New Zealand Case Law: Decisions & Judgments

Topic

Private nuisance

Legal area

Court

31 Mar 2023

LEISURE INVESTMENTS NZ LTD PARTNERSHIP v GRACE & ORS [2023] NZCA 89

Citation

[2023] 2 NZLR 724
Court

Court of Appeal

The Court of Appeal dismissed the appeal: Leisure Investments was liable in negligence and nuisance and under s 43 for losses caused by the Chairlift Fire because it knew of the fire risk, of plastic-coated chairs and flammable slash, and failed to take reasonable steps (earlier removal of carriers) such that the molten plastic ignitions constituted a new actionable outbreak; damages awarded by the High Court were supported and the appeal against quantum failed.
28 Feb 2023

SIMUNAC v LU [2023] NZHC 335

Citation

[2023] NZHC 335
Court

High Court

The stay application was dismissed as withdrawn and no costs order was made; although r 7.77(8) arguably applied, the stay application faced a significant obstacle because other causes of action in the original pleading were not arbitrable and the plaintiffs elected at a late stage to amend to avoid arbitration, so interests of justice required leaving costs to lie where they fall.
3 Jun 2021

NOTTINGHAM FOREST TRUSTEE LIMITED v UNISON NETWORKS LTD [2021] NZCA 227

Citation

[2021] 3 NZLR 823
Court

Court of Appeal

The Court of Appeal dismissed the appeal and cross-appeal: it held Nottingham Forest strictly liable in private nuisance for allowing a state of affairs (mature trees planted and allowed to grow within falling distance of Unison's pre-existing line) that caused recurrent, foreseeable physical damage and unreasonable interference with Unison's proprietary interest in the line; however Rylands v Fletcher did not apply because commercial forestry is an ordinary use of rural land and not a 'non-natural' use; negligence was not established and injunctive relief was unnecessary after trees were rem…
10 Dec 2020

NIRVANA FARMS LTD v MAKAKAHO LAND COMPANY LTD [2020] NZHC 3268

Citation

[2020] NZHC 3268
Court

High Court

The Court found there is a serious question to be tried and that the balance of convenience and overall justice require interim protective measures short of the mandatory numerical restrictions sought; accordingly the Court granted an interim injunction restraining the defendants from placing more hives than permitted by the industry stocking ratio of one hive per hectare of manuka resource (excluding blocks with average height under two metres), using an interim guide of 431 hectares for the defendants' property, prohibited hives within 300m of boundaries, and ordered joint mapping, drone su…
17 Jan 2020

McKenzie v Mortimer [2020] NZHC 17

Citation

[2020] NZHC 17
Court

High Court

On a prima facie review the court held the plaintiffs' claims (both the alleged unconsented alterations and the nuisance claims) were arguably within the scope of the broad arbitration clause (clause 18); clause 9 and clause 20 are separate tracks and clause 20 was not shown to be engaged so the clause 18 exception did not apply; consequently the proceeding was stayed and the disputes referred to arbitration under clause 18, with leave reserved to lift the stay if arbitration is unreasonably delayed.
9 May 2018

SEMPLE v WILSON [2018] NZHC 992

Citation

[2018] NZAR 1025
Court

High Court

The Court found that (a) overhanging branches in the canopy materially contributed to gutter blockage, water ingress and timber rot and therefore constituted an actionable nuisance; (b) shading and pool leaf ingress also interfered with use and enjoyment and aided the finding of unreasonable interference; (c) roots were not shown to have caused material damage except insofar as a specific root contributed to damage to slab 1 of the driveway; (d) removal of all trees was unnecessary; appropriate remedies are mandatory trimming to the boundary and periodic maintenance at defendants' cost, defen…
1 Aug 2017

OGLE AITKEN AND AITKEN [2017] NZHC 1799

Citation

[2017] NZHC 1799
Court

High Court

Trespass was established but a mandatory injunction to remove all encroaching soil was properly refused because removal was impracticable, the plaintiff failed to particularise the relief and damages in substitution were appropriate where warranted; nominal damages of $1,000 were appropriate given unintentional conduct and lack of loss evidence. Private nuisance was established as an ongoing risk of subsidence and a mandatory quia timet injunction ordering erection of an earth/gravity retaining wall, reshaping of the batter to 43 degrees and replanting within 58 Maratahu Street was an appropr…
3 Jul 2017

BEMA PROPERTY INVESTMENTS LTD v BODY CORPORATE 366611 [2017] NZCA 281

Citation

[2017] NZCA 281
Court

Court of Appeal

Appellant was in possession on 11 May 2009; the respondents' unilateral refusal to provide an access card (and continued insistence on unlawful protocol/deposits) unlawfully excluded the appellant and constituted trespass (and alternatively private nuisance); the exclusion caused loss recoverable from 11 May 2009 until access was restored on 15 December 2014.
17 Jun 2015

JACOBS v WAIKATO DISTRICT COUNCIL [2015] NZHC 1372

Citation

[2015] NZHC 1372
Court

High Court

The appeal is dismissed because the appellant failed to prove material or substantial physical damage to his land caused by the Council's drainage works; evidence indicated the 1993 works controlled stormwater and alleviated erosion and there was no showing of greater damage post-works than pre-works, so an essential element of private nuisance was not established.
11 Jun 2015

BLAKESFIELD LIMITED v FOOTE [2015] NZHC 1325

Citation

[2015] NZAR 1140
Court

High Court

Overhanging branches that extend materially over the plaintiff's land and exposed surface roots that together materially impede the establishment and use of the required five metre landscape mitigation strip constitute an actionable private nuisance; the defendants' estoppel defence failed because representations in rezoning documents described the existing environment but did not clearly guarantee preservation of shelterbelts such that it would be unconscionable to allow remediation, although limited equitable considerations justify retaining and pruning a subset of trees rather than wholesa…