BARRY PARK INVESTMENTS LTD v JOHNSON [2019] NZCA 686

BARRY PARK INVESTMENTS LTD v JOHNSON [2019] NZCA 686 [23 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA179/2019[2019] NZCA 686BETWEEN BARRY PARK INVESTMENTS LIMITEDAppellantAND XANTHE ANNA JOHNSON ANDMARK ANDREW GRAHAMRespondentsHearing: 18 November 2019Court: Gilbert, Dobson and Whata JJCounsel: G J Kohler QC and S J R Neville for AppellantK M Quinn and C B Pearce for RespondentsJudgment: 23 December 2019 at 3.30 pmJUDGMENT OF THE COURTA The appeal is allowed in part.B The finding that the wall constitutes a wrongly placed structure is upheld.C The terms of relief that is just and equitable are amended in the respects setout in [89] and [90] of this judgment.D The appeal is otherwise dismissed.E The costs orders in the High Court remain unaltered.F There is no order as to costs in this Court.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)Table of ContentsIntroduction [1]Grounds of appeal [8]The facts [10]A wrongly place structure? [18]Was trespass made out? [41]Nuisance [47]RemediesPrinciples [50]Factual findings [56]Challenge on appeal [68]Our assessment [75]Costs [91]Result [93]Introduction[1] This appeal arises from litigation between residential neighbours as tothe consequences of an old drystone wall not following the line of the boundarybetween their properties in Tawari Street, Mt Eden, Auckland. Instead, the wall,constructed largely of basalt rock, stands to an irregular but material extent onthe accessway into the respondents' property, which is downhill from the appellant'sproperty at 22 Tawari Street (No 22).[2] The respondents were the plaintiffs in the High Court. They are the owners of24 Tawari Street (No 24), which is situated on a rear section, accessible by an unsealeddriveway running between 22 and 26 Tawari Street. After purchasing the property in2012, they discovered that their driveway does not run over the land as defined ontheir title but, in skirting around the bottom of the wall, instead runs to a significantextent over parts of 26 and 26B Tawari Street (No 26), their neighbour on the otherside from the wall. The boundaries of No 24 are represented on an Auckland CityCouncil aerial photograph attached as Appendix 1. The extent to which the unsealeddriveway intrudes into No 26 is discernible on the photograph. The extent ofthe incursion of the wall across the boundary between Nos 22 and 24 is as surveyedon the plan attached as Appendix 2.[3] The owners of No 26, who are not parties to this litigation, are prepared toallow the respondents to use the driveway as formed for their own private access, butwould oppose its use for the increased volume of traffic that would be involved in anyredevelopment of the respondents' property. The owners of No 26 are also notprepared to sell or swap areas of land to enable the respondents to incorporate the driveas formed within the accessway on their own title. If the owners of No 26 were towithdraw their consent to access over the eastern side of their property, thenthe accessway into No 24 would be reduced at its narrowest point to 1.28 metres.[4] The appellant company is the owner of No 22. The company holdsthe property on trust for the benefit of the long-standing occupant, Martin Burton, andthe proceedings treat Mr Burton as the beneficial owner, making decisions in respectof the property. The High Court judgment personified Mr Burton as the effectivedefendant, and we do likewise.[5] Potentially material details, which could establish how the wall wasconstructed over the boundary, are lost in the mists of time. It seems most likely thatthe wall was constructed in the mid-1880s shortly after the boundary between whatare now Nos 22 and 24 was surveyed along the line that remains the boundary betweenthe two properties today. Difficulties in re-aligning the wall to follow the boundaryline are compounded by the presence of Mr Burton's wooden villa, constructed inthe 1880s, which rests on the top of the drystone wall for a significant part of its length.[6] In the High Court, Muir J held that the wall comprised a wrongly placedstructure in terms of the Property Law Act 2007 (the Act), entitling the respondents asowners of No 24 to relief under the Act on terms that the Court considered just andequitable.1 Muir J also found that the extent of the wall's encroachment into No 24amounted to an actionable trespass at common law.[7] Because of the options available to Mr Burton once his liability to removethe encroachment was established, the Judge directed that he do so, either adoptingthe methodology put in evidence by the respondents' expert, or some alternativeapproved by a registered structural and geotechnical engineer.2 The Judge orderedthat the works were to be at Mr Burton's cost except for the costs of removing any1 Johnson v Barry Park Investments Ltd [2019] NZHC 597 [High Court judgment].2 The terms of the High Court orders are set out at [66] below.original basalt outcrops that would have been naturally occurring at the time the wallwas built on or around them, plus an allowance for betterment accruing tothe respondents from the final form of the wall as reinstated on the boundary.Costs, including increased costs, were awarded to the respondents.3Grounds of appeal[8] Mr Burton contends that the Judge erred in analysing the character of the wall.He argued that it was a common wall, retaining the land on No 22 and providinga boundary fence between Nos 22 and 24. On that basis, the parts of the wall on No 24could not constitute a trespass as the owner should be taken to have consented, therebygranting an express or implied licence for the presence of the parts of the wall that areon No 24.[9] As to the statutory cause of action, the Judge is said to have erred in applyingthe definition of "wrongly placed structure" in s 321 of the Act.4 The reasoningfocused on the function of the structure rather than any imputed intention for it.Arguably, the Judge erred in finding the wall's function or purpose was to providea flat building platform for No 22. Instead, it was a retaining wall and to markthe boundary, so it could not be characterised as being wrongly placed. Alternatively,if the threshold in s 321 was triggered, then ss 324 and 325 afforded the Court a widediscretion as to remedy and the Judge had not applied correct principles in the ordersthat were made. He had failed to take account of relevant factors and the orders madewere not just and equitable.The facts[10] Both properties were part of a significantly larger holding known as "RockyNook" that was subject to initial subdivision in or around 1882. Approximately100 lots of standard width set out in a street pattern were surveyed. Records show thatwhat is now No 22 was transferred by the subdividing owner to a Mr Gilbert on11 March 1884. Research suggests that the existing house at No 22 was built by 1889.The wall must have been constructed before the house because the house rests on3 Johnson v Barry Park Investments Ltd [2019] NZHC 1213 [Costs judgment].4 The terms of the definition in s 321 of the Property Law Act 2007 are set out at [18] below.the backfilled area behind and on the top of it. The lot immediately west of what isnow No 22 (that is, No 24) was not sold by the subdivider until 1898.Accordingly, unless the wall was constructed by the subdivider before No 22 was sold,then the wall was erected by the first owner of No 22 while No 24 remained inthe ownership of the subdivider.[11] There was no evidence of any issue being raised about the wall encroachingover the boundary between what are Nos 22 and 24 prior to the issue being raised bythe respondents after they acquired No 24 in 2012.