IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2018-404-2321
[2019] NZHC 1329	

IN THE MATTER	of a civil contempt	
BETWEEN	IAN VICKERY AND KAREN VICKERY
Applicants	
AND	CHRISTINE THOROUGHGOOD AND PATRICK THOROUGHGOOD
Respondents	

Hearing:	10 June 2019	
Appearances:	B Molloy for the Applicants
T Allan and G Steyn for the Respondents	
Judgment:	10 June 2019	

ORAL JUDGMENT OF MUIR J

Solicitors:
Haigh Lyon, Auckland
Grove Darlow & Partners, Auckland

VICKERY v THOROUGHGOOD [