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

ZHENG and HIBISCUS INDEPENDENT TRUSTEES 2008 LTD as trustees of the ZHENG FAMILY TRUST vLYNDON, LYNDON and ARCHER [2023] NZHC 2679 [27 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-044-1425[2023] NZHC 2679BETWEEN LU ZHENG and HIBISCUSINDEPENDENT TRUSTEES 2008LIMITED as trustees of the ZHENGFAMILY TRUSTFirst PlaintiffsZHENG LU HOLDINGS LIMITEDSecond PlaintiffAND DAVID JULIAN RICHARD LYNDON,JENNIFER ROBYN LYNDON and LISAMICHELLE ARCHERDefendantsHearing: 24, 25 (site visit), 26, 27 and 28 April 2023Appearances: P J Dale KC for the PlaintiffsS J Tee for the DefendantsJudgment: 27 September 2023JUDGMENT OF GAULT JThis judgment was delivered by me on 27 September 2023 at 3:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr P J Dale KC, Barrister, AucklandMr J M Skinner, Skinners Law, AucklandMr S J Tee, Morton Tee Ltd, AucklandTABLE OF CONTENTSFactual background [4]Issues [44]Liability in nuisance for root encroachmentApplicable 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,1the plaintiffs claim damages for nuisance in relation to a row of poplar trees on thedefendants' driveway which runs along the plaintiffs' boundary near to the plaintiffs'commercial greenhouse.2 For some time, the parties focused on shading from thepoplar trees. However, it is now common ground that the tree roots have encroachedonto the plaintiffs' land and into the greenhouse. The plaintiffs say the tree roots havecaused material damage to their greenhouse tomato crops by reducing the level ofproduction. They pleaded loss of profits of approximately $1.1 million, but at trial theclaimed loss reduced to $712,500 (plus interest).[2] The defendants say that the presence of minerals is the explanation for anyreduced level of production, that the plaintiffs' business is not viable in any event andthat the plaintiffs' records are unreliable. The defendants also raise affirmativedefences and a counterclaim for trespass when trees were cut back in 2016.[3] The evidence included various allegations and counter-allegations ofunneighbourly conduct which it is unnecessary to address in order to deal with thepursued 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) arethe current trustees of the Zheng Family Trust, which was established on 1 September1996. The second plaintiff, Zheng Lu Holdings Ltd (ZLH), was incorporated on22 August 1996 and is 10% owned by Mr Zheng and 90% owned by the Zheng FamilyTrust.1 The proceeding was initially commenced in October 2016 by Mr Zheng and Zheng Lu HoldingsLtd against Mr Lyndon in the District Court. The plaintiffs' application for removal into this Courtwas 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 LawAct 2007.[6] On 15 November 1996, the then trustees of the Zheng Family Trust acquired a10 acre property at 325 Postman Road, Dairy Flat (325). A condition of purchaseallowed the previous owner to lease five acres with a right to subdivide 325 within thenext five years.[7] Between 1997 and mid-1998, the trustees constructed a large new greenhouseon 325 (81m x 50m, and 3.5m high to the gutter at the lowest point) with its northernside approximately four metres from 325's northern boundary.3[8] The trustees have leased the greenhouse to ZLH for the purpose of a substantialtomato growing business since its construction – except during the period from March2000 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 otherfamily 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 pesticideand fungicide free but grows in a soil-less growing medium comprising a proprietarycombination of composted and natural materials (sawdust and pumice). The growingsystem was described as a container growing system albeit that the container is a longchannel along each row. The container channel is separated from the ground belowby plastic sheet. Water and nutrients are fed into the channel by a specialised irrigationor fertigation system that incorporates underground components. Unused water andnutrients are recirculated for subsequent use. In this sense, the operation ishydroponic.[11] In 2002, the subdivision of 325 was completed and the neighbouring propertyat 327 Postman Road (327) was created.[12] In 2003, the owner of 327 planted a line of poplar trees down the south side ofthe driveway on the northern boundary of 325. The poplar trees were planted close to3 This was permitted at the time whereas under current zoning requirements the greenhouse wouldhave 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 distanceof 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 seeroots 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 theLyndons' perspective, the poplar trees provided a privacy screen and formed anattractive entrance to their property – before the driveway turned and went up to theirresidence at 327. By 2010, the poplar trees were likely more than 6m high. Also, onthe northern side of 327's driveway beyond a grass strip, a row of willow trees stoodon 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 thatMr Zheng raised root encroachment with the Lyndons in 2011. Following the 2011discussion about tree height, on 19 and 20 July 2011 Mr Zheng and two employeescut 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 discussionsbetween 2011 and 2014 about cutting the trees shorter, without agreement, and that byMay 2014 the trees had grown to around 19m high. Mr Lyndon said that they allowedMr Zheng to trim the trees at his discretion on a regular basis between 2011 and 2014and there was no issue. He disputes that the trees grew to 19m. Photographs duringthis period show the trees well above 5m but not as high as 19m. Based on a 2012Google Earth photograph, Mr Lewthwaite (one of the plaintiffs' experts) estimated thepoplar trees to be 7-8m high at that time. The Lyndons' arborist, Mr Meban, said theywere 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 thathigh by 2014.[18] Mr Lyndon acknowledged that he became concerned that if the Lyndons left itfor Mr Zheng to trim the trees at his discretion, he would trim them too low so theywould 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 rootencroachment.[20] On the evening of 26 August 2014, Mr Zheng spoke with Mr Lyndon aboutcutting the trees back and also said that roots were getting in the greenhouse.4 Duringthat conversation, Mr Lyndon said he understood the trees affected Mr Zheng'sbusiness. Mr Zheng said in evidence they agreed to cut the trees back to 0.3m atMr Zheng's expense (including annual pruning) whereas Mr Lyndon said they onlyagreed to cut back trees by the greenhouse and only to 1m. It is more likely there wasa genuine misunderstanding at least as to height – the discussion was rushed and thetwo men had some difficulty understanding each other. Mr Zheng accepted that hedid not ask Mr Lyndon to do anything else with the trees (apart from cutting themback).[21] Mr Zheng said that late the same evening Mr Lyndon visited with a writtenagreement for Mr Zheng to sign, which he did. This agreement provided thatMr 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 Lyndonsaid they were devastated that all 121 trees had been coppiced to that height. They saidthey had prepared the written agreement on 26 August 2014. Mrs Lyndon agreed thatMr Lyndon had visited Mr Zheng later the same evening but not as late as Mr Zhengsaid. Mr Lyndon said he only discussed the agreement with Mr Zheng and had him4 Mr Zheng's son recorded the conversation on his phone. The defendants initially objected to theadmissibility of the recording but Mr Lyndon ultimately accepted it was accurate.sign it after the trees had been cut down to prevent any recurrence ormisunderstanding. Exactly when Mr Zheng signed the agreement is unclear and doesnot matter. It is common ground there was an agreement. It does not specify theheight of the trimming but 300mm is the height referred to in the arborist's invoicedated 27 August 2014 paid by ZLH on 28 August 2014 and there is no other evidenceof any complaint by the Lyndons.[22] It is common ground that after coppicing, the trees grew with spindly branchesand out rather than straight up. Mr Lyndon said the trees took at least two years togrow back to 4m.5[23] The parties agree that between August 2014 and June 2016 they operated underthe terms of the agreement.[24] Mr Zheng said that during this period he began to remedy the root issue everytime he changed his crops. He said he removed roots that he saw but doing so was adifficult and slow process. He said it was not simply a matter of replacing the growingmedium in the planting channel – the most difficult thing was to remove the rootsoutside of the plastic lining. He said that in 2014 to 2016 this required a minimum ofthree people for two to three weeks per row.6 They moved the growing medium toone side of the channel, lifted the plastic lining and removed the roots and affectedsoil. They placed back the plastic lining and weed mat, and added an extra layer ofplastic cover as the channel had become wider. Then they moved the growing mediumto the other side of the channel. They also needed to add extra growing medium whichtook another week. But he acknowledged that during this period of trying to remedythe root problems the growing medium was not replaced.