[12] In 1957, the then owner of the lot that has become No 24 and the two lotsadjoining it further to the west, amalgamated them and carried out a fresh subdivision.This provided the presently configured No 24 with an accessway off Tawari Streetleading to a section behind two newly configured smaller lots fronting Tawari Streetthat have become Nos 26 and 28. The survey plan produced by Mr Grierson,the surveyor engaged for the task, noted along the boundary between what are nowNos 22 and 24 "stone wall [generally] on [boundary]", with an indication of a retainingwall in the first third of the length of that boundary running south from the streetfrontage. Although the plan is endorsed with numerous measurements, it is acceptedthat the 1957 survey did not alter the previously existing boundary line betweenNos 22 and 24, which has remained in the same place since the original subdivision inabout 1882.[13] Mr Burton acquired No 22 in 1979. Approximately 21 years ago, a work placeaccident caused him permanent injury and he has been confined to a wheelchair sincethat time. The house has been adapted for his use. Although tenanted for severalyears, he has lived there continuously since 2014. Photographs of his home suggestthat it is in a neglected, if not decrepit, state. It is accepted that Mr Burton had no ideaof the extent to which the wall on his western boundary encroached into the accesswayfor No 24.[14] The respondents are architects who purchased No 24 with a view to developingit. The existing cottage on the property is also described as being very old anddilapidated. The marketing when they purchased it included the slogan, "Develop Or Detonate!". Aerial maps maintained by Auckland City Council with propertyboundaries marked on them, such as Appendix 1, showed on close analysis at leasta prospect that the wall on the boundary with No 22 encroached over the accesswayfrom the road into their rear section. Subsequent to purchasing No 24, the respondentsraised with the Auckland City Council the structural safety of the dwelling on No 22.Whilst the local authority confirmed its structural soundness, this was hardlyan initiative to engender positive neighbourly dealings.[15] The Judge accepted that the respondents were not aware at the time of purchasethat the wall encroached materially over their legal boundary with No 22. They wereequally unaware that the driveway used to access their section intruded overthe adjoining property at No 26 on the other side of the accessway to a material extent.[16] At the time of the respondents' purchase of No 24, the relevant resourcemanagement provisions would have allowed the development of two residential units.Since their purchase, Auckland's Unitary Plan has been introduced and, subsequent toresolution of appeals, is now in effect. The plan has zoned this part of Mt Eden for"Terraced Housing and Apartment Buildings" (THAB), which authorises higherdensity residential dwellings.[17] The obstacle to pursuing any redevelopment of No 24 is the limitation onthe width of the accessway into it. As defined in its title, the accessway has a widthof 3.05 metres. The reality on the ground is that, without relatively substantialintrusion over into No 26, no vehicular access is possible at all. To providean accessway of a minimum of 2.6 metres, measured east from the western boundarywith No 26, would require the removal of relatively substantial portions of the wall atvarious points. To clear the obstruction on the accessway for its full legal width of3.05 metres would involve substantial removal of the wall, to an extent that at pointswould deprive Mr Burton's house of support. If a new wall that did not encroach onthe accessway were to be constructed along the legal boundary, it would preferably beperpendicular rather than sloping. Further excavation under Mr Burton's house wouldbe required in order to provide such a wall with the necessary support.A wrongly placed structure?[18] The first issue in the appeal is whether the statutory provisions in the Act areengaged. Part 6 of the Act provides for special powers of the Court to impose ordersin respect of land in certain circumstances. They are generally of a remedial nature.Sub-part 2 deals with wrongly placed structures,5 with s 321 providing the followingdefinition:wrongly placed structure means a structure that—(a) is situated on or over the land affected, not being the land intended forthe structure (whether or not the land intended adjoins the landaffected); or(b) is situated on or over the land affected but was not placed there—(i) by, on behalf of, or in the interest of a person who was, atthe time, the owner of the land affected; or(ii) under a contract made with, or by way of a gift made to,a person who was, at the time, the owner of the land affected.[19] The concept of "land affected" is defined to mean any land on which a structureis actually situated, while "land intended" means any land on which a structure wasintended to be situated.[20] Section 322 provides for persons with defined interests in land affected bya wrongly placed structure, or the owners of the land where it was intendedthe wrongly placed structure would be placed, to apply to the Court for relief.[21] This sub-pt of the Act not only includes provision of relief for those adverselyaffected by a wrongly placed structure, but also contemplates relief in the conversesituation where a valuable structure has been wrongly located on someone else's landand the owner of that land asserts entitlement to the structure because it representsa valuable addition to their land.65 Other sub-pts include powers to authorise entry on neighbouring land, and to deal with landlockedland, and trees and unauthorised improvements on neighbouring land.6 A number of the forms of order provided for in s 325 of the Property Law Act are to amelioratethe impact of the loss of such structures where those constructing them have located them inthe wrong place. See at [51] below.[22] Counsel urged different approaches to what the legislature meant by "landintended for the structure". There may be cases where there are reliable records ofwhat was intended by the parties involved in the construction of a relevant structure.In other cases, of which the present is an example, an appropriate alternative is to inferwhat the intention must have been from the function or purpose that the structurefulfilled when it was constructed. Whether the structure is in the wrong place (so thatit is wholly or in part not on the land intended for it) may have to be discerned byreflecting on its location in light of the purpose it was intended to fulfil.[23] In determining the intended location of a structure, the Court may be assistedby considering either the function it serves or the purpose for which it was constructed,or by reflecting what those responsible for its construction intended at the time.The analysis in a particular case cannot be criticised for adopting one or other of theselenses as the means of determining the intended location of the structure.[24] Mr Kohler QC challenged the Judge's finding, made on the balance ofprobabilities, that the purpose of the wall was to provide a level platform forthe construction of a house on No 22.7 Instead, Mr Kohler argued that the primaryfunction was as a retaining wall and/or as a boundary fence or divider between the thenrecently subdivided sections. Mr Kohler accepted that a consequence ofthe construction of the wall was the provision of support for a building platform onNo 22, but disputed that would have been the motivating intention of whoever wasresponsible for its construction. Implicitly, if the purpose of the wall was to dividethe neighbouring sections and retain the ground on the higher side (No 22), then it ismore likely that it was located by agreement between the neighbours and is thereforenot located other than where intended.