity. He said roots remained growing in October 2022.

[99]   Mr Ivicevich concluded that Mr Zheng’s income fell and rose in line with both the height of the poplars and the root encroachment and said that there was no other plausible explanation. He said that both factors affected production consistent with the sales figures. He also considered that the cost of remediation of the root encroachment would have exceeded the productivity losses.

Statistical evidence

[100]   As well as the horticultural experts, the plaintiffs called the statistician Dr Luo. He said there was a negative correlation between tree height and income from 2007 to 2015 and a positive correlation from 2015 to 2020. Thus, there was no consistent

relationship between tree height and income. Even adjusting both tree height and revenue to reflect my factual findings, I agree there is no consistent statistical relationship between tree height and revenue.

[101]   Dr Luo identified a consistent negative relationship between income and root effect. However, he indicated that he applied a root effect scale from 0 to 30 based on when he understood the roots grew and Mr Zheng removed them. He also categorised years according to whether there was shade and/or root effect or neither. Based on the income in the relevant years, he concluded that shading caused 36.5% of the loss. This evidence was not sufficiently based on the factual evidence and was not substantially helpful.

Dr Nederhoff ’s evidence

[102]   Dr Nederhoff visited Mr Zheng’s greenhouse on 28 October 2022 (well after the trees and roots had been removed). She considered that Mr Zheng had an overly positive view of his greenhouse and equipment, describing it as a basic double-plastic greenhouse of considerable age, in reasonable condition for its age, with simple controllability.

[103]   Dr Nederhoff described Mr Zheng’s growing system as a crossover between soil-based and soil-less growing, which she said misses all the advantages of standard hydroponics systems. She considered that a major shortcoming of Mr Zheng’s system compared with normal hydroponics was that he could not regularly flush or renew the growing medium. Dr Nederhoff noted that when Mr Zheng’s crops were replaced each season, the growing medium in the rows was turned over but not replaced.

[104]   Dr Nederhoff asked for samples of Mr Zheng’s growing medium and had them tested in a laboratory. She said the report revealed excessive, extremely high levels of five or six fertilisers, indicating severe accumulation of mineral fertilisers in the growing medium. She said that as Mr Zheng never renewed his growing medium until 2014, she expected the mineral load was especially high up to 2014. She concluded that the growing medium had been used over many years as it contained such minerals and that this stale growing medium was unhealthy for the plants. She concluded this undoubtedly negatively affected production.

[105]   Dr Nederhoff said she saw no indication that an external factor such as the neighbouring poplar trees was the cause of Mr Zheng’s relatively low tomato production or was a contributing factor. In reply to the plaintiffs’ experts, she also said that a full hydroponics system protects the crop from intrusions coming from the natural soil. She concluded there was no evidence at all that the tomato plants were disadvantaged by the alleged root encroachment.

[106]   Dr Nederhoff compared Mr Zheng’s operation with that of Mr Ivicevich who, as mentioned, is a specialist tomato grower. Dr Nederhoff had visited Mr Ivicevich’s operation about once or twice a year from 2000 to 2008. She considered that their different sales value was explained by a 33% reduction from Mr Ivicevich’s figures as Mr Zheng’s system is near-organic and a 25% reduction since Mr Zheng did not grow tomatoes in 8 of his 30 rows. She also noted two other points of difference:

(a)Mr Zheng had a lower  input cost  – about half of Mr  Ivicevich’s.  She said that production is input driven and that his inputs and sales jumped up significantly in 2019 after he started using consultancy services which may indicate that his growing practices had been suboptimal before that.

(b)Mr Zheng’s stale growing medium, already mentioned.

[107]   Dr Nederhoff concluded that the income gap between the two growers was caused by differences in growing practices within Mr Zheng’s control – type of growing system, lower level of technology, poor maintenance, lower labour input, growing organically and growing a mixed crop.

[108]   Dr Nederhoff went on to consider what mechanism could be behind the alleged root effect. She concluded that given Mr Zheng’s fertigation, there was no competition for water and nutrients. She also dismissed the suggestion of an allelopathic effect and Mr Luo’s statistical root effect. She acknowledged that the poplar trees would have intercepted a fraction of the natural light that otherwise would have reached the greenhouse but concluded the production loss was less than 2% unless the trees were 19m high.