[25] On about 1 June 2016, an employee of the plaintiffs misunderstood instructionsand 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 in2015.6 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 toMr Lyndon proposing a meeting to negotiate a new agreement for the maintenance ofthe trees, failing which they would apply to the District Court for orders overturningthe 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 profitfrom decreased production due to the trees blocking the sun.[27] On 2 August 2016, the Lyndons' lawyer responded denying the agreement wasunconscionable, referring to compensation for the attack on the trees in breach of theagreement and treating the agreement as being at an end.7 Instead of a meeting, theyset out a non-negotiable proposal whereby they would trim the trees once a year to 4mat Mr Zheng's cost.[28] Mr Zheng acknowledged that at that time he thought the problem with rootshad been resolved because he had dug them out. He accepted the Lyndons must havealso thought the root problem had been resolved, and that he did not ask the Lyndonsto remove roots as opposed to removing or trimming the trees.[29] On 28 October 2016, Mr Zheng and ZLH commenced proceedings againstMr Lyndon. The statement of claim alleged that the trees had a direct impact on theproductivity of the company by blocking sunlight from the greenhouses affectingtomato growth (causing loss of profits estimated to be in the hundreds of thousands)and that dropping foliage accelerated deterioration of, and caused damage to, thegreenhouses (causing greenhouse losses estimated to be at least $30,000).8 Aside fromdamages for nuisance, the claim sought an order that the trees be removed. A secondcause of action under the Property Law Act 2007 (PLA) also alleged damage to thedrainage system inside the greenhouse caused by the tree roots, and sought the samerelief.[30] Mr Lyndon denied there was an actionable nuisance and opposed removal ofthe trees.7 Nothing turns on the cancellation of the agreement save to note that during the periodthe 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 Mebanin 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 offerwhereby the poplar trees could be replaced by another type of tree notto 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 theirarborist would remove the trees at Mr Zheng's expense and each partywould 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 restrictthe 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 thatfollowed 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 depositthe pruning over the fence.2) Dig a trench 1-2 m deep on his side of the fence, and cut the rootsof the willow [sic] treesThe result will (inevitably) be that the first strong southerly wind will uprootand deposit the trees on Mr Lyndon's driveway.[34] This reference to cutting the roots has less significance than suggested for theLyndons. Mr Zheng was wise not to cut the roots in order to make the trees fall ontothe 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 damagingthe greenhouse crops. Dr Nichols was asked to report on shading and did not consider9 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" assubmitted.[35] Also in November 2018, a further amended statement of claim included, as aparticular of the alleged damage to the drainage system inside the greenhouses causedby the tree roots, that the tree roots had penetrated underneath the greenhouses andhad interfered with the greenhouses' water recycling drainage system which formedpart 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 photographedMr 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 factand expert evidence for the plaintiffs) expressed concern about Mr Zheng's loss ofproduction through poplar root competition. In June 2020, the plaintiffs' counselwrote to the defendants' counsel indicating that he had asked for some further analysisto be undertaken with particular reference to the root encroachment which was evidentfrom his inspection.[39] On 17 August 2020, in relation to this alleged root encroachment, thedefendants' counsel invited Mr Zheng to dig a trench to cut any roots at the boundaryand 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 rootencroachment.[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 thatwhen the trees were being removed Mr Meban, the defendants' arborist, told him thatin his experience, poplar roots can grow over 50m and that he bet that if Mr Zhengwent 30m inside his greenhouse, he would definitely find poplar tree roots. Mr Mebandenied saying that but acknowledged that they went into the greenhouse and foundroots; he said they could have been of tomatoes. Also, although Mr Meban quoted todig the trench in August 2020, he said he wasn't sure what it was for and wasn't therewhen 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 thiswas easier as the plastic lining did not need to be moved. It is unclear to what extentthe growing medium was replaced at this time. Poplar sprouts were seen in thegreenhouse 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 timeavailable 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 allegesthat the trees affected tomato growth and the productivity of ZLH. Loss ofproductivity was claimed as a consequence of shading and root encroachment.10At trial, the plaintiffs pursued the claim on the basis that root encroachment was thecause of the loss, rather than shading (which is accepted to result from an ordinary andnatural use of the land).11 The plaintiffs did not pursue their claim for physical damageto 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); and10 Although paragraph 22 of the fourth amended statement refers to tree height, paragraphs 17, 18and 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 encroachmentApplicable principles[46] Nuisance is a well-established tort and there was a fair degree of commonground as to the applicable principles. It is common ground that liability for rootencroachment may arise irrespective of whether growing the trees is an ordinary andnatural 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 actualmaterial damage (sometimes referred to as detrimental consequence).13[47] However, there were important differences between the parties, including as towhether liability in nuisance for root encroachment requires knowledge of the specificcause of damage. Mr Dale KC, for the plaintiffs, accepted that liability in nuisancedepends on an unreasonable interference with the plaintiffs' land, that is interferencewith the right to the use or enjoyment of an interest in that land, but he relied on thePrivy 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 thenatural way of trees whose roots penetrate into adjoining property and therebycause and continue to cause damage to buildings upon that property, he isliable 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 rootencroachment that appear consistent with a strict liability or absence of fault approachonce material damage is caused.15[49] Mr Tee, for the defendants, relied on the Court of Appeal's recent decision inYoung v Attorney-General,16 and submitted that liability in nuisance is not strict butinstead subject to a measured duty to do what was reasonable in the circumstances to13 Woodnorth v Holdgate [1955] NZLR 552 at 554 (SC); Roud v Vincent [1958] NZLR 794 (SC) at794; 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 isno liability unless and until a defendant breaches its measured duty.