[25] The Judge took into account evidence from Mr Black, a geotechnical expertcalled by the respondents, who had identified loose basalt cobbles and soil as fillextending under the floor in the south-east corner of Mr Burton's house.That demonstrated that graded fill had been used for approximately the whole ofthe width of the house at that point, extending back a considerable distance from7 High Court judgment, above n 1, at [12].the face of the wall. The Judge rejected an alternative purpose proposed by Mr Kohlerthat the wall had been constructed to contain the slope between the two sections.The Judge found that the natural contour of the slope along that boundary was notsufficiently steep for any form of terracing to be needed between the two sections.8[26] In the High Court, Mr Quinn, for the respondents, invited analogy with twoHigh Court decisions that applied the provisions in the Act dealing with wronglyplaced structures in cases that involved residential flats on sections subject tocross-leases.9 Either by extension beyond the permitted footprint for the structures ofeach flat, or by drafting errors in defining the individual cross-lease areas relative toexisting pathways, the legal position of the flat owners' titles did not reflect the realityon the ground. In both decisions, the High Court rejected narrow arguments as to howto assess the intended location of contentious structures, finding that the provisions inthe Act could apply irrespective of whether the location of structures had occurreddeliberately and whether placed before or after the legal boundaries were settled.Having reviewed the reasoning in those earlier cases, the Judge observed:[45] These cases establish that the essential inquiry is not one based onthe intention of the builder but on a common-sense assessment of what isthe purpose or function of the structure. In that context the inquiry into whichproperty it "goes with" handily defines the concept.[27] We agree that approach reflects the legislative purpose of the provisions inthe Act.[28] On the sketchy and potentially unreliable details of the sequence of events inthe 1880s, we agree with the Judge that the most likely intention of those constructingthe wall was to provide a level building platform for No 22.10 On the basis thatthe subdivision establishing the boundary between Nos 22 and 24 occurred beforethe wall was constructed, but with the wall being built prior to construction ofthe house on No 22 in the late 1880s, that provides the most likely explanation forthe extent of work required for its construction and backfilling. In the absence of8 At [13].9 Duncan v Taylor (2011) 12 NZCPR 235 (HC); and Boyer v McCracken [2017] NZHC 755, (2017)18 NZCPR 671.10 High Court judgment, above n 1, at [29].consent by the adjoining owner, such a retaining wall to create a flat building platformcould be constructed up to, but not over, the boundary.[29] The 1882 subdivision created what is now No 22 and the section immediatelyto the west (that is, divided by the boundary line now in contention) as identical sizedrectangles.11 For sections that were already relatively long and narrow, there does notappear to be any logical reason why the owner of the section on the western side ofthat boundary (that is, now the accessway part of No 24) would agree toan encroachment over the boundary to what at some points would have been a materialextent. This point has less impact than would be the case if the nearest adjoining lotto the west of No 22 was sold individually. However, the transfer of that land in 1898was of three sections to the west of No 22.[30] If indeed the intention attributable to the party responsible for construction ofthe wall was to create a retaining wall and a boundary fence, then there is no evidenceto suggest that the construction would be intended to encroach significantly beyondthe then recently surveyed boundary. More would be required to make outthe intentional placing of the wall substantially beyond the boundary than a possibleinference that it was easier to build it there because of the natural contours ofthe underlying basalt rock. Common sense would suggest that if those responsible forconstruction wanted to use the wall to demarcate the boundary, then their intentionwould be to have the wall follow the boundary. In those circumstances, the extent ofthe wall beyond the boundary is wrongly placed.[31] Further arguments against a finding that the wall was wrongly placed includedMr Kohler citing old authority for the proposition that, once in place, a drystone wallwould become part of the land on which it sat.12 He also cited the propositionthat a party wall straddling a boundary between two fee simple properties would, inthe absence of other legal commitments, be found to be owned as to the half on eachowner's property by that owner, with an implied easement over it to the adjoiningowner whose position was the same.1311 The next two sections further to the west (on one of which No 28 is now located) also had similarwidths in terms of road frontage but were slightly shorter in terms of the depth of the sections.12 Holland v Hodgson (1872) LR 7 CP 328 (Exch Ch) at 335.13 Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at[32] Mr Kohler also invited analogy with this Court's judgment in Lakes EdgeDevelopments Ltd v Kawarau Village Holdings Ltd.14 That litigation involved rockanchors constructed to secure the land across lots that, at the time, were in commonownership. After the sale of part of the original property, the new owner objected totheir presence. The Court concluded that the rock anchors had become part of the landunder which they were installed and therefore were owned by the owner for the timebeing of the respective parcels of land.15 Mr Kohler argued that the same positionpertained here, so that the owners of No 24 could not complain about the part ofthe wall on their land because it had become a part of the land. Mr Kohler submittedthat it was of no significance that in the Lakes Edge Developments litigation, the rockanchors had been placed when both parts of the land intended to be supported by themwere in common ownership, so that consent of the then owner was material to theirconstruction.[33] We consider that distinction is material, and the analysis of whether the partsof the wall on No 24 are wrongly placed cannot be avoided by the status of the wallhaving become a part of the land on that lot.[34] Mr Kohler linked a further point to his argument that the portions of the wallencroaching No 24 had become part of No 24 by criticising the Judge's analysis asnecessarily finding that the whole of the wall on No 24 was an encroachment. In termsof its physical composition, Mr Kohler argued that finding was inevitably incorrectbecause the wall is constructed on pre-existing natural outcrops.[35] We do not accept there is any inadequacy in the Judge's reasoning by notdistinguishing the extent to which the wall was constructed in the 1880s, and thenbackfilled, from the pre-existing natural outcrops. Certainly, Mr Burton could not berequired to remove naturally occurring impediments to access over the full width ofthe accessway, but the predominant aspect of the encroachment is the wall asconstructed. It is therefore appropriate to characterise the wall as a wrongly placedstructure because of that predominant aspect of it, subject to relieving Mr Burton of[1.7.06] citing Tram Lease Ltd v Croad [2003] 1 NZLR 73 (HC).14 Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2017] NZCA 205, [2017]3 NZLR 336.15 At [65].the cost of removal of the naturally occurring components of it in order to reinstatea structure that does not encroach.[36] In the High Court, Mr Kohler also sought to characterise the wall as a commonor party wall. He relied on a description from the text New Zealand Land Lawaddressing one category of walls in the following terms:16Where a wall is placed between two properties but persons in both propertieshave a legal interest in it, it is called a party wall. If the wall width straddlesthe boundary of two fee simple properties, and no other legal instrument orlegislation applies, then the courts will usually find that each property ownerowns their half of the wall along its length, but that there is an impliedeasement over it to the adjoining neighbour, who does likewise.