New Zealand Case Law: Decisions & Judgments

Topic

Encroachment

Legal area

Court

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…
22 Sept 2017

LI v FORDE [2017] NZCA 426

Citation

[2017] NZCA 426
Court

Court of Appeal

Because the requisition effectively sought the vendor to establish boundaries or obtain a survey (i.e. to remove a limitation as to parcels), and limitations as to parcels are the purchaser's responsibility and cannot be requisitioned, the requisition was invalid; consequently the purchaser was not entitled to cancel and the appeal fails.
6 Dec 2016

BOURKE & TOTHILL v GUO [2016] NZHC 2932

Citation

[2016] NZHC 2932
Court

High Court

Intrusions occupying at least 50% of the easement width along its length constitute a substantial interference with the legal rights attached to the vehicular right of way; the fact the formed driveway currently permits access does not defeat relief where the legal boundaries are impeded and relief is necessary to preserve full use and future reconfiguration. Accordingly the respondent must remove or relocate the encroachments pursuant to the court's power under the Property Law Act 2007.
22 Jun 2016

BLAKESFIELD LIMITED v FOOTE & ORS [2016] NZHC 1354

Citation

[2016] NZAR 1112
Court

High Court

The plaintiff was entitled to costs on the High Court 2B scale but reduced by 35% to reflect partial success by the defendants; communications marked without prejudice simpliciter were inadmissible on costs and were put aside; certain disbursements and expert fees were disallowed or reduced and the court applied a 65:35 success ratio to disbursements, resulting in orders for $24,705.85 costs and $18,359.29 disbursements in favour of the plaintiff.
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…
30 Apr 2015

GRAFTON ROAD LIMITED v WHITE & ORS [2015] NZHC 880

Citation

[2015] NZHC 880
Court

High Court

Consolidation was refused as inappropriate given multiplicity of parties, differing legal issues, lack of readiness and risk of injustice. The uncontradicted expert evidence established a substantial encroachment; the corridor walls were not load bearing and could be removed and reinstated at reasonable cost. Given Council Notice to Fix, non-compliance with the Building Code, prejudice to other unit owners and refusal of respondents to accept a substituted plan, the Court exercised its discretion to order removal of the encroaching walls under s325 Property Law Act 2007 and to order a s74 Uni…
20 Aug 2014

BA TRUSTEES LTD v MA'A LTD [2014] NZHC 1967

Citation

[2014] NZHC 1967
Court

High Court

The court varied the easement under s 317 to permit the garage to remain within defined limits, declared the garage had a frontage wholly on the right-of-way, ordered the second defendants to remove the encroaching part by a date specified, and allocated costs to reflect the mixed outcomes: plaintiffs awarded costs against first defendants to 22 October 2013, plaintiffs awarded 50% of post-22 October 2013 costs against second defendants, and second defendants awarded costs on their counterclaim, resulting in a modest net payment by the second defendants to the plaintiffs.
3 Jul 2012

IAKOPO and ANOR v RUTHERFORD HC AK CIV-2012-404-001680

Citation

openlaw-dc1086a4_b6dc_425c_aa4d_679b865644b7.pdf
Court

High Court

The plaintiffs established a seriously arguable case that the inward-opening solid wooden gates encroach on the dominant land and constitute an unreasonable obstruction and substantial interference with the vehicular easement under s297 and the law of nuisance, damages are inadequate, and the balance of convenience favors interim relief ordering the gates to be kept open so they swing outward over the servient land as an interim injunction pending further order.
4 Mar 2011

BRUCE LESLIE DUNCAN V ROBIN ERIC TAYLOR HC AK CIV-2007-404-296

Citation

openlaw-fa31b69b_9895_4f95_be82_5e11923159e7.pdf
Court

High Court

Plaintiffs must pay defendants' costs; defendants are entitled to a 50% uplift on scale costs for steps incurred after the 30 October 2008 Calderbank offer because plaintiffs unreasonably refused a materially better settlement; only a single costs allowance is appropriate for the three owner-defendants due to their community of interest; junior counsel allowance is justified given complexity; quantum of scale costs awarded is $50,520 with disbursements claimed of $22,418.78 to be agreed or fixed by the Registrar.
31 May 2010

DUNCAN AND ORS V TAYLOR AND ORS HC AK CIV 2007-404-296

Citation

openlaw-10dcde8b_050d_450d_86d7_0d04815b7689.pdf
Court

High Court

The house and associated works fell within the definition of a 'wrongly placed structure' under s321 (including deliberate placement); the Court exercised the s323 discretionary power and granted relief to permit amendment of flats plans as just and equitable but refused a mandatory injunction for removal given the lapse of time, acquiescence and practical consequences; compensation under s325 was awarded to the owner defendants for appropriation of Area B, loss of development potential and loss of amenity in quantified sums; plaintiffs were not entitled to compel co-owner contributions to re…