[50] I consider the appellate authorities may be reconciled on the basis that theposition depends on whether the defendant has created or continued the nuisance.Where a defendant has created the nuisance, taking reasonable care is no defence.17However, where the nuisance has been created naturally or by an unauthorised thirdparty, the defendant's liability depends on having continued or adopted the nuisance.18Continuing a nuisance occurs where there is a known risk of damage and also wherethe 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 liabilitydespite the trees having been planted by a previous owner, liability arose because thedefendant knew that the roots had long been damaging the wall and drains in theadjoining property.20 Knowledge of the damage was the basis for the Court of Appealdecision too, which the Privy Council upheld.21[52] Also, although in Nottingham Forest Trustee Ltd v Unison Networks Ltd22the Court of Appeal stated that a party responsible for creating a state of affairs thatunreasonably interferes with a neighbouring property will be strictly liable for the17 See, for example, Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 (HL) at 638 per EarlLoreburn, 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 someoverriding and free-ranging assessment by the court of the respective reasonableness of each partyin the light of all the facts and circumstances; the requirements of the common law as to what aclaimant must prove, and what will constitute a good defence, themselves represent in the roundthe law's assessment of what is and is not unreasonable conduct sufficient to give rise to a legalremedy: 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 perLord 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 NZLR24 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 ofAppeal 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 BeeverThe 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 reasonableprecautions were taken to prevent the activity from causing an unreasonableinterference,23 the Court also stated that the case involved a "continuous or recurringemanation" from Nottingham Forest's land as a result of trees planted by NottinghamForest,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 thedefendants purchased. The defendants did not create the nuisance and strict liabilityfor 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 beidentified, 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.27He submitted the defendants knew of the allegation of damage to the drainage systeminside the greenhouse caused by tree roots and elected to run the risk by ignoring theproblem whereas they should have considered the value and importance of the treesrelative 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 ofproduction in June 2020 and then acted reasonably. He submitted the defendants didall that was asked of them in earlier years – they allowed the trees to be trimmed – andwere entitled to assume any issues were resolved by the agreement reached in August2014 at least until June 2016.[55] Accordingly, two further questions arise. First, what injury or damage must beforeseeable for a measured duty to arise? Secondly, when did the defendants know orwhen 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 aforeseeable one. The approach to foreseeability is the same in nuisance as in23 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 wasforeseeable, not necessarily the specific injury itself.29[57] Here, as Mr Tee accepted, the injury for which damages are claimed is loss ofproduction in the greenhouse. That is the kind of injury that must be foreseeable – notthe specific injury claimed to be due to the poplar trees' root encroachment (ratherthan shading).Was the injury reasonably foreseeable?[58] Turning to the second question, the defendants did not know there was a riskof damage before Mr Zheng raised the issue of tree height with Mr Lyndon inmid-2011. Nor ought they to have known. It is unclear when loss of production wasfirst 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 thedefendants 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 forloss of production are sought for that period. That was the period during whichMr Zheng carried out the first round of remedial work removing roots but there is noevidence he raised this with the Lyndons.[59] In July 2016, the letter from Mr Zheng's lawyer noted the trees had caused aloss of profit from decreased production – albeit due to the trees blocking the sun. It issurprising this letter did not refer to the remedial work but, consistent with theapproach taken in the proceeding, this may be because the work was done by familymembers at no paid cost.[60] In late October 2016, legal proceedings were commenced alleging the treeshad a direct impact on the productivity of the company by blocking sunlight from thegreenhouses affecting tomato growth causing loss of profits estimated to be in the28 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 Jand Nottingham Forest Trustee Ltd v Unison Networks Ltd [2021] NZCA 227, [2021] 3 NZLR823 at [65].hundreds of thousands.30 Root damage was also raised in the proceeding albeit onlyin the context of damage to the drainage system in the greenhouse. Mr Lyndonacknowledged that he knew that allegation was being made. The claim soughtremoval 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 eventhough root damage was a relatively minor focus in correspondence and the PLApleading at that time (and until June 2020). From at least late October 2016, theLyndons were on notice as to the risk of damage and the proceeding sought removalof 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 inSeptember 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 thedefendants' conduct needs to be seen in the context of the plaintiffs' own lack of focuson root damage during the period between 2016 to 2020. However, reasonableness isto be assessed objectively and I will address any responsibility the plaintiffs may havewhen I consider the affirmative defences such as contributory negligence below.[63] I do not accept the defendants' submission that reasonableness is to be assessedby reference to current zoning requirements which would require a new greenhouse tobe built 12m from the boundary. The defendants knew the location of the greenhousewhich was built in a permitted location at the time. In any event, the poplar rootsencroached considerably further than 12m.[64] I consider the Lyndons were dismissive of Mr Zheng's loss of production claimeven when proceedings were commenced in 2016, and did not take the risk of damageseriously. Mr Lyndon said trust had broken down by then because all 121 trees werecut down. As indicated, however, that was not correct since what happened in 201630 Particulars of the alleged loss of production were not provided until briefs of evidence were servedmuch 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 untilNovember 2020 (other than as part of a 2018 settlement offer proposing each partyforego claims for damages) even though they say the trees were ruined when coppicedin August 2014. Mr Lewthwaite, a horticultural expert called by the plaintiffs,considered that once the issue of root encroachment became evident, the trees shouldhave been removed immediately.[66] Overall, I consider the defendants breached their measured duty from lateOctober 2016 until 17 August 2020 when they invited Mr Zheng to dig a trench to cutany roots at the boundary.Causation[67] As indicated, it is now common ground that tree roots have encroached ontothe plaintiffs' land and into the greenhouse. There are 30 rows in the greenhouse whichrun parallel to the northern boundary. Roots have been located as far as row 12 in thegreenhouse, some 35m from the boundary and 30m into the greenhouse.[68] Mr Zheng said that ZLH was unable to utilise approximately eight rows on thenorthern 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 orthrough the gap of the weed mat where either was damaged or worn out, or by growingon the surface. I accept this amounted to material damage.[70] Even so, the evidence indicates that concern about shading received moreattention than root encroachment until 2020. As well, there was a sharp conflictbetween the experts as to any impact on tomato production. The plaintiffs' threehorticultural experts (Mr Ivicevich, Dr Nichols and Mr Lewthwaite) considered thatroot encroachment was a cause of the plaintiffs' loss of income. Dr Nichols consideredit was the major cause. However, the defendants' horticultural expert (Dr Nederhoff)said that minerals in the plaintiffs' growing medium and other growing practiceswithin 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 theplaintiffs' records. This was addressed by the accounting experts. Some of theirevidence weighed in on causation as well as calculation of loss. As ZLH's salesrevenue was also relevant to the horticultural experts addressing causation, I deal withcriticism of the records next.[72] Before doing so, I note here that the expert evidence was one unsatisfactoryfeature of this case. The case involved evidence from 10 experts on causation andquantum issues. Much of the sharp conflict reflected the experts' different factualbases but in some cases a lack of appreciation of the role of expert witnesses set outin the code of conduct and ineffective conferral meant that their evidence failed toassist by identifying the extent of agreement or disagreement assuming the differentfactual bases.ZLH's records[73] The defendants criticised the plaintiffs' lack of production records, the lack offull disclosure of sales invoices and alleged there was undeclared income due to cashsales amounting to tax evasion.