Duncan and Ors v Robin Eric Taylor and Ors

JurisdictionNew Zealand
CourtHigh Court
JudgeRodney Hansen J
Judgment Date31 May 2010
Neutral Citation[2010] NZHC 895
Docket NumberCIV 2007-404-296

[2010] NZHC 895


CIV 2007-404-296

Bruce Leslie Duncan Alison Lesley Duncan Bruce Cyril Mcniece As Trustees Of The Bl And Al Duncan Family Trust
Robin Eric Taylor
First Defendant


Lorraine Kathleen Elder Wyndham Trustees Limited
Second Defendants


Raymond Frederick Den Otter Sonia Edwards
Third Defendants


The Auckland City Council
Fourth Defendant


The Registrar General Of Lands
Fifth Defendant

KF Gould for Plaintiffs

SA Grant and K Dawson for First — Third Defendants (17–19 August)

AF Grant and EA James for First — Third Defendants (6 November) No appearance for Fourth and Fifth Defendants

Application for orders under the Property Law Act 2007 – Duncan and the defendants were owners of flats on a cross-lease — Duncan constructed a new building and retaining wall against the wishes of the owners which encroached on common land — application for relief under ss321 – 323 Property Law Act 2007 for a wrongly placed structure — application for an order for the creation of new plan that reflected the actual structure of the flats — application for contribution for a retaining wall to be repaired — the defendants applied for the removal of the encroaching parts of Duncan's building and compensation under s325 Property Law Act 2007 for unlawful occupation and damages for trespass.


Section 324 PLA (matters court can consider in determining application for relief) covered both intentionally and inadvertently wrongly placed structures. Section 323(4) PLA presupposed that relief could be granted despite the wrongly placed structure having been placed deliberately. Subject only to the restriction in s323(2,) ss323, 324 PLA permitted relief where it was just and equitable to do so. While it was reprehensible that D had ridden roughshod over the rights and wishes of the then owners, it was just and equitable to grant relief, subject to conditions as to compensation and costs. It would have been harsh and unduly burdensome for D to be required to remove the offending structure. It was over 20 years since the house had been built and while the owners had withheld consent they had done nothing to stop construction.

The defendants were entitled to be compensated for the encroachment. D's structure was wrongly placed in order to achieve a material advantage; it was placed with the knowledge that it contravened the rights of the other owners and it had unjustifiably enriched D. If the plans were amended to conform to the footprints of the existing buildings, D's would have effectively appropriated to themselves the freehold of the encroached area. There was also a loss of amenity value to the defendants in that there was a larger house on the land, some loss of privacy and loss of open common area. The defendants were entitled to compensation for the loss of development potential and an allowance for the loss in market value due to the loss of amenities. Although the present owners had acquired their property with knowledge of the outstanding title issues, it would have been wrong to deny them compensation.

D had erected and paid for the retaining wall for his own benefit. It was not consented to by the then owners. The wall had failed because it was constructed poorly and it would have been contrary to justice to require the defendant's to contribute to its repair.

The defendants' claims under trespass were for economic losses — they did not assert damage to land. The Limitation Act 1950 also applied and barred a claim for trespass 6 years after the cause of action accrued. This was a case of a continuing trespass — the defendants could recover for trespass that had occurred since the date 6 years before the claim was made but not for the preceeding years. The defendants had not asserted actual damage to the land — rather they had sought an award for wrongful use. However, the defendants' claim for trespass was made out but the claim for damages was not.

Application for an order to create a new plan to reflect the existing structures granted. Removal of the encroaching structure was impracticable. Defendants entitled to compensation.

JUDGMENT OF Rodney Hansen J

This judgment was delivered by me on 31 May 2010 at 3.30 p.m.,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy Registrar

Date: ………………………….