[109]   Dr Nederhoff concluded that each jump in yearly income coincided with refreshing of the growing medium in 2014-2016 and again in 2020. As well as criticising Mr Zheng for not having a proper hydroponic system, she said he could have installed the root barrier earlier than 2020.

Discussion

[110]   It is necessary to consider the expert evidence in light of my factual findings as to sales revenue, tree height, root removal and growing medium replacement.

[111]   The horticultural experts ultimately agreed that shading had only a minor effect and their evidence narrowed to two competing causes for Mr Zheng’s reduced productivity in the period between 2007 and 2020 – root encroachment or problems with Mr Zheng’s growing system. No intervening cause such as a change in price or demand was suggested to account for reduced sales revenue. I accept that sales revenue correlated to production. Dr Nichols considered that lower production could be assumed from lower income because tomato prices tend to be very consistent, and Mr Ivicevich considered that his sales figures served as a guide to the market to show that the market was not going up or down. That is relevant when assessing ZLH’s performance over time.

[112]   Together, the plaintiffs’ horticultural experts supported the claim that root encroachment was a cause of loss of production. Dr Nichols put it highest, saying it was the major cause of loss of income. As he acknowledged, this was a change from his  2018  report.  Indeed,  it  was  a  significant  change.  He  also  disagreed  with Dr Nederhoff’s conclusion that there was no evidence at all that the tomato plants were disadvantaged by the alleged root encroachment. All three of the plaintiffs’ horticultural experts acknowledged that shading also had an effect.

[113]   As indicated, Mr Zheng uses a soil-less growing system even though the plants appear to be in the ground and there is no barrier between beds and walkways at ground level. In this respect, therefore, Dr Nederhoff misunderstood Mr Zheng’s growing system although she correctly noted that Mr Zheng acknowledged that he never changed the plastic sheet and weed mats and therefore it is inevitable that they

may have become worn out and damaged from time to time making it easier for roots

–  and I infer some soil – to enter the bed more easily.

[114]   Dr Nederhoff’s thesis also seemed to assume that Mr Zheng’s remedial work in 2014 to 2016 involved replacing the growing medium.  However, as indicated,  Mr Zheng acknowledged that he did not replace the growing medium; he merely added extra growing medium as the channel had become wider.

[115]   Dr Nederhoff’s suggestion that the growing medium was unhealthy when sampled in late 2022 appears inconsistent with her thesis that production improved after the growing medium was replaced and inconsistent with the other evidence as to good crop quality and sales revenue at that time.  Mr Ivicevich gave evidence that  Dr Nederhoff had used the wrong laboratory testing form when submitting the samples which led to the provision of an incorrect guide range upon which she relied for her conclusions. In response, Dr Nederhoff said the form did not matter for her purpose but she withdrew her characterisation of the minerals as excessive or high compared with the guidelines on the form. She agreed there were no excessive levels of minerals or macronutrients.

[116]   However, Dr Nederhoff maintained that until roots grew much bigger they would not take up nutrients or cause harm, and that it was refreshing the growing medium that improved production. She agreed that removing roots was a distraction and might have caused loss but she could not quantify the loss of income.

[117]   In cross-examination relating to Dr Nederhoff’s comparison of Mr Zheng’s and Mr Ivicevich’s operations, she sought to support the reduction for near-organic productivity on the different basis that Mr Zheng used considerably less fertilisers than Mr Ivicevich, but she acknowledged that 33% was just a guess. As there was no evidence that either grower changed their operation in this respect throughout the period, I doubt this factor explains a difference in performance during the years of the claim. Further, a 25% reduction for 8 rows is only an alternate explanation for reduced production if it is assumed that root encroachment was not the cause for their non-use for tomatoes.

[118] Overall, I do not accept Dr Nederhoff’s conclusions that ZLH’s reduced production was due to a stale growing medium and that each jump in yearly income coincided with refreshing of the growing medium in 2014-2016 and again in 2020. That conclusion was undermined by her incorrect reference to excessive or high mineral content, the timing of her samples relative to performance and her assumed replacement of the growing medium. If she were correct that the growing medium was replaced when the remedial work was done in 2014 to 2016, that would not necessarily identify the cause since that same remedial work involved removing the roots. Even allowing for partial refreshing by adding to the growing medium in the period from 2014 to 2016, the pattern of ZLH’s adjusted sales revenue in the years ending 2015 to 2021 at [89] above does not reflect Dr Nederhoff’s conclusion. If her explanation were correct, I would expect a significant increase following a change to the growing medium followed by a gradual decline until the growing medium was next changed. I also found her comparison of the operations of Mr Zheng and Mr Ivicevich rather adversarial. I preferred Mr Ivicevich’s less negative description of Mr Zheng’s growing system.