[74] Mr Zheng said he did not record production harvest by weight – he prioritisedother responsibilities. When selling wholesale, buyer created tax invoices wouldrecord product by weight. Samples of these invoices were in the agreed bundle, butMr Tee said not all invoices had been discovered. Mr Zheng said that when requestedhe had provided them to his lawyers.[75] In relation to the lack of production records, Mr Ivicevich said Mr Zheng hadno need to keep them. The plaintiffs' accounting expert, Mr Briggs, acknowledgedthat may be common at least for a smaller business whereas Mr Fleming, who gaveexpert accounting evidence for the defendants, criticised Mr Zheng for not recordingproduction quantity. Mr MacDonald, another expert accountant for the defendants,also said it was exceptionally strange but then acknowledged the buyer created taxinvoices for wholesale sales and concluded that other than what was sold at marketsthere would seem to be data regarding product quantity sales.[76] Detailed and complete production records would no doubt have assisted inquantifying ZLH's total production in the relevant years. However, as Mr Teeacknowledged, this was a best evidence point and not a discovery point. Althoughtotal 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 thatZLH'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 wholesalebasis, from late 2006 it also began to sell some product at farmers' markets at retailpricing, mostly for cash. Mr Zheng said he sold about 5-25% of the produce at themarkets, with the turnover equivalent to 10-50% of produce sold at wholesale. It isunclear whether this range reflects variation over time rather than a very approximateestimate.[78] In response to the defendants' allegation of tax evasion, Mr Zhengacknowledged that he paid stall fees, fuel costs and for food and refreshments forhimself or his wife and son out of the cash, and that sometimes he also paid asalesperson. He also acknowledged that he paid another staff member from cash salesone or two times.31 He said the remainder of the cash was banked. He estimated that80-90% of the cash was banked although he thought it was more like 90%. The bankrecords were provided to his accountant (Mr Hunt) who treated cash deposits asincome. Mr Zheng said he would take steps to address the issue of GST that might bepayable. Mr Hunt provided a spreadsheet identifying the cash sales declared(deposited into the bank account) and the estimated undeclared sales based onMr Zheng's statement.[79] Mr Zheng also said that he had been the subject of an IRD investigation around1999-2000 when he used to conduct gate sales and that the result was that $36 was31 In addition, he acknowledged he had paid staff in cash from another source, but that would notaffect reported revenue.outstanding, attributable to fuel costs on a personal vehicle sometimes used forbusiness. In addition, he said that around 2018 or 2019 his accountant notified himthat someone had made a report about him to Inland Revenue and that now he doesnot 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 themarkets 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 financialstatements and calculated what he considered to be a modest income for the Zhenghousehold. Mr MacDonald said that overall the financial performance of ZLH was"atrocious". They suggested that cash sales must be much higher because the businessdoes not have the earning capacity to support the Zheng family. Mr Fleming said thatthe statement of claim stated the plaintiffs incurred $30,000 costs repairing the roofand guttering and that since he could not identify this in the financial statements heinferred that if the repairs took place they were paid for in cash sourced fromunreported revenue. He also said that because he could not identify payments to anemployee during an initial period between September 2020 and August 2021, theinference was that she was being paid in cash from unreported revenue. He notedMr Zheng's imprecise reference to 5-25% of sales at market, and was generally verycritical of Mr Zheng's practices and intent in relation to cash sales.[82] In response to Mr Briggs' supplementary evidence addressing the unreportedrevenue, Mr Fleming suggested that Mr Briggs should have asked Mr Zheng aboutunreported cash for his original brief. Mr Fleming concluded that the undeclaredrevenues were significant and highly material and carried out in a manner that hebelieved would be considered "deliberate tax evasion". In cross-examination, he saidhe 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 somelarger deposits.[83] Thus, the Lyndons' suspicions which led to photographing Mr Zheng at themarkets in 2019 and 2020 were supported by allegations of tax evasion from at leastMr Fleming.[84] Beginning with the proposition that the cash sales must be much higherbecause 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 assumesthe family does not have money available from other sources. The evidence indicatedMrs Zheng did have other funds. In any event, this case is not about the funds requiredto support the Zheng family.[85] The $30,000 cost referred to in the statement of claim was not pursued and I donot infer that it was paid for in cash from unreported revenue. The employee to whomMr Fleming referred gave evidence and explained that she was not really employedduring the initial period as she approached Mr Zheng to learn off him. She explainedthat he wanted to pay her and gave her cash but that she then worked more and startedgetting paid properly. Mr Zheng said this cash was not from market sales.[86] Mr Fleming acknowledged that he had been the Lyndons' personal accountantsince 2008. Some of the matters he addressed were of concern. However, his evidenceextended beyond providing expert accounting evidence to advocating for factualinferences 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 levelof unreported revenue. As appropriate for an accounting expert, he was providing acalculation 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 statementswas understated because cash sales were not declared. That is concerning.The position in relation to payments to staff/contractors is also unclear andunsatisfactory – whether or not paid out of undeclared revenue. There may well betax implications.32 His relatively brief comment responding to the allegation of tax evasion probably extended intoadvocacy.[88] In any event, the issue for me in this case is whether the evidence of unreportedsales revenue is reliable. Given the evidence of the extent of cash deposits into ZLH'sbank account and the scale and frequency of the market stalls, and having seenMr Zheng and his accountant give evidence including as to the need to take steps toaddress the issue with Inland Revenue, I consider the extent of the unreported incomeis unlikely to be more than 20% of the cash sales and that this cash was likely usedat least in part for related expenses. Accepting Mr Fleming's evidence that the typicalcash 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 acceptthat the defendants' suspicions and serious allegations warrant completely rejectingthe evidence of ZLH's sales as unreliable when considering causation and loss in thiscase. Put another way, even taking into account the plaintiffs' onus of proof, I do notconsider the evidence indicates that undeclared cash income is the likely explanationfor the lower reported revenue in the period of the claim (2010 to 2020) such that thisis an essentially fraudulent claim. With an appropriate adjustment for unreportedrevenue based on the evidence, I consider the reported revenue has sufficientreliability. Although Mr Zheng thought more than 80% of the cash was banked (andhis accountant suggested an even higher percentage), I consider the appropriateadjustment 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(beforeadjustment)ZLH's salesrevenue (adjusted)1999 302,2692000 333,2432001-July2006Leased out –no records2007 128,341332008 225,2152009 186,6862010 167,8122011 160,9472012 139,4232013 146,9812014 141,1872015 111,2952016 178,8442017 179,2382018 273,0242019 257,0842020 289,1622021 323,335Identification of shading and root encroachment concerns[90] I next summarise the factual evidence as to the identification of shading androot encroachment concerns.[91] As mentioned, in August 2014 Mr Zheng told Mr Lyndon that roots weregetting in the greenhouse, but the focus of his request to Mr Lyndon was to cut thetrees down to 300mm. However, the proceeding that Mr Zheng commenced in 2016included a claim alleging damage to the drainage system inside the greenhouse causedby 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 forundeclared 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 anyevidence of root encroachment.