[37] In supporting the Judge's analysis rejecting the notion that it is a party wall,Mr Quinn submitted that, of the range of circumstances where a party wall or commonwall might be recognised, the only one of potential relevance here is "[a] wall dividedlongitudinally into two sections, one belonging to each of the adjoining owners".Mr Quinn endorsed the Judge's reliance on the analysis in Hinde, McMorland & SimLand Law in New Zealand from which this definition came.17[38] After reviewing the circumstances in which a structure could be a party wall,the Judge held:[29] I accept the plaintiffs' submission that such circumstances [that is,that half the width of the wall stands on the land of each owner] plainly do notapply in this case. The wall does not have an identifiable centreline. As I haveindicated, for much of its length what presents as wall is simply the westernface of a much deeper artificial building platform on the defendant's property.Moreover, to the extent it can be considered to have a centreline, it is notdivided by the two properties. And there is no evidence that the wall was builtby adjoining owners at their joint expense. To the contrary, I have found that,on the balance of probabilities, at least to the extent the wall providesa foundation for the house and supports its front garden, it was erected bythe then owner of number 22 to establish a level building platform andcurtilage.(Footnote omitted).16 Toomey, above n 13, at [1.7.06].17 High Court judgment, above n 1, at [25]–[29], analysing Don McMorland and others Hinde,McMorland & Sim Land Law in New Zealand (loose-leaf ed, LexisNexis) at [6.054].[39] We agree with the Judge's reasons for rejecting Mr Kohler's argument thatthe wall should be seen as a party wall.[40] We accordingly agree with the Judge that para (a) of the definition of "wronglyplaced structure" applies to the extent of the wall encroaching over the boundary.We comment on the possible application of para (b) of that definition in ourconsideration of the appellant's challenge to the Judge's finding that trespass was alsomade out. That alternative common law basis for the respondents' claims is notnecessary to uphold the outcome on liability but may influence the analysis of the formof relief available to the respondents.Was trespass made out?[41] The respondents' claim in the High Court was that a predecessor in title ofMr Burton's had erected a structure encroaching on their land at No 24, therebycommitting a trespass. The continued presence of the wall amounted to a continuingtrespass and, as owners of the land encroached upon, they were entitled to require itsremoval, even if they had "come to the trespass" in the sense of inheriting it when theyacquired No 24.[42] The Judge found the elements of trespass were made out, on the basis of hisrejection of the appellant's claims that the structure amounted to a party wall, oralternatively that the respondents owned those parts of the structure that were locatedon their land.[43] On appeal, Mr Kohler challenged the finding of trespass on the ground thatthe respondents could not establish that the wall had not been built with the consent ofthe then owner of the relevant part of No 24. This argument assumed an onus onthe respondents, as plaintiffs, to establish that the wall was not constructed withthe consent of their predecessor in title. Mr Kohler suggested that the sequence ofevents in the 1880s led naturally to the inference that the then adjoining ownersco-operated in constructing the wall to take advantage of the natural features existingapproximately along the boundary line. We have rejected this argument in our earlieranalysis of whether those constructing the wall intended it to encroach acrossthe boundary as it has. Alternatively, Mr Kohler argued that there was not sufficientevidence for the respondents as plaintiffs to discharge the onus he attributed to themto establish the absence of consent by their predecessors in title.[44] Counsel did not cite any authority on who has the onus of proving the absenceor existence of consent in a claim for trespass. This Court has held that justificationfor the presence on a property as a defence to a tortious action for trespass has to bepleaded and proved by the defendant.18 There is also an analogy with the defence oflicence, where an alleged trespasser can defend a claim by proving that the actundertaken on the land was with the authority of a third person who had a lawful rightto possession.19 Accordingly, the onus in circumstances such as the present would beon the defendant to a claim for trespass to make out consent. On our earlier analysis,we consider it more likely that the wall was the initiative of the then owner of No 22,without the positive consent of the subdivider who still owned the adjoining emptysection.[45] In relation to para (b) of the definition of "wrongly placed structure",Mr Kohler submitted that an inference arose that the wall had been placed there onbehalf of, or in the interests of, the person who, in the 1880s, was the owner of whathas become No 24 so the exclusion in para (b)(i) applied. Mr Kohler would be onstronger ground than he was in the trespass analysis in contending that an applicantfor relief relying on the interpretation in (b)(i) of the definition has the onus to establishthat the structure was put on the affected land other than by, on behalf of or inthe interests of the person who was, at that time, its owner. We accept on the presentfacts that the respondents would need to discharge the onus of establishing thatnegative proposition to qualify for relief if they could only rely on the definition in(b). However, as we have found the definition in (a) made out, it is unnecessary todecide this point.[46] Had it been necessary, consistent with our analysis on the prospect of a defenceof consent to the claim in trespass, we would be inclined to accept that the respondentscould make out that the structure was placed there other than by, on behalf of or in18 Wilcox v Police [1995] 2 NZLR 160 (CA) at 163.19 See generally Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at[9.2.06(1)].the interests of the then owner of the land on the western side of the commonboundary. Where the motivation for the wall was to create a level platform for a houseand surrounding area at No 22, there is no apparent reason why the owner on the otherside of the boundary would consent to the wall being placed so as to materially reducethe width of their section.Nuisance[47] Mr Kohler treated the judgment as upholding the claim for nuisance andchallenged the grounds for doing so, essentially on the basis that the respondents couldnot make out that the appellant had unreasonably interfered with the use andenjoyment of their land. Further, that it was not a matter of interference becausethe existing rock was simply a fact.[48] We do not treat the judgment as making a positive finding of nuisance againstthe appellant. The judgment made parallel observations about the prospect of claimsin nuisance and trespass in the same paragraphs,20 and then made the observation:[68] As the plaintiffs themselves concede, the facts of this case fall morenaturally within the tort of trespass. However, nothing particularly turns onthe point. The plaintiffs assert the same facts and seek identical relief inrespect of both causes of action.