[119]   However, it is still necessary to identify a plausible explanation or mechanism for the root effect identified by the plaintiffs’ horticultural experts. It is common ground that roots below the channel do not directly affect the tomato plants, but as indicated roots were able to enter the container channel by piercing the plastic sheet or through the gap of the weed mat where either is damaged or worn out, or by growing on the surface.

[120] Dr Nichols’ opinion was heavily dependent on the factual evidence – sales data, the relationship between sales data and tree height, and his understanding of the dispersal of poplar roots in the greenhouse. I have already addressed the challenges to sales data and Mr Luo’s dispersal of roots scale. The adjusted sales data at [89] above has some correlation with Mr Zheng’s root removal since sales increased following both rounds of remedial work. I have found that Mr Luo’s scale was not helpful.

[121]   Tree height was also disputed at least in some years. Based on my factual findings which differ somewhat from those assumed by the horticultural experts, it is

difficult to detect a correlation between sales revenue and tree height. The trees were trimmed back to 4-5m in July 2011 but sales fell in the year ending March 2012.  The trees were coppiced in August 2014 but sales fell in the year ending March 2015. 15 to 30 trees were cut down again in June 2016 but sales in the years ending March 2016 and 2017 were almost the same. The biggest jump in sales revenue in the year ending March 2018 does not follow a reduction in tree height. In any event, the horticultural experts agree that shading was of only minor effect.

[122]   Further, cutting back the trees did not affect root spread and therefore, subject to Mr Zheng’s action to extract roots, root encroachment into the greenhouse would have continued to increase at least until the root trench was dug in October 2020. It is likely that Mr Zheng’s action to extract roots mitigated the effect of root encroachment on tomato production.

[123]   As Dr Nederhoff seemed to accept, remedial work removing roots would likely have caused loss of production. Root removal occurred progressively between 2014 and 2016. If nothing else, the time required to do so between crops would have an effect. The first round of remedial work was before the defendants’ measured duty arose in October 2016, but there was a second round of remedial work from late 2020 which also likely caused loss of production albeit this is difficult to quantify given the improved sales revenue in the 2021 financial year.

[124]   Stepping back and considering the fact and expert evidence as a whole, I accept that poplar root encroachment into the growing medium would likely compete with the tomato plants for water, nutrients and oxygen. The roots were invasive and some were large. Mr Ivicevich disagreed with Dr Nederhoff that the effects of competition would necessarily be visible wilting or discolouration unless the plants were drying out more than just getting a ration of feed and in any event he did describe tomato plants nearer the north boundary as thrifty or lean albeit that initially appeared to be due to shading. I prefer his evidence in this regard over Dr Nederhoff’s given his particular expertise with tomatoes and that she only saw the plants in October 2022. Mr Nichols and Mr Lewthwaite also gave evidence that the roots were competing with the plants for water,  nutrients and oxygen and that a loss of growth would follow.     I also accept that root encroachment would cause the nutrient mixture to dribble out

into the underground soil. In addition, roots were able to encroach into the irrigation system although there was no evidence that loss of production was caused by damage to the irrigation system.

[125]   Overall, focusing on the period from October 2016, I conclude that poplar root encroachment was likely the major cause of ZLH’s reduced sales revenue. ZLH’s improved sales revenue from the year ending March 2016 is more consistent with the removal of roots than Dr Nederhoff’s competing theory. However, I consider the effect of shading was likely also a minor contributing cause.

Measure of loss

[126]   The measure of (compensatory) damages in tort is the sum of money which will put the party who has suffered a loss in the same position as it would have been in had it not sustained the wrong.34 In a tort claim, this means the position the claimant was in before the tort was committed.35 In the case of a continuing nuisance, each new and separate infliction of harm gives rise to a fresh cause of action.36 The value of a crop lost as a result of a nuisance is recoverable as damages.37 Here, I have found that a measured duty arose and was breached on a continuing basis between late October 2016 and 17 August 2020.