[92] Mr Ivicevich was the one expert who had regularly visited Mr Zheng'sgreenhouse during the period before 2020. He spoke very positively of Mr Zheng'soperation and practices. He had noticed thrifty or mean, lean plants at the north endof 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 reportwinter light was considered the important factor and poplar roots were not consideredto be of significant importance.[94] Also in November 2018, as indicated, a further amended statement of claimincluded, as a particular of the alleged damage to the drainage system inside thegreenhouses caused by the tree roots, that the tree roots had penetrated underneath thegreenhouses and had interfered with the greenhouses' water recycling drainage systemwhich formed part of the irrigation system.[95] Before 2020, none of the experts inspected root encroachment in thegreenhouse. Mr Ivicevich raised root encroachment in May 2020. Mr Dale's letterfollowed.Evidence of the plaintiffs' horticultural experts[96] Dr Nichols, who had focused on shading during his 2018 visit, said that duringa later visit in January 2021, poplar roots were observed in the gap between the fenceand the greenhouse and became a matter of concern. Nevertheless, at that time he stillconsidered light to be the major cause of loss of productivity. However, he said thatonce Dr Luo, a statistician, was introduced into the team and identified a significantlinear relationship between income (annual sales data) from greenhouse crops and treeheight, and Mr Zheng produced a graph based on the dispersal of poplar roots in thegreenhouse, it was clear that from a competition for light viewpoint the four wintermonths were key. Dr Nichols explained that the reduction of income during the othereight months must have been due to other causes, which he said were logically poplarroots. Dr Nichols compared the sales revenue per year of $408,235 (based on amonthly average) in the period from November 2020 after the roots were cut untilAugust 2022 with that of $322,743 in the earlier period from 2017 until October 2020when the roots were still active. I note that neither figure takes account of unreportedcash income.[97] In conclusion, Dr Nichols said that his 2018 report did not consider rootcompetition but that he now considers that root encroachment is the major cause ofloss of income and that competition for light, though important, played only a minorrole. He accepted that the effect of shading might be up to 10% and explained thatroot competition involves competition for water, nutrients and oxygen. Dr Nicholssaid there could also have been an allelopathic effect from the roots releasing somechemicals 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 sametime, the roots entering the greenhouse would have become a major nuisance. He saidas the roots grew into the greenhouse their effect was going to increase. They wouldbe expected to influence productivity in all probability through the whole greenhouse.He considered that shading especially in winter was more important than rootcompetition for water and nutrients but agreed with other experts that the rootsprobably caused loss of productivity. He said roots remained growing in October2022.[99] Mr Ivicevich concluded that Mr Zheng's income fell and rose in line with boththe height of the poplars and the root encroachment and said that there was no otherplausible explanation. He said that both factors affected production consistent withthe sales figures. He also considered that the cost of remediation of the rootencroachment 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 to2015 and a positive correlation from 2015 to 2020. Thus, there was no consistentrelationship between tree height and income. Even adjusting both tree height andrevenue to reflect my factual findings, I agree there is no consistent statisticalrelationship between tree height and revenue.[101] Dr Luo identified a consistent negative relationship between income and rooteffect. However, he indicated that he applied a root effect scale from 0 to 30 based onwhen he understood the roots grew and Mr Zheng removed them. He also categorisedyears according to whether there was shade and/or root effect or neither. Based on theincome 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 notsubstantially helpful.Dr Nederhoff's evidence[102] Dr Nederhoff visited Mr Zheng's greenhouse on 28 October 2022 (well afterthe trees and roots had been removed). She considered that Mr Zheng had an overlypositive view of his greenhouse and equipment, describing it as a basic double-plasticgreenhouse of considerable age, in reasonable condition for its age, with simplecontrollability.[103] Dr Nederhoff described Mr Zheng's growing system as a crossover betweensoil-based and soil-less growing, which she said misses all the advantages of standardhydroponics systems. She considered that a major shortcoming of Mr Zheng's systemcompared with normal hydroponics was that he could not regularly flush or renew thegrowing medium. Dr Nederhoff noted that when Mr Zheng's crops were replacedeach 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 themtested in a laboratory. She said the report revealed excessive, extremely high levels offive or six fertilisers, indicating severe accumulation of mineral fertilisers in thegrowing medium. She said that as Mr Zheng never renewed his growing medium until2014, she expected the mineral load was especially high up to 2014. She concludedthat the growing medium had been used over many years as it contained such mineralsand that this stale growing medium was unhealthy for the plants. She concluded thisundoubtedly negatively affected production.[105] Dr Nederhoff said she saw no indication that an external factor such as theneighbouring poplar trees was the cause of Mr Zheng's relatively low tomatoproduction or was a contributing factor. In reply to the plaintiffs' experts, she also saidthat a full hydroponics system protects the crop from intrusions coming from thenatural soil. She concluded there was no evidence at all that the tomato plants weredisadvantaged 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'soperation about once or twice a year from 2000 to 2008. She considered that theirdifferent sales value was explained by a 33% reduction from Mr Ivicevich's figures asMr Zheng's system is near-organic and a 25% reduction since Mr Zheng did not growtomatoes 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 salesjumped up significantly in 2019 after he started using consultancyservices which may indicate that his growing practices had beensuboptimal before that.(b) Mr Zheng's stale growing medium, already mentioned.[107] Dr Nederhoff concluded that the income gap between the two growers wascaused by differences in growing practices within Mr Zheng's control – type ofgrowing 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 allegedroot effect. She concluded that given Mr Zheng's fertigation, there was no competitionfor water and nutrients. She also dismissed the suggestion of an allelopathic effectand Mr Luo's statistical root effect. She acknowledged that the poplar trees wouldhave intercepted a fraction of the natural light that otherwise would have reached thegreenhouse but concluded the production loss was less than 2% unless the trees were19m high.[109] Dr Nederhoff concluded that each jump in yearly income coincided withrefreshing of the growing medium in 2014-2016 and again in 2020. As well ascriticising Mr Zheng for not having a proper hydroponic system, she said he couldhave installed the root barrier earlier than 2020.Discussion[110] It is necessary to consider the expert evidence in light of my factual findingsas to sales revenue, tree height, root removal and growing medium replacement.[111] The horticultural experts ultimately agreed that shading had only a minor effectand their evidence narrowed to two competing causes for Mr Zheng's reducedproductivity in the period between 2007 and 2020 – root encroachment or problemswith Mr Zheng's growing system. No intervening cause such as a change in price ordemand was suggested to account for reduced sales revenue. I accept that salesrevenue correlated to production. Dr Nichols considered that lower production couldbe assumed from lower income because tomato prices tend to be very consistent, andMr Ivicevich considered that his sales figures served as a guide to the market to showthat the market was not going up or down. That is relevant when assessing ZLH'sperformance over time.