[49] There is nothing in the remainder of the reasoning that depends on a finding ofnuisance and we do not treat it as relevant to the material findings under challenge inthe appeal.RemediesPrinciples[50] Subpart 2 of part 6 of the Act is a re-enactment of two provisions ofthe Property Law Act 1952 — s 129, as amended in 1957, and s 129A, as inserted in1963. Comments by the then Attorney-General, the Hon J R Marshall, on the 1957amendment bill's second reading suggest that a reason for the introduction of the newprovision was to ameliorate the harshness of the outcome in the converse situation20 High Court judgment, above n 1, at [64]–[67].where the owner of a valuable structure had innocently encroached by building part orall of a structure on someone else's land.21 The common law did not contemplatea solution in which the owner of the land encroached upon might be required totransfer the requisite part of the property encroached upon in return for compensation.The common law was similarly inflexible in the opposite situation where, as here,an encroachment is not useful to the owner of the land on which it encroaches.Once trespass is made out, the common law remedies for claimants would be damages,or an order for removal of the encroachment.[51] The scope of remedies available under the Act are extensive:325 Orders court may make(1) In granting relief under section 323 on an application under section322, the court may make 1 or more orders to the following effect:(a) requiring any land specified in the order to be vested inthe owner of the land affected by, or the land intended for,the wrongly placed structure, or in any other person withan estate or interest in either of those pieces of land:(b) granting an easement over any land specified in the order forthe benefit of the land affected by, or the land intended for,the wrongly placed structure:(c) giving the owner of the land affected by, or the land intendedfor, the wrongly placed structure, or any other person withan estate or interest in either of those pieces of land, the rightto possession of any land specified in the order for the periodand on the conditions that the court may specify:(d) giving the owner of the land affected by the wrongly placedstructure, or any other person having an estate or interest inthat piece of land, the right to possession of the whole or anypart of the structure that is specified in the order:(e) allowing or directing any person specified in the order toremove the whole or any specified part of a wrongly placedstructure and any specified fixtures or chattels from any landspecified in the order:(f) requiring any person to whom relief is granted underparagraphs (a) to (e) to pay to any person specified inthe order reasonable compensation as determined bythe court.(2) In an order under subsection (1)(a), the court may—21 (16 July 1957) 312 NZPD 856–857.(a) declare any land that is to be vested in any person to be freefrom any mortgage or other encumbrance; or(b) vary, to the extent that the court considers necessary, anymortgage, lease, or contract relating to that land.(3) An order under subsection (1) may be made on any conditionsthe court thinks fit concerning—(a) the execution of any instrument; or(b) the doing of any other thing necessary to give effect tothe order.(4) Part 10 of the Resource Management Act 1991 does not apply toa transfer or other disposition of land giving effect to an order ofthe court under subsection (1).(5) Section 348 of the Local Government Act 1974 does not apply to anyeasement granted in an order of the court under subsection (1).(6) An order under subsection (1) may be registered as an instrumentunder, as the case requires,—(a) the Land Transfer Act 2017; or(b) the Deeds Registration Act 1908; or(c) the Crown Minerals Act 1991.[52] The overriding consideration stipulated in s 323(2) of the Act is:The court may grant relief if the court considers it is just and equitable inthe circumstances that relief should be granted.[53] Then in s 324, a non-exclusive indication of potentially relevant considerationsis provided in the following terms:324 Matters court may consider in determining application for relief(1) In determining an application, under section 322, for relief undersection 323, the court may have regard to—(a) the reasons why the wrongly placed structure was placed onor over the land affected; and(b) the conduct of the parties; and(c) the extent to which any person has been unjustifiably enrichedat the expense of the person seeking relief because the ownerof the land affected has become the owner of the wronglyplaced structure.(2) Subsection (1) does not prevent the court from granting relief merelybecause the person seeking relief knew of the true boundaries orownership of the land affected at the time that the structure was placedthere, or at the time when that person became the owner of, oracquired an estate or interest in, the land affected, the land intended,or the structure.[54] Given the remedial purposes of these provisions in the Act, we considerthe legislature intended there to be a relatively low threshold for consideration of reliefonce the existence of a wrongly placed structure was established. The constraintapplying thereafter in making any of the range of orders provided for in s 325 is thatsuch relief must be just and equitable. The Judge was mindful of this approach torelief, citing this Court's decision in Guo v Bourke that the statutory jurisdiction isengaged where neighbours are unable to resolve disputes that have arisen.22 We adoptthe observation from that case:[12] The powers are remedial, and hence are typically expressed in broadterms. Generally, relief may be granted when the court considers it just andequitable, and orders may be made on such terms and conditions as the courtthinks fit. The courts are therefore empowered to make pragmatic butprincipled decisions in circumstances where, as here, neighbours are unableto resolve disputes that have arisen.[55] We incline to the view that the greater range of potential remedies provided forin s 325 of the Act was intended by the legislature to ameliorate the rigidity ofremedies for trespass at common law. Even if that was not a legislative purpose, weconsider that remedies in cases such as the present where trespass by a structure ismade out are likely to be addressed more appropriately if the Court has regard tothe wider range of remedies available under the Act.Factual findings[56] Here, the Judge appears to have approached his assessment of the appropriateterms for relief from the perspective that the respondents had made out their claim fortrespass. On that cause of action they presumptively could seek a mandatoryinjunction requiring the removal of the extent of the structure encroaching across22 Guo v Bourke [2017] NZCA 609, (2017) 19 NZCPR 168.the boundary, or alternatively damages in lieu, likely to be quantified by reference tothe cost of the removal of the encroachment.23[57] In the High Court, the appellant opposed relief being granted tothe respondents, arguing that it would be neither just nor equitable. Mr Kohler arguedthat when the respondents purchased No 24 in March 2012, professional persons intheir position ought to have identified the discrepancy between the driveway as formedand the legal boundary, had they made a reasonable extent of enquiry. Secondly, heargued against relief on the ground that the restoration of the accessway to the fullwidth of 3.05 metres was being pursued to optimise the chances of their obtainingconsent to more intensive redevelopment of the site under the new THAB zoning.Arguably, if they were granted a form of relief that achieved this, it would enable themto make substantially greater windfall profits out of redevelopment than they couldreasonably have contemplated at the time of purchase.[58] The Judge reviewed the evidence on the circumstances of the respondents'purchase of No 24.24 More thorough research prior to purchase could have revealedthe discrepancy. For example, aerial photos with the boundaries marked on themwould have signalled the extent to which the formed driveway appeared to deviatefrom the boundaries on the titles. (Those representations may not be completelyaccurate.) However, having accepted the evidence of the respondents that they werenot aware of the discrepancy at the time of purchase, the Judge held that the failure tohave done further research was not an omission disentitling them to relief.