[127]   Neither side’s expert accounting evidence calculated the quantum of loss on a basis that aligns with my factual findings. Nevertheless, I am satisfied that there has been some real damage and in such circumstances the Court will do the best it can to arrive at a figure based upon the available evidence.38

34 Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 (CA) at 359 per McMullin J and 370-371 per Casey J.

35   Gardiner v Metcalf [1994] 2 NZLR 8 (CA) at 12 per Cooke P; Cox & Coxon Ltd v Leipst [1999] 2 NZLR 15 (CA) at 19–20 per Gault J; Benton v Miller & Poulgrain [2005] 1 NZLR 66 (CA) at

[100] per Hammond J.

36 Maberley v Peabody & Co of London Ltd [1946] 2 All ER 192 (KB) at 194; Taylor v Auto Trade Supply Ltd [1972] NZLR 102 (SC) at 109; Ward Ranch Ltd v Minister of Conservation/Te Papa Atawhai [2018] NZHC 2893, [2019] NZAR 210 at [47].

37 Bill Atkin “Private Nuisance” in Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [9.2.9(1)] referring to Roud v Vincent [1958] NZLR 794 (SC) (plaintiff’s garden damaged by defendant’s elm roots); Simpson v Attorney-General [1959] NZLR 546 (SC) (potato crop destroyed by flooding); Geothermal Produce New Zealand Ltd v Goldie Applicators Ltd HC Rotorua A26/81, 17 February 1983 (on appeal Attorney-General v Geothermal Produce New Zealand Ltd [1987] 2 NZLR 348 (CA)) (rose crop damaged by herbicide spray).

38 Walsh v Kerr [1989] 1 NZLR 490 (CA) at 494.

[128]   As indicated, the plaintiffs’ claim is based on lost sales by comparing sales income with that of Mr Ivicevich’s tomato growing operation. The relevant claimant in respect of such a loss is ZLH as occupier of the greenhouse.39 There is no claim for the time and material cost of root extraction – I understand this is because the time was primarily incurred by Mr Zheng and his family rather than by paid staff or contractors. Mr Zheng said the loss figures have been calculated very conservatively and he considered the comparison with Mr Ivicevich’s sales was beneficial to the defendants given his own operation’s past income.

[129]   Returning to the accounting evidence, Mr Briggs assessed the loss taking two approaches: first, comparison with Mr Ivicevich’s tomato growing operation; and secondly, internal analysis of ZLH/Mr Zheng’s revenue during periods unaffected by the loss. Taking  the  first  approach,  based  on  the  evidence  of  Mr  Zheng  and  Mr Ivicevich comparing their operations and Mr Zheng’s higher reported revenue in 1999 and 2000, Mr Briggs took Mr Ivicevich’s achieved revenue from April 2010 as the estimate of what the plaintiffs would have earned each year but for the poplar issue.40 Using the second internal analysis approach as a cross-check, Mr Briggs identified the years that were substantially unaffected as 1999, 2000, 2021 and 2022. ZLH’s average revenue for these years was above Mr Ivicevich’s average ($310,224).

[130]   The plaintiffs’ pleaded loss of profits of approximately $1.1 million was essentially Mr Briggs’ calculation of lost sales under his first approach covering the period from April 2010 to November 2020 (excluding 26 August 2014 to 2 August 2016). He calculated that, after deducting expense savings given the shortfall in revenue, the net loss was $779,788.

[131]   Mr Briggs provided supplementary evidence addressing the issue of cash sales based on the supplementary evidence of Mr Zheng and his accountant. Mr Briggs adjusted his calculations on the basis that 20% of cash sales were not declared (but rather were applied to sundry expenses). As a result, at trial the claim for the same period reduced to $712,500 based on adjusted sales revenue.

39 Tindall v Far North District Council HC Auckland CIV-2003-488-135, 20 October 2006 at [60].

40 Since Mr Ivicevich changed his tomato variety and selling system in 2014 resulting in increased revenue, Mr Briggs capped Mr Ivicevich’s revenue after 2014 at the average of his revenue from 2011-2014 ($310,224).