[112] Together, the plaintiffs' horticultural experts supported the claim that rootencroachment was a cause of loss of production. Dr Nichols put it highest, saying itwas the major cause of loss of income. As he acknowledged, this was a change fromhis 2018 report. Indeed, it was a significant change. He also disagreed withDr Nederhoff's conclusion that there was no evidence at all that the tomato plants weredisadvantaged 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 plantsappear to be in the ground and there is no barrier between beds and walkways atground level. In this respect, therefore, Dr Nederhoff misunderstood Mr Zheng'sgrowing system although she correctly noted that Mr Zheng acknowledged that henever changed the plastic sheet and weed mats and therefore it is inevitable that theymay 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 workin 2014 to 2016 involved replacing the growing medium. However, as indicated,Mr Zheng acknowledged that he did not replace the growing medium; he merelyadded extra growing medium as the channel had become wider.[115] Dr Nederhoff's suggestion that the growing medium was unhealthy whensampled in late 2022 appears inconsistent with her thesis that production improvedafter the growing medium was replaced and inconsistent with the other evidence as togood crop quality and sales revenue at that time. Mr Ivicevich gave evidence thatDr Nederhoff had used the wrong laboratory testing form when submitting the sampleswhich led to the provision of an incorrect guide range upon which she relied for herconclusions. In response, Dr Nederhoff said the form did not matter for her purposebut she withdrew her characterisation of the minerals as excessive or high comparedwith the guidelines on the form. She agreed there were no excessive levels of mineralsor macronutrients.[116] However, Dr Nederhoff maintained that until roots grew much bigger theywould not take up nutrients or cause harm, and that it was refreshing the growingmedium that improved production. She agreed that removing roots was a distractionand 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 andMr Ivicevich's operations, she sought to support the reduction for near-organicproductivity on the different basis that Mr Zheng used considerably less fertilisers thanMr Ivicevich, but she acknowledged that 33% was just a guess. As there was noevidence that either grower changed their operation in this respect throughout theperiod, I doubt this factor explains a difference in performance during the years of theclaim. Further, a 25% reduction for 8 rows is only an alternate explanation for reducedproduction if it is assumed that root encroachment was not the cause for their non-usefor tomatoes.[118] Overall, I do not accept Dr Nederhoff's conclusions that ZLH's reducedproduction was due to a stale growing medium and that each jump in yearly incomecoincided with refreshing of the growing medium in 2014-2016 and again in 2020.That conclusion was undermined by her incorrect reference to excessive or highmineral content, the timing of her samples relative to performance and her assumedreplacement of the growing medium. If she were correct that the growing mediumwas replaced when the remedial work was done in 2014 to 2016, that would notnecessarily identify the cause since that same remedial work involved removing theroots. Even allowing for partial refreshing by adding to the growing medium in theperiod from 2014 to 2016, the pattern of ZLH's adjusted sales revenue in the yearsending 2015 to 2021 at [89] above does not reflect Dr Nederhoff's conclusion. If herexplanation were correct, I would expect a significant increase following a change tothe growing medium followed by a gradual decline until the growing medium wasnext changed. I also found her comparison of the operations of Mr Zheng andMr Ivicevich rather adversarial. I preferred Mr Ivicevich's less negative descriptionof Mr Zheng's growing system.[119] However, it is still necessary to identify a plausible explanation or mechanismfor the root effect identified by the plaintiffs' horticultural experts. It is commonground that roots below the channel do not directly affect the tomato plants, but asindicated roots were able to enter the container channel by piercing the plastic sheetor through the gap of the weed mat where either is damaged or worn out, or by growingon 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 thedispersal of poplar roots in the greenhouse. I have already addressed the challengesto 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 increasedfollowing both rounds of remedial work. I have found that Mr Luo's scale was nothelpful.[121] Tree height was also disputed at least in some years. Based on my factualfindings which differ somewhat from those assumed by the horticultural experts, it isdifficult to detect a correlation between sales revenue and tree height. The trees weretrimmed 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 March2016 and 2017 were almost the same. The biggest jump in sales revenue in the yearending March 2018 does not follow a reduction in tree height. In any event, thehorticultural experts agree that shading was of only minor effect.[122] Further, cutting back the trees did not affect root spread and therefore, subjectto Mr Zheng's action to extract roots, root encroachment into the greenhouse wouldhave continued to increase at least until the root trench was dug in October 2020. It islikely that Mr Zheng's action to extract roots mitigated the effect of root encroachmenton tomato production.[123] As Dr Nederhoff seemed to accept, remedial work removing roots would likelyhave caused loss of production. Root removal occurred progressively between 2014and 2016. If nothing else, the time required to do so between crops would have aneffect. The first round of remedial work was before the defendants' measured dutyarose in October 2016, but there was a second round of remedial work from late 2020which also likely caused loss of production albeit this is difficult to quantify given theimproved sales revenue in the 2021 financial year.[124] Stepping back and considering the fact and expert evidence as a whole, I acceptthat poplar root encroachment into the growing medium would likely compete withthe tomato plants for water, nutrients and oxygen. The roots were invasive and somewere large. Mr Ivicevich disagreed with Dr Nederhoff that the effects of competitionwould necessarily be visible wilting or discolouration unless the plants were dryingout more than just getting a ration of feed and in any event he did describe tomatoplants nearer the north boundary as thrifty or lean albeit that initially appeared to bedue to shading. I prefer his evidence in this regard over Dr Nederhoff's given hisparticular 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 withthe 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 outinto the underground soil. In addition, roots were able to encroach into the irrigationsystem although there was no evidence that loss of production was caused by damageto the irrigation system.[125] Overall, focusing on the period from October 2016, I conclude that poplar rootencroachment was likely the major cause of ZLH's reduced sales revenue. ZLH'simproved sales revenue from the year ending March 2016 is more consistent with theremoval of roots than Dr Nederhoff's competing theory. However, I consider theeffect 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 whichwill put the party who has suffered a loss in the same position as it would have beenin had it not sustained the wrong.34 In a tort claim, this means the position the claimantwas in before the tort was committed.35 In the case of a continuing nuisance, eachnew and separate infliction of harm gives rise to a fresh cause of action.36 The valueof a crop lost as a result of a nuisance is recoverable as damages.37 Here, I have foundthat a measured duty arose and was breached on a continuing basis between lateOctober 2016 and 17 August 2020.[127] Neither side's expert accounting evidence calculated the quantum of loss on abasis that aligns with my factual findings. Nevertheless, I am satisfied that there hasbeen some real damage and in such circumstances the Court will do the best it can toarrive at a figure based upon the available evidence.3834 Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 (CA) at 359 per McMullin Jand 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 TradeSupply Ltd [1972] NZLR 102 (SC) at 109; Ward Ranch Ltd v Minister of Conservation/Te PapaAtawhai [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'sgarden 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 ApplicatorsLtd HC Rotorua A26/81, 17 February 1983 (on appeal Attorney-General v Geothermal ProduceNew 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 salesincome with that of Mr Ivicevich's tomato growing operation. The relevant claimantin respect of such a loss is ZLH as occupier of the greenhouse.39 There is no claim forthe time and material cost of root extraction – I understand this is because the timewas primarily incurred by Mr Zheng and his family rather than by paid staff orcontractors. Mr Zheng said the loss figures have been calculated very conservativelyand he considered the comparison with Mr Ivicevich's sales was beneficial to thedefendants given his own operation's past income.