[59] The Judge made the point that it might equally have been expected ofMr Burton when he purchased in the 1970s to check that the retaining wall, which wascritical to the support of the western side of the house, was constructed within the legalboundary.25 The Judge also accepted that Mr Burton was unaware of the discrepancyuntil it was raised with him by the respondents.23 See generally Todd, above n 19, at [9.2.07(4) and 9.2.07(5)].24 High Court judgment, above n 1, at [72]–[90].25 At [89].[60] The Judge reviewed the dialogue between the parties once the boundarydiscrepancy was identified. In 2013, the respondents had advanced a proposal thata new concrete wall be built with its inside face running on the boundary and witha batter to a base that would allow an accessway between that base and the westernboundary of the accessway of 2.6 metres. To the extent that was a concession frominsistence on creating a usable accessway of the full 3.05 metres, the Judge consideredit should not preclude the respondents seeking relief that involved the creation ofan accessway for the full width of their legal title.[61] Although the Judge appears to have had some sympathy for the respondentsover their inability to agree satisfactory terms with Mr Burton, he concluded that therewas nothing in the conduct of the parties after the respondents had purchased No 24which had particular relevance in terms of whether it would be just and equitable togrant relief.26[62] In analysing the scope of potential orders the Court might make, the Judgereviewed the terms of s 325 of the Act.27 Mr Kohler argued that the scope of the ordersprovided for in s 325 did not go so far as to enable the Court to require a party toundertake construction works. That power is not made explicit in the terms ofthe section.[63] However, given the remedial purpose, we consider that s 325(1)(e) authorisedthe removal of those parts of the wall encroaching over the legal boundary. An orderrequiring that to occur can be made in terms of subs (3)(b) on conditions as the Courtthinks fit, requiring the doing of anything necessary to give effect to such an order.We are accordingly satisfied the Judge had the power to make orders in the termshe did.[64] The Judge also reflected on the options confronting the parties in achievingoutcomes sufficient to address the problems created by the encroaching wall.On the basis that the appellant would be meeting all, or a substantial part, of the costsof reconstructing a wall that complied with the legal boundary, the Judge was mindful26 At [91].27 At [110]–[124].of the additional costs likely to be incurred in carrying out such works in a mannerthat preserved Mr Burton's existing structure. Mr Burton was clear in his evidencethat he was attached to the house, regardless of its condition, and intended to continueliving in it. The Judge was also mindful that the real value of No 22 is asa development site so that, if confronted with the obligation to removethe encroachment, Mr Burton should not be precluded from rationalising the cost ofwork to do so by recognising that the existing house has reached the end of itseconomic life.[65] The Judge found it was not a matter of economic necessity that Mr Burtonremain in the house.28 The evidence established that he is a relatively wealthy manand has, at least in terms of assets, resources to enable him to live elsewhere whilstworks were being done to remove the encroachment.[66] The Judge dealt with relief in the following terms:[128] I grant the following relief. In doing so I define the word"encroachment" to mean all that portion of the man-made structure separatingnumbers 22 and 24 Tawari Street, Mt Eden, which retains material behind it,[29]including all material of whatever nature located between the western face ofthe structure and the boundary line, but with no obligation on the part ofthe defendant to remove the natural basalt footing of the structure (where suchexists) or any other natural basalt outcrops or formations located at or abovethe level of the access way on number 24.(a) An order declaring the encroachment to be a wrongly placedstructure for the purposes of pt 6 sub-pt (2) of the PropertyLaw Act 2007.(b) An order directing the defendant to remove the encroachmentby 31 March 2020 and in so doing to carry out such furtherstabilisation works (either in accordance generally withthe methodology identified by the plaintiffs' expert,Mr G N Wood, and appended to his brief of evidence datedFebruary 2019 as Schedule A or in accordance with such othermethodology as is approved by a registered structural andgeotechnical engineer and is tabled with the Court by 20 July2019), such order being with the purpose and effect ofensuring that neither the house located at number 22 TawariStreet, nor any part of the land on which it is situated, willcollapse or slip on to the plaintiffs' property.28 At [108].29 Corresponding generally to where it sits beneath the western exterior wall of the house located onnumber 22. No order is sought in respect of the "freestanding" wall at the southern end ofthe boundary. The plaintiffs can in due course either relocate that onto the boundary or remove it.(c) An order that the plaintiffs permit the defendant to havereasonable access to their property for the purposes ofcarrying out of the removal and any further stabilisationworks.(d) An order that the defendant give reasonable advance notice tothe plaintiffs of the date of commencement of the works andexpected duration.(e) An order that the costs of the removal and stabilisation worksbe borne by the defendant.(f) In the event the defendant adopts Mr Woods' methodology, orlike methodology involving construction of a new reinforcedconcrete wall with western face on the boundary of numbers22 and 24 Tawari Street, I reserve leave to the defendant toapply for further orders recognising any or all of:(i) the costs of removal of any natural basalt outcrops orformations;(ii) betterment accruing to the plaintiffs (either generallyor in terms of driveway establishment).(g) An order that the plaintiffs grant to the defendant an easementto accommodate the foundations of any new retaining wall —such easement to include an obligation on the defendant andits successors in title to maintain the wall and its foundationsand a right of access to the defendant and its successors forsuch purposes.(h) An order granting leave to the parties to apply for ancillaryrelief in accordance with para [127] hereof.(i) In the event of noncompliance with order (b) hereof, andwithout derogating from any other rights or remediesavailable to them, I grant leave to the plaintiffs to apply forsuch alternative relief as specified by them in writing tothe defendant's solicitors a minimum of 14 days prior toapplication.