[132]The relevant sales revenue figures are set out in the following table:

YE 31 March	ZLH’s sales revenue (adjusted from 2011)	Ivicevich’s sales revenue
1999	302,269	204,337
2000	333,243	235,223
2001-July 2006	Leased out – no records
2007	128,341	310,510
2008	225,215	247,294
2009	186,686	280,609
2010	167,812	305,854
2011	160,947	252,984
2012	139,423	328,875
2013	146,981	312,144
2014	141,187	346,891
2015	111,295	310,224
2016	178,844	310,224
2017	179,238	310,224
2018	273,024	310,224
2019	257,084	310,224
2020	289,162	310,224
2021	323,335	310,224

[133]   Mr Briggs did a further calculation for the period from August 2016 to November 2020. For that period, he originally calculated the lost revenue as $229,255 based on ZLH’s reported sales revenue. He then deducted expense savings given the shortfall in revenue to calculate the net loss for that period as $153,908.

[134]   Mr Briggs’ supplementary evidence reduced the total lost revenue for the period from August 2016 to $197,888 and the net loss after expense savings to

$127,842.

[135]   Adjusting Mr Briggs’ final calculation to cover the shorter period from late October 2016 (commencing 1 November 2016) to August 2020 in accordance with

my measured duty finding would result in a further reduction in respect of the year ending March 2017, reducing the net loss by $24,373 as follows:41

Aug 2016 - Mar 2017	Nov 2016 - Mar 2017
Loss of revenue	86,487	54,189
Less equip hire	3,301	2,068
Less fuel & gas	11,157	6,990
Less wages	3,301	2,068
Less misc	3,459	2,168
Total	65,268	40,895
Difference	24,373

[136]   On this basis, the net  loss  for  the  period  from  October  2016  adopting  Mr Briggs’ approach would be $103,469.42

[137]   Returning to Mr Fleming’s evidence, apart from the matters already addressed in relation to records, he suggested that by not replacing the plastic sheet and weed mats Mr Zheng was potentially not carrying out adequate repairs and maintenance; he contrasted ZLH’s expenditure with Mr Ivicevich’s expenditure; said it was unsafe to assume the production system was identical in 2007 and onwards to what it was before being leased out; and referred to “underspend” as ZLH’s expenses reduced from 2008 to 2013. He also considered ZLH’s bank statements were “somewhat remarkable” because there was little demand on the company for drawings or remuneration and rates were paid once a year without taking advantage of spreading payments with no interest charge.

[138]   Mr Fleming considered that Mr Briggs’ approach was fundamentally flawed. He disputed the comparison with Mr Ivicevich’s business – referring to the cash sales,

41 Deducting revenue and savings for the year ending 31 March 2017 by 214/365 (instead  of  124/365) to exclude the period from April to October 2016. No further deduction is required for the shorter period in the year ending March 2021 since there was no loss in that year.

42 $127,842-$24,373.

different weather within Auckland and different inputs. He disagreed that the 1999 and 2000 years could be used for comparison between the two businesses. He said those years should be disregarded. Instead, he compared their results between 2008 and 2019, noting that Mr Zheng’s business spent an average of $146,779 less per year. Mr Fleming concluded that Mr Zheng’s business was more efficient in its production and if he had spent the further $146,779 he would have produced another $219,594 in revenue per year.

[139]   Mr Fleming analysed monthly revenue data and said there was extreme variability. He said that knowing that this business plants and harvests continuously throughout the year, the only plausible explanations were either production did not take place during the low revenue months or sales were not banked and returned as income.

[140]   Mr Briggs acknowledged  the  variability  between  months  identified  by  Mr Fleming – most notably in 2015 – but Mr Briggs said this could be due to cash rather than accrual accounting. This seems a more likely explanation than the root extraction work since that work proceeded row by row. Although Mr Zheng said that removing roots was difficult and time consuming, he did not say there were substantial periods when ZLH was out of production. I also note that, while not pursued, in an earlier pleading Mr Zheng claimed for greenhouse repairs undertaken in 2015 which might also account for a period of no production.

[141]   As Mr Dale submitted, some of Mr Fleming’s opinions on matters beyond expert accounting opinion were surprising. They undermined the reliability and helpfulness of his evidence as an impartial expert.