Background facts


Relevant history




Right to relief – wrongly placed structures


Just and equitable relief




Additional land


Loss of amenity


Encroachments on common area


Just and equitable compensation


Encroachment by defendants


Conclusion on compensation


Retaining walls and gardens







The plaintiffs and the first, second and third defendants are the owners of flats on land at Baddeley Avenue, Kohimaramara. Each has an interest in the fee simple of the land and is party to a registered cross-lease. (I will refer to the first, second and third defendants as the owner defendants in order to distinguish them from the fourth and fifth defendants who took no active part in the proceeding.


The owner defendants' flats are in a multi-level structure built in the 1950s which was converted into flats in the 1970s. The plaintiffs' flat (Flat 4) is a substantial stand-alone, two-level residence with carport built on an elevated site at the rear of the main building. It was built without the consent of the remaining owners in 1985 to replace a small one-bedroom cottage. The new structure exceeds the footprint of the existing flats plan (the plan) and, in two areas, encroaches on common property.


Flats 1 and 3 (owned by the second defendants and first defendant respectively) also encroach on common property. The original plan did not accurately depict their structure and subsequent alterations have led to the encroachment.


In this proceeding, the plaintiffs seek orders under the Property Law Act 2007 (the Act) for the creation of a new plan that accurately reflects the structures of the flats which exceed the existing footprint. They also seek a contribution from the first, second and third defendants to the cost of repairing a failed retaining wall on common property.


The owner defendants oppose the plaintiffs' claim to relief. They seek removal of the encroaching parts of the plaintiffs' building and compensation for their unlawful occupation. If there are to be amendments to the plan to recognise the encroachments, the defendants seek compensation and costs from the plaintiffs. They also seek damages for trespass to common property.

Background facts

The land on which the structures are built lies between Baddeley Avenue and Siota Crescent. The land slopes upward from east to west from its frontage on Baddeley Avenue. When the cross-lease development occurred in 1976, there were two buildings on the land. At the eastern, or Baddeley Avenue end, there was a two— storied house built in the 1950s. Behind, and sited in about the middle of the property, there was a small cottage, originally built in 1961 as a storeroom and workshop and later converted for residential use. The cross-lease development involved partitioning the house into three flats (Flats 1 – 3) and designating the cottage as a fourth flat. Flat 1 is a studio flat, Flat 2 has two bedrooms and Flat 3 has one bedroom.


There is a common area surrounding the house and a common right-of-way along the southern boundary which, prior to the re-development of Flat 4, permitted access by the occupiers of Flats 1, 2 and 3 to the Siota Crescent end of the property. The evidence is that on occasions the occupiers would use that area of the land for picnics. It was grassed and permitted pleasant views of the Hauraki Gulf and Rangitoto.


As required under the Unit Titles Act 1972, which permitted the cross-lease form of ownership, the fee simple in the land is owned by the occupants of the flats as tenants in common (the owner of Flat 2 as to two-fifths and the others as to one— fifth each) and all tenants join in leasing each flat to its occupant for a period of 999 years. Clause 9 of the Memorandum of Lease of each flat prohibits structural alterations to the flat without the consent in writing of a majority of the lessors. It provides:

No structural alterations

(1) The lessee shall not (without the consent in writing of the lessors or a majority of them for that purpose on every occasion first had and obtained) make any structural alternations to the flat or to any partition walls therein or to any passageway or stairways leading thereto nor take any action which might constitute danger or risk to the said building.


Clause 11 of the leases makes provision for each lessee to have the right of exclusive occupation of the flat and for each to have use of common property. It reads as follows:

Lessee's right to exclusive occupation

The lessee performing and observing all and singular the covenants and conditions on his part herein contained and implied shall quietly hold and enjoy the flat without any interruption by the lessors or any person claiming under them together with the use in common with the other lessees of flats in the said building of the drives, paths, and grounds on the said land and of any stairways, balconies, and verandahs in the said building for access only from such flats.

All owners are required to pay one-quarter of the cost of repairs, maintenance and other charges in respect of common property.


To the rear of Flat 4 is an area of land, designated Area B, to which the lessee of Flat 4 has exclusive access. This is achieved by cl 13(a) in Schedule C of the lease...

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