[129] Returning to the accounting evidence, Mr Briggs assessed the loss taking twoapproaches: first, comparison with Mr Ivicevich's tomato growing operation; andsecondly, internal analysis of ZLH/Mr Zheng's revenue during periods unaffected bythe loss. Taking the first approach, based on the evidence of Mr Zheng andMr Ivicevich comparing their operations and Mr Zheng's higher reported revenue in1999 and 2000, Mr Briggs took Mr Ivicevich's achieved revenue from April 2010 asthe estimate of what the plaintiffs would have earned each year but for the poplarissue.40 Using the second internal analysis approach as a cross-check, Mr Briggsidentified 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 wasessentially Mr Briggs' calculation of lost sales under his first approach covering theperiod from April 2010 to November 2020 (excluding 26 August 2014 to 2 August2016). He calculated that, after deducting expense savings given the shortfall inrevenue, the net loss was $779,788.[131] Mr Briggs provided supplementary evidence addressing the issue of cash salesbased on the supplementary evidence of Mr Zheng and his accountant. Mr Briggsadjusted his calculations on the basis that 20% of cash sales were not declared (butrather were applied to sundry expenses). As a result, at trial the claim for the sameperiod 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 increasedrevenue, Mr Briggs capped Mr Ivicevich's revenue after 2014 at the average of his revenue from2011-2014 ($310,224).[132] The relevant sales revenue figures are set out in the following table:YE 31 March ZLH's salesrevenue (adjustedfrom 2011)Ivicevich'ssales revenue1999 302,269 204,3372000 333,243 235,2232001-July2006Leased out –no records2007 128,341 310,5102008 225,215 247,2942009 186,686 280,6092010 167,812 305,8542011 160,947 252,9842012 139,423 328,8752013 146,981 312,1442014 141,187 346,8912015 111,295 310,2242016 178,844 310,2242017 179,238 310,2242018 273,024 310,2242019 257,084 310,2242020 289,162 310,2242021 323,335 310,224[133] Mr Briggs did a further calculation for the period from August 2016 toNovember 2020. For that period, he originally calculated the lost revenue as $229,255based on ZLH's reported sales revenue. He then deducted expense savings given theshortfall in revenue to calculate the net loss for that period as $153,908.[134] Mr Briggs' supplementary evidence reduced the total lost revenue for theperiod 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 lateOctober 2016 (commencing 1 November 2016) to August 2020 in accordance withmy measured duty finding would result in a further reduction in respect of the yearending March 2017, reducing the net loss by $24,373 as follows:41Aug 2016 -Mar 2017Nov 2016 -Mar 2017Loss ofrevenue86,487 54,189Lessequip hire3,301 2,068Less fuel& gas11,157 6,990Lesswages3,301 2,068Less misc 3,459 2,168Total 65,268 40,895Difference 24,373[136] On this basis, the net loss for the period from October 2016 adoptingMr Briggs' approach would be $103,469.42[137] Returning to Mr Fleming's evidence, apart from the matters already addressedin relation to records, he suggested that by not replacing the plastic sheet and weedmats Mr Zheng was potentially not carrying out adequate repairs and maintenance;he contrasted ZLH's expenditure with Mr Ivicevich's expenditure; said it was unsafeto assume the production system was identical in 2007 and onwards to what it wasbefore being leased out; and referred to "underspend" as ZLH's expenses reduced from2008 to 2013. He also considered ZLH's bank statements were "somewhatremarkable" because there was little demand on the company for drawings orremuneration and rates were paid once a year without taking advantage of spreadingpayments 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 of124/365) to exclude the period from April to October 2016. No further deduction is required forthe 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 1999and 2000 years could be used for comparison between the two businesses. He saidthose years should be disregarded. Instead, he compared their results between 2008and 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 productionand if he had spent the further $146,779 he would have produced another $219,594 inrevenue per year.[139] Mr Fleming analysed monthly revenue data and said there was extremevariability. He said that knowing that this business plants and harvests continuouslythroughout the year, the only plausible explanations were either production did nottake place during the low revenue months or sales were not banked and returned asincome.[140] Mr Briggs acknowledged the variability between months identified byMr Fleming – most notably in 2015 – but Mr Briggs said this could be due to cashrather than accrual accounting. This seems a more likely explanation than the rootextraction work since that work proceeded row by row. Although Mr Zheng said thatremoving roots was difficult and time consuming, he did not say there were substantialperiods when ZLH was out of production. I also note that, while not pursued, in anearlier pleading Mr Zheng claimed for greenhouse repairs undertaken in 2015 whichmight also account for a period of no production.[141] As Mr Dale submitted, some of Mr Fleming's opinions on matters beyondexpert accounting opinion were surprising. They undermined the reliability andhelpfulness 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 inMr Hunt's spreadsheet. Mr MacDonald concurred with Mr Briggs' approach ofshortfall in revenue less any potential cost savings. However, he expressed concernsthat the operations of Mr Zheng and Mr Ivicevich were not comparable and consideredthe data quality precluded an accurate assessment of loss (if any). However, heproceeded to attempt to make adjustments for comparability and concluded that asMr Zheng had a much lower cost structure, he would have made a better profit thanMr Ivicevich based on comparability adjustments, indicating there was no loss.Mr MacDonald also considered Mr Briggs' internal analysis approach was flawedgiven the understated netted off expenses from revenue.[143] Mr Briggs and Mr MacDonald agreed that ZLH's reported revenue likelyunderstated the gross revenue on Turners & Growers sales (and ZLH's costs), but thiswould not affect the internal analysis of ZLH's revenue across periods.[144] In closing, Mr Tee submitted that adjusting from Mr Ivicevich's results wouldbe more reliable than internal analysis of Mr Zheng's bookend results (1999/2000 and2020/2021).[145] As Mr Ivicevich and Dr Nederhoff agreed, differences between Mr Zheng'sand Mr Ivicevich's operations mean that a direct revenue comparison is not a reliableindicator of loss. I do not consider it helpful to calculate the plaintiffs' loss by makingsomewhat arbitrary adjustments for comparability with Mr Ivicevich's revenue. EvenMr Ivicevich's sales revenue varied materially from year to year.[146] Nevertheless, despite differences between their operations, Mr Ivicevichconsidered their consistencies made comparing their incomes relevant at least in thesense 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, thathis sales figures served as a guide to the market to show that the market was not goingup 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 yearsbefore and after the affected period is also limited given the greenhouse was leased toa third party between March 2000 and July 2006 and there is no reliable sales revenuefor the years ending 31 March 2007 to 2010. This gap or lack of continuity raisesdoubt about the comparability of the prior period. In any event, I have determined therelevant 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, 2001and 2021,43 before and after the alleged tree root encroachment, especially whencombined with Mr Ivicevich's revenue data throughout the period to 2020 (adjustedfor his identified changes from 2014), does indicate some level of consistency.As Mr Dale submitted, there are consistent data points indicating revenue of $300,000plus per year – before the trees were planted, after they were dealt with and fromanother grower (Mr Ivicevich, except 2011) in the same period. Mr Daleacknowledged that none is necessarily decisive, but he submitted that together theyprovide a degree of comfort that absent the tree roots ZLH's revenue would beexpected to be about $300,000 per year. This is more conservative than the expectedrevenue of $310,224 per year based on Mr Ivicevich's average in the four years up to2014.