[142]   Mr MacDonald compared the financial statements data of Mr Zheng (ZLH) and  Mr  Ivicevich.  He  incorporated  ZLH’s  undeclared  income  as  reflected  in Mr Hunt’s spreadsheet. Mr MacDonald concurred with Mr Briggs’ approach of shortfall in revenue less any potential cost savings. However, he expressed concerns that the operations of Mr Zheng and Mr Ivicevich were not comparable and considered the data quality precluded an accurate assessment of loss (if any). However, he proceeded to attempt to make adjustments for comparability and concluded that as

Mr Zheng had a much lower cost structure, he would have made a better profit than Mr Ivicevich based on comparability adjustments,  indicating  there  was  no  loss. Mr MacDonald also considered Mr Briggs’ internal analysis approach was flawed given the understated netted off expenses from revenue.

[143]   Mr Briggs and Mr MacDonald agreed that ZLH’s reported revenue likely understated the gross revenue on Turners & Growers sales (and ZLH’s costs), but this would not affect the internal analysis of ZLH’s revenue across periods.

[144]   In closing, Mr Tee submitted that adjusting from Mr Ivicevich’s results would be more reliable than internal analysis of Mr Zheng’s bookend results (1999/2000 and 2020/2021).

[145]   As Mr Ivicevich and Dr Nederhoff agreed, differences between Mr Zheng’s and Mr Ivicevich’s operations mean that a direct revenue comparison is not a reliable indicator of loss. I do not consider it helpful to calculate the plaintiffs’ loss by making somewhat arbitrary adjustments for comparability with Mr Ivicevich’s revenue. Even Mr Ivicevich’s sales revenue varied materially from year to year.

[146]   Nevertheless, despite differences between their operations, Mr Ivicevich considered their consistencies made comparing their incomes relevant at least in the sense of indicating comparable performance varying only  for identifiable reasons. He accepted that he spent more on maintenance and upgraded his operation in 2014, and agreed that a loss of profits comparison was unsafe. He considered, however, that his sales figures served as a guide to the market to show that the market was not going up or down. That is relevant when assessing ZLH’s own performance over time.

[147]   Turning to that internal analysis approach, ZLH’s revenue data in the years before and after the affected period is also limited given the greenhouse was leased to a third party between March 2000 and July 2006 and there is no reliable sales revenue for the years ending 31 March 2007 to 2010. This gap or lack of continuity raises doubt about the comparability of the prior period. In any event, I have determined the relevant period of the defendants’ nuisance is only from late October 2016.

[148]   Even so, the evidence of ZLH’s revenue in the trading years ending 2000, 2001 and 2021,43 before and after the alleged tree root encroachment, especially when combined with Mr Ivicevich’s revenue data throughout the period to 2020 (adjusted for his identified changes from 2014),  does  indicate  some  level  of consistency. As Mr Dale submitted, there are consistent data points indicating revenue of $300,000 plus per year – before the trees were planted, after they were dealt with and from another grower (Mr Ivicevich, except 2011) in the same period. Mr Dale acknowledged that none is necessarily decisive, but he submitted that together they provide a degree of comfort that absent the tree roots ZLH’s revenue would be expected to be about $300,000 per year. This is more conservative than the expected revenue of $310,224 per year based on Mr Ivicevich’s average in the four years up to 2014.

[149]   I note this might appear to reflect an expectation damages approach more appropriate for breach of contract whereas the measure of damages in tort is the sum of money which will put the party who has suffered a loss in the same position as it would have been in had it not sustained the wrong. However, as indicated, the value of a crop lost as a result of a nuisance is recoverable as damages and I accept that in the case of this continuing nuisance the lost value of each year’s crop is recoverable under the tort measure.

[150]   Using revenue of $300,000 as an annual benchmark in the relevant years instead of $310,224 but otherwise using Mr Briggs’ calculations would lead to the following reduced calculation of net loss:

43     The year ending 31 March 2020 was before the second round of root extraction.

2017	2018	2019	2020	To Aug 2020	TOTAL
Loss of revenue	49,959	26,976	42,916	10,838	-	130,689
Less equip. hire	- 2,068	- 5,000	- 5,000	- 5,000	-	17,068
Less fuel & gas (12.9%)	- 6,445	- 3,480	- 5,536	- 1,398	-	16,859
Less wages	- 2,068	- 5,000	- 5,000	- 5,000	-	17,068
Less miscellaneous (4%)	- 1,998	- 1,079	- 1,717	- 434	-	5,228
Net loss	37,380	12,417	25,663	-99444	-	75,460

[151]   I also consider that a 10% discount should be applied for the likely effect of shading.