[67] That paragraph had been preceded by the following observations, as referredto in [128(h)]:[127] In a case such as this, where reluctantly the Court has to acceptthe inevitability of some supervisory role, and where all possiblecontingencies associated with the removal of the encroachment cannot beaccurately foreshadowed, I consider it also prudent to reserve leave tothe parties to apply for any ancillary orders and directions which may beconsidered necessary. Clearly, however, that is not an invitation to revisit anyof the judgment's essential findings and conclusions.Challenge on appeal[68] Mr Kohler submitted that the discretion under s 325 of the Act had not beenexercised in a just and equitable way and that the Judge had failed to give any oradequate regard to the following factors:(a) the retaining wall has existed in its present form for more than130 years;(b) the evidence did not establish that the wall was built wrongly bythe appellant's predecessor in title;(c) Mr Burton did not build the structure and came to the Court "entirelyinnocent";(d) it was the respondents' predecessor in title rather than the appellant whocreated the access difficulties of which they currently complain, namelythe inadequacies of the survey when the present access to No 24 wascreated in 1957;(e) the respondents could easily construct a driveway of 2.4 metres wideby undertaking modest works on their own property, but now seeka wider driveway because of the "opportunity to make unexpected(at time of purchase) windfall profits as a result of the AucklandUnitary Plan";(f) Mr Burton will enjoy no benefit, there being no windfall benefit to himas a result of the Auckland Unitary Plan;(g) the respondents must have known of the access restrictions at the timeof their purchase or they were extremely negligent in not discoveringthem;(h) the court orders will require the wall to be moved so that it is entirelyon the appellant's property, imposing an on-going burden on Mr Burtonin order to maximise the respondents' driveway width; and(i) Mr Burton was, prior to and during the High Court hearing, prepared tocompromise but by the time of the hearing the respondents would notagree to anything less than the full width on terms where they refusedto contribute to the costs of the work required.[69] The evidence was that the costs of reconstructing the wall in the wayrecommended by experts retained for the respondents would be some $400,000.[70] Mr Quinn submitted that because the appellant was challenging the exercise ofa discretion on this aspect of the appeal, the appellant had to show that the Judge erredin law or principle, took into account irrelevant considerations, failed to take intoaccount relevant considerations, or was plainly wrong.30 Mr Quinn disputed thatthe factors listed by Mr Kohler were overlooked by the Judge. Arguably, they wereall reflected either explicitly or impliedly in the Judge's reasoning.[71] Mr Quinn responded to each of the points raised by Mr Kohler onan assessment of just and equitable terms of relief. He submitted the evidence didestablish the wall had been built wrongly by the appellant's predecessor in title becauseit encroached across the then recently established legal boundary in the mid-1880s.Mr Quinn disputed that Mr Burton could claim to be entirely innocent because,although he did not create the original encroachment, he has continued it and, afterbeing made aware of it, refused to remedy it, continuing to make use ofthe encroaching structure by relying on the support it provides for his house.Mr Quinn also disputed that the evidence had established the feasibility of creatinga 2.4 metre wide driveway with only modest works. Rather, a driveway of that widthwould still require removal of a substantial part of the wall. Further, reflectingthe Judge's reasoning, Mr Quinn submitted that the Court should not approachremedies on a basis expecting the respondents to compromise on the quality of theiraccess. The respondents' evidence was that, whilst planning conditions were not rigid,30 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].the greater the reduction from an accessway of the full 3.05 metres width, the lesslikely they were to obtain the necessary consents for whatever development they settleon for No 24.[72] As to the absence of any benefit for the appellant, the consequence ofthe change to the zoning seems likely to be reflected in the land values of bothproperties so it would be a matter of Mr Burton's election not to change the manner ofuse of his property that resulted in him achieving no financial benefit. Mr Quinnquestioned the relevance of the change in planning provisions for the properties,because the extent of the encroachment over the respondents' legal accessway wouldalso have prevented their entitlement to develop the site under the planning regimeprior to the introduction of the Auckland Unitary Plan.[73] Mr Quinn disputed that relocating the wall so that it was confined toMr Burton's property imposed an on-going burden on him. As the Judge had found,the wall enabled use of Mr Burton's land by creating a level platform for his houseand front garden.[74] As to the reasonableness of the parties' conduct since the problem had beenidentified, Mr Quinn referred to the evidence of Ms Johnson that when the problemfirst came to light, they were actually prepared to pay for the wall. However, bythe time of the hearing, the money they would have spent on the wall had been spenton legal fees because of Mr Burton's uncooperative attitude.Our assessment[75] Assessing the financial impact of the orders, it is appropriate to assume thateffecting removal of the extent of encroachment of the wall in a way that continues toprovide support for the western side of Mr Burton's house is likely to cost in the regionof the estimates adduced in evidence for the respondents. Since the judgment,Mr Burton has not proposed any alternative mode of effecting the removal of theencroachment, as it was open for him to do in terms of the High Court orders.Mr Kohler's parting shot was that Mr Burton would live with re-alignment of the wallto create a 2.6 metre wide accessway for No 24, without addressing who would payfor it. That indication does not match the overall effect of the evidence Mr Burtongave in re-examination on this point and then, at the end of his evidence, in answer toquestions from the Judge. In the course of a longer answer in re-examination,Mr Burton had said:I feel comfortable that I could cope with, through consulting engineers, ata reasonable cost, a 2.8 metre wide driveway. I think the extra 200 millimetreswhich I suspect strongly the council will not require, will be significantly moreexpensive.[76] Questioned by the Judge after that answer, Mr Burton referred both todriveways of 2.6 and 2.8 metres width, and deflected questions as to who heconsidered should pay for such work.[77] The inclusive list of matters the Court might consider in determining reliefunder s 324 of the Act is relatively short and expressed in general terms. Whilst thelist is relatively confined, we do not consider that it requires the exclusion of anymatters arising in a particular case, where the Court recognises such matters asaffecting the evaluation of a just and equitable form of relief.[78] As to the consideration under s 324(1)(a) of the reasons why the wronglyplaced structure is where it is, we agree with the Judge's factual analysis that the wallwill have been placed where it sits at the initiative of the then owner of No 22, and forthe benefit of that property in creating a level platform for a house and garden. This isnot a case in which the placement of the wall encroaching to the extent it does has anyequivalent advantages for the owners of No 24.[79] In terms of the conduct of the parties (s 324(1)(b)), there will be circumstancesin which conduct of one or more parties prior to the structure being identified aswrongly placed will be relevant to assessing the terms of just and equitable orders.Equally, the conduct of the parties once the extent of encroachment of a wronglyplaced structure has been identified may well influence an assessment of the just andequitable forms of remedy. Here, the conduct of both parties prior to discovery ofthe extent of encroachment is entirely unremarkable, so it is a neutral factor inconsidering what might be just and equitable relief. We agree with the Judge that anydeficiencies in the respondents' pre-purchase appraisal is not sufficient to count inthe balance against them in determining just and equitable relief.