[149] I note this might appear to reflect an expectation damages approach moreappropriate for breach of contract whereas the measure of damages in tort is the sumof money which will put the party who has suffered a loss in the same position as itwould have been in had it not sustained the wrong. However, as indicated, the valueof a crop lost as a result of a nuisance is recoverable as damages and I accept that inthe case of this continuing nuisance the lost value of each year's crop is recoverableunder the tort measure.[150] Using revenue of $300,000 as an annual benchmark in the relevant yearsinstead of $310,224 but otherwise using Mr Briggs' calculations would lead to thefollowing 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 Aug2020TOTALLoss of revenue 49,959 26,976 42,916 10,838 - 130,689Less equip. hire - 2,068 - 5,000 - 5,000 - 5,000 - 17,068Less fuel & gas(12.9%)- 6,445 - 3,480 - 5,536 - 1,398 - 16,859Less wages - 2,068 - 5,000 - 5,000 - 5,000 - 17,068Less miscellaneous(4%)- 1,998 - 1,079 - 1,717 - 434 - 5,228Net 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 ofshading.[152] As a result, the net loss reduces to $67,914 as follows:2017 2018 2019 2020 To Aug2020TOTALNet loss 33,642 11,175 23,097 - - 67,914[153] I consider that this is the appropriate measure of ZLH's loss in all thecircumstances.Affirmative defences[154] The defendants pleaded affirmative defences of consent, failure to abatenuisance 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 noapplication given my finding that the measured duty only arose later. I deal next withthe plea that the plaintiffs caused the nuisance and then with the remaining affirmativedefences together.44 With this reduced revenue, there is no loss in the year ending 31 March 2020. The -$994 is ignoredwhen 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 thedefendants. In relation to the location of the greenhouse, the defendants' pleading thatthe greenhouse could have been moved further away from the boundary was notpursued as a realistic solution. I also do not accept that the plaintiffs refused areasonable proposal for trimming the trees. Nor do I accept that coppicing the treescaused the nuisance. The evidence did not support the defendants' submission that theplaintiffs caused or contributed to the cause of damage on the basis that coppicing thetrees caused the roots to grow more quickly. Mr Meban said only that coppicingcaused the branches to grow outwards more quickly. The evidence also did notsubstantiate the allegation that the plaintiffs composted the common boundary topromote root encroachment.Failure to abate/mitigate and contributory negligence[156] Abatement of a nuisance is an alternative to damages, and the exercise of theright of abatement destroys the right to damages at least insofar as abatement removesthe nuisance and eliminates the damage.45 So, if the defendants' measured duty hadarisen in 2014, the steps Mr Zheng took to remove the roots in 2014-2016 would havereduced the damage. It is unnecessary to address whether ZLH would have been ableto recover the time cost of doing so.[157] In relation to Mr Zheng's actions once the measured duty arose, any so-calledfailure to abate can be assessed, like failure to mitigate, in terms of contributorynegligence.[158] A defence of contributory negligence has no place in the classic nuisance casewhere the defendant creates a source of continuing interference with the plaintiff'sprotected interest. Just as it is no defence for the defendant to show that all possibleprecautions to prevent the nuisance were taken, it is also irrelevant that the plaintiff45 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 ameasured duty, a defence of contributory negligence may be advanced by way of apartial defence.47[159] I do not accept there is any affirmative defence based on the plaintiffs' failureto accept the defendants' August 2016 settlement offer. That focused on trimming thetrees and in any event required the plaintiffs to pay. Nor do I accept there is anyaffirmative defence based on composting the common boundary to promote rootencroachment, 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 toencroach, as indicated, Mr Zheng acknowledged that around mid-2016 he thought theproblem with roots had been resolved because he had dug them out. Mr Zheng couldhave done more. Even taking into account Mr Dale's submission that contributorynegligence was not squarely put to Mr Zheng in cross-examination,48 I consider healso could have sought expert advice about the roots when commencing proceedingsin October 2016 and would likely have been told that they would grow back into thegreenhouse and that the trees needed to be removed or a root barrier dug to stop rootsgrowing back into the greenhouse. Although he was wise not to cut the roots at theboundary in order to make the trees fall onto the Lyndons' driveway when that wassuggested to him in late 2018, he had a right of abatement throughout – he would havebeen entitled to dig a trench between the boundary and the greenhouse to cut theencroaching roots.49 He also could have explained the root encroachment morespecifically to the Lyndons including the remedial work he needed to do. Just as thedefendants breached their measured duty, the plaintiffs could and should have abatedthe 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 the46 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 curtainsor 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 totake reasonable steps to identify root encroachment as the major cause of loss and toaddress it. Mr Zheng failed to communicate the extent of root encroachment to theLyndons and also failed to take reasonable steps to identify root encroachment as themajor cause of economic loss. Having regard to this comparative culpability and theextent to which their respective failings contributed to the loss,50 I consider that in allthe circumstances an apportionment of one third for contributory negligence is justand 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 treesbeing coppiced, said to be in August 2017, $1,356 for the cost of removal and $50,000for distress, upset and loss of privacy. It is common ground that this relates to theactions by the plaintiffs' employee on 1 June 2016 but despite the terms of the pleadingMr Tee said it extended to the coppicing in August 2014 since the agreement did notapply to trees beyond the greenhouse.[164] As indicated, in September 2017, the Lyndons obtained an arborist's reportfrom Mr Meban in relation to the trees cut down in June 2016. Mr Meban said he wasadvised the trees had been cut to about 400mm in 2014 and again in 2016 and that theappearance of the trees was consistent with that. He also said they were about 8m highwhen he visited in September 2017.[165] As also indicated, in 2016 between 15 and 30 of the 120 trees were cut downto between 0.5m and 2m. Any trees cut to 2m (or below) in June 2016 would not be8m 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 amisunderstanding as to the precise height agreed in August 2014, the Lyndons agreedthe trees running up the driveway could be cut down – to at least 1m. That changedthe amenity value of all 120 trees, rather than the rough cutting of 15 to 30 trees inJune 2016.[167] I therefore do not accept the defendants have a claim for loss of amenity valueof $78,000 in respect of 120 trees (or $72,600 as calculated by Mr Meban as thedifference 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 aclaim for the unauthorised cutting of 15 to 30 trees in June 2016 that had already beencoppiced in August 2014. Consistent with Mr Meban's evidence, those trees werealready damaged beyond recovery and therefore only worth $45 each. Depending onthe 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 awarddamages for them. Nor are the defendants entitled to $1,356 for the cost of removalof the trees in 2020 given the continuing nuisance. Likewise, the defendants are notentitled to general damages for distress or otherwise.Interest[169] ZLH seeks and is entitled to interest. Applying the provision in force when theproceeding was commenced,51 and since the cause of action accrued at the same timeas the proceeding was commenced, one option would be to award interest from thatdate. However, since the damages substantially relate to losses in the interveningperiod, 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 ending31 March2017 2018 2019 2020 To Aug2020TOTALNet loss 22,429 7,450 15,399 - - 45,27851 Judicature Act 1908, s 87.Result[170] The second plaintiff (ZLH) is entitled to judgment on the claim in nuisancefor 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 damagesawarded and in all the circumstances of this unfortunate dispute, I am inclined to makeno order as to costs. However, if costs cannot be agreed, memoranda (not exceedingthree pages) may be filed within 20 working days and I will determine costs on thepapers.________________________________Gault J