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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Zheng v Lyndon [2023] NZHC 2679
Case
[2023] NZHC 2679
Decision Date
CaseChat Overview and Summary
In Zheng v Lyndon, Lu Zheng and Zheng Lu Holdings Limited (ZLH) sought damages for nuisance from David and Jennifer Lyndon, who owned a property adjacent to the plaintiffs’ commercial greenhouse. ZLH alleged that the poplar trees on the defendants’ driveway had encroached onto the plaintiffs’ land and into the greenhouse, causing material damage to their tomato crops and reducing their level of production. The defendants denied liability and raised several affirmative defences, including a counterclaim for trespass. The plaintiffs initially pleaded loss of profits of approximately $1.1 million but reduced this at trial to $712,500 (plus interest). The defendants argued that the presence of minerals was the explanation for any reduced level of production and that the plaintiffs’ business was not viable in any event.
The court determined that the defendants breached their measured duty to prevent a known risk of damage from late October 2016 to 17 August 2020. The court found that the root encroachment into the growing medium was likely the major cause of ZLH’s reduced sales revenue. The court concluded that the effect of shading was also a minor contributing cause. The court awarded ZLH damages of $45,278 plus interest at the prescribed rate of 5%, accruing from 31 March in the relevant year. The court dismissed the defendants’ counterclaim. The court declined to make an order as to costs but allowed for memoranda to be filed if costs could not be agreed.