[80] With regard to the standard of conduct of the respective parties sincethe encroachment was identified, there is scope for acknowledging the somewhatobstructive attitude of Mr Burton to the respondents' attempts to achieve a solution.On balance, we accept that it was able to be treated as a neutral feature ofthe circumstances, particularly as the Judge treated lack of co-operation in the conductof the proceedings as a factor in awarding a net 10 per cent uplift in the level of coststo which the respondents were entitled.31[81] Treating both current owners as blameless for the encroachment is, inthe particular circumstances here, not an end of the analysis on establishingresponsibility for an expensive problem that needs a cure. We accept Mr Kohler'ssubmission that responsibility for the current problem can be attributed, at least insome measure, to the respondents' predecessor in title at the time of the 1957subdivision creating the current accessway into No 24 as a back section. There is nosufficient explanation for why the surveyor completing plans for that subdivision didnot raise the issue that the accessway being created by adoption of the 1882 boundarybetween what are now Nos 22 and 24 was not practically usable for vehicular access.Detailed plans prepared by the surveyor at the time endorse a material extent ofencroachment, thereby creating the problem that relief in the proceeding is intendedto cure.[82] Section 324(1)(c) contemplates the unjust enrichment of the owner of the landon which a wrongly placed structure is located. That does not apply here, wherethe owner of the land encroached upon wants the structure removed. However, thatdoes not preclude a broader assessment of the financial consequences of the stepsneeded to make wrongly placed structures conform with the legal boundaries ofthe affected properties in the converse situation as arises here.[83] We do not accept Mr Kohler's argument that the subsequent introduction ofthe Auckland Unitary Plan, allegedly creating an opportunity for windfall profits forthe respondents, should dictate the attribution of the cost of removingthe encroachment. In 2012, the prospect of resource management provisions enabling31 Costs judgment, above n 3, at [12]–[19].denser residential buildings in such suburbs may well have been a reasonableproposition. The respondents point out that resource consent for any new developmentat No 24 will require a substantially wider accessway than presently exists.The essence of Mr Kohler's concern is that correcting the encroachment presentlyappears to have substantial upside for the respondents, and none for the appellant.[84] Mr Burton's subjective approach to the problem reflects a particularperspective: he wants to continue living in his house as it presently is, and perceivesno improvement in the value of the property for his own purposes from paying fora re-alignment of the wall to remove the encroachment. However, once the extent ofthe encroachment of the retaining wall needed for a flat building platform on No 22was identified, the potential obligation to remove the encroachment by re-aligningthe wall became a liability that would affect the value of No 22.[85] The economically rational outcome for No 22 may well be to recognise thatthe obligation to re-align the wall brings an end to the life of the present house. Were itto be demolished, the cost of the remedial work would be reduced and the value ofthe land as a redevelopment proposition would be increased by the extent to whichthe contingent liability of having to remove the encroachment has itself been removed.[86] Notwithstanding the lack of clear evidence on the impact of removal ofthe encroachment on future values of Nos 22 and 24, we see this factor asa consideration in this case that is material to producing a just and equitable outcome.The effect of the Judge's orders would be to require Mr Burton to bear all ofthe substantial costs of removing the encroachment, except for the part of the costsincurred in removing the natural outcrops of basalt that occurred along that line, plusan allowance for the betterment that may be reflected in the state of the respondents'accessway after the work has been completed.[87] The following considerations influence a determination on what is just andequitable terms for removal of the encroachment in the present case:(a) the encroachment has existed for 130 years;(b) no predecessor in title to what is now No 24 has ever taken issue withthe encroachment;(c) the predecessor in title of No 24 should have been put on notice as tothe encroachment when the survey for the subdivision was undertakenin 1957, at which point the encroachment could have been mitigated ata much more modest cost;(d) that opportunity arose before Mr Burton purchased No 22 and neitherof the current owners can be attributed with responsibility forthe encroachment; and(e) on the present state of affairs, the respondents will be substantiallyadvantaged by removal of the encroachment, whereas the remedialworks will be disruptive for Mr Burton and will not enhance the valueof his property, at least whilst he maintains its present use.[88] In light of these factors, we are satisfied that the Judge's formula did notachieve a just and equitable outcome. We consider that the just and equitableallocation of liability for the works, however they are to be done within the ordersmade by the Judge, should take into account each of the considerations we have justlisted. We accordingly allow the appeal to the extent of altering financialresponsibility for the works that will be needed. The Judge separately allocated tothe respondents the cost of removal of the parts of the encroachment that werenaturally occurring prior to construction of the wall, plus a contemplated allowancefor betterment in terms of the improved nature of the accessway it provides for them.32We are not satisfied that the works will necessarily result in betterment forthe respondents, but depending on the form in which the works are carried out,provision for them to be liable for the extent of costs for achieving betterment shouldbe recognised. After deduction of those sums, the remaining cost ought then to bedivided equally between the appellant and the respondents.32 It is our assumption that it will be efficient for contractors clearing the encroachment to removethose parts naturally occurring prior to the construction of the wall as part of the same scope ofworks, and to be able reasonably to apportion the costs of the two components of the work.[89] Subject to that change, and the slippage caused by pursuit and resolution ofthe appeal, we consider the remainder of the orders as crafted by the Judge are justifiedand do provide a solution that is just and equitable between the parties. We direct thatthe dates of 20 July 2019 and 31 March 2020 in order (b) are to be extended to20 March 2020 and 30 October 2020 respectively.[90] The terms of orders (e) and (f) are to be replaced with the following:(e) The costs of carrying out the works are to be allocated as follows:(i) the respondents/plaintiffs are to be liable for the cost of removalof the parts of the encroachment that were naturally occurringprior to construction of the wall;(ii) the respondents/plaintiffs are to contribute to the overall coststo the extent they achieve betterment in the improved nature ofthe accessway the works will provide; and(iii) subject to deduction of the sums payable bythe respondents/plaintiffs under (i) and (ii), the remaining costsare to be divided equally between the appellant andthe respondents.Costs[91] Mr Kohler foreshadowed the need to re-assess High Court costs in the eventthat the appellant succeeded. We are not inclined to revisit costs in that Court.The justification for the costs orders made remains.[92] Given the partial extent to which the appeal has succeeded before us,we consider that both parties to the appeal ought to bear their own costs in this Court.Result[93] The appeal is allowed in part.[94] The finding that the wall constitutes a wrongly placed structure is upheld.[95] The terms of relief that is just and equitable are amended in the respects set outin [89] and [90] of this judgment.[96] The appeal is otherwise dismissed.[97] The costs orders in the High Court remain unaltered.[98] There is no order as to costs in this Court.Solicitors:Ellis Gould, Auckland for AppellantHeimsath Alexander, Auckland for RespondentsAppendix 1Appendix 2