[152]As a result, the net loss reduces to $67,914 as follows:

2017	2018	2019	2020	To Aug 2020	TOTAL
Net loss	33,642	11,175	23,097	-	-	67,914

[153]   I consider that this is the appropriate measure of ZLH’s loss in all the circumstances.

Affirmative defences

[154]   The defendants pleaded affirmative defences of consent, failure to abate nuisance or mitigate loss, plaintiffs causing nuisance and contributory negligence. The defence of consent related to the period from 2010 to June 2016 and so has no application given my finding that the measured duty only arose later. I deal next with the plea that the plaintiffs caused the nuisance and then with the remaining affirmative defences together.

44     With this reduced revenue, there is no loss in the year ending 31 March 2020. The -$994 is ignored when totalling the net loss over the earlier years.

Plaintiffs causing nuisance

[155]   I do not accept that the plaintiffs caused the nuisance as alleged by the defendants. In relation to the location of the greenhouse, the defendants’ pleading that the greenhouse could have been moved further away from the boundary was not pursued as a realistic solution. I also do not accept that the plaintiffs refused a reasonable proposal for trimming the trees. Nor do I accept that coppicing the trees caused the nuisance. The evidence did not support the defendants’ submission that the plaintiffs caused or contributed to the cause of damage on the basis that coppicing the trees caused the roots to grow more quickly. Mr Meban said only that coppicing caused the branches to grow outwards more quickly. The evidence also did not substantiate the allegation that the plaintiffs composted the common boundary to promote root encroachment.

Failure to abate/mitigate and contributory negligence

[156]   Abatement of a nuisance is an alternative to damages, and the exercise of the right of abatement destroys the right to damages at least insofar as abatement removes the nuisance and eliminates the damage.45 So, if the defendants’ measured duty had arisen in 2014, the steps Mr Zheng took to remove the roots in 2014-2016 would have reduced the damage. It is unnecessary to address whether ZLH would have been able to recover the time cost of doing so.

[157]   In relation to Mr Zheng’s actions once the measured duty arose, any so-called failure to abate can be assessed, like failure to mitigate, in terms of contributory negligence.

[158]   A defence of contributory negligence has no place in the classic nuisance case where the defendant creates a source of continuing interference with the plaintiff’s protected interest. Just as it is no defence for the defendant to show that all possible precautions to prevent the nuisance were taken, it is also irrelevant that the plaintiff

45     Darroch v Carroll [1955] NZLR 997 (SC) at 999.

has failed to take available steps to minimise its effects.46 However, in the case of a measured duty, a defence of contributory negligence may be advanced by way of a partial defence.47

[159]   I do not accept there is any affirmative defence based on the plaintiffs’ failure to accept the defendants’ August 2016 settlement offer. That focused on trimming the trees and in any event required the plaintiffs to pay. Nor do I accept there is any affirmative defence based on composting the common boundary to promote root encroachment, failing to maintain the greenhouse or keeping it in its existing location.

[160]   In relation to the allegation that the plaintiffs failed to remove roots alleged to encroach, as indicated, Mr Zheng acknowledged that around mid-2016 he thought the problem with roots had been resolved because he had dug them out. Mr Zheng could have done more. Even taking into account Mr Dale’s submission that contributory negligence was not squarely put to Mr Zheng in cross-examination,48 I consider he also could have sought expert advice about the roots when commencing proceedings in October 2016 and would likely have been told that they would grow back into the greenhouse and that the trees needed to be removed or a root barrier dug to stop roots growing back into the greenhouse. Although he was wise not to cut the roots at the boundary in order to make the trees fall onto the Lyndons’ driveway when that was suggested to him in late 2018, he had a right of abatement throughout – he would have been entitled to dig a trench between the boundary and the greenhouse to cut the encroaching roots.49 He also could have explained the root encroachment more specifically to the Lyndons including the remedial work he needed to do. Just as the defendants breached their measured duty, the plaintiffs could and should have abated the nuisance and mitigated their loss earlier.

[161]   Accordingly, the parties share blame. In totality, neither acted reasonably. But their failures differed. In the relevant period from late October 2016 when the

46 Bill Atkin “Private Nuisance” in Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [9.2.8(2)], citing, for example, Bank of New Zealand v Greenwood [1984] 1 NZLR 525 (HC) at 534 (plaintiff not required to eliminate effect of nuisance by fitting curtains or blinds at their expense).

47     Young v Attorney-General [2022] NZCA 391, [2023] 2 NZLR 24 at [36].

48     Evidence Act 2006, s 92.

49     Darroch v Carroll [1955] NZLR 997 (SC) at 999.

measured duty arose, the Lyndons were dismissive of the claimed loss of production, resisted removal of the trees even after Court proceedings were initiated and failed to take reasonable steps to identify root encroachment as the major cause of loss and to address it. Mr Zheng failed to communicate the extent of root encroachment to the Lyndons and also failed to take reasonable steps to identify root encroachment as the major cause of economic loss. Having regard to this comparative culpability and the extent to which their respective failings contributed to the loss,50 I consider that in all the circumstances an apportionment of one third for contributory negligence is just and equitable.

[162]Accordingly, ZLH as occupier is entitled to an award of damages of $45,278.

Counterclaim

[163]   The counterclaim seeks $78,000 for loss of amenity in the trees due to the trees being coppiced, said to be in August 2017, $1,356 for the cost of removal and $50,000 for distress, upset and loss of privacy. It is common ground that this relates to the actions by the plaintiffs’ employee on 1 June 2016 but despite the terms of the pleading Mr Tee said it extended to the coppicing in August 2014 since the agreement did not apply to trees beyond the greenhouse.

[164]   As indicated, in September 2017, the Lyndons obtained an arborist’s report from Mr Meban in relation to the trees cut down in June 2016. Mr Meban said he was advised the trees had been cut to about 400mm in 2014 and again in 2016 and that the appearance of the trees was consistent with that. He also said they were about 8m high when he visited in September 2017.

[165]   As also indicated, in 2016 between 15 and 30 of the 120 trees were cut down to between 0.5m and 2m. Any trees cut to 2m (or below) in June 2016 would not be 8m in September 2017.

[166]   While the trees did not entirely screen the greenhouse even from the driveway, I accept that the amenity value of the trees changed after they were coppiced.

50     Body Corporate 326421 v Auckland Council [2015] NZHC 862 at [294].

However, they were coppiced in August 2014. Even though I have found there was a misunderstanding as to the precise height agreed in August 2014, the Lyndons agreed the trees running up the driveway could be cut down – to at least 1m. That changed the amenity value of all 120 trees, rather than the rough cutting of 15 to 30 trees in June 2016.

[167]   I therefore do not accept the defendants have a claim for loss of amenity value of $78,000 in respect of 120 trees (or $72,600 as calculated by Mr Meban as the difference between $650 and $45 for each tree, with $45 also being the removal cost). At most, if the trees were not a continuing nuisance, the defendants would have had a claim for the unauthorised cutting of 15 to 30 trees in June 2016 that had already been coppiced in August 2014. Consistent with Mr Meban’s evidence, those trees were already damaged beyond recovery and therefore only worth $45 each. Depending on the number of trees cut, their total value would be between $675 and $1,350.

[168]   However, the trees had to be removed in any event and I decline to award damages for them. Nor are the defendants entitled to $1,356 for the cost of removal of the trees in 2020 given the continuing nuisance. Likewise, the defendants are not entitled to general damages for distress or otherwise.

Interest

[169]   ZLH seeks and is entitled to interest. Applying the provision in force when the proceeding was commenced,51 and since the cause of action accrued at the same time as the proceeding was commenced, one option would be to award interest from that date. However, since the damages substantially relate to losses in the intervening period, I consider it is more appropriate to award interest at the prescribed rate of 5% on each component of the loss, after the contributory negligence apportionment, accruing from 31 March in the relevant year as follows:

Year ending 31 March	2017	2018	2019	2020	To Aug 2020	TOTAL
Net loss	22,429	7,450	15,399	-	-	45,278

51     Judicature Act 1908, s 87.

Result

[170]   The second plaintiff (ZLH) is entitled to judgment on the claim in nuisance for damages of $45,278 plus interest calculated as set out in [169] above.

[171]The defendants’ counterclaim is dismissed.

Costs

[172]   While the plaintiffs have succeeded in part, given the reduced damages awarded and in all the circumstances of this unfortunate dispute, I am inclined to make no order as to costs. However, if costs cannot be agreed, memoranda (not exceeding three pages) may be filed within 20 working days and I will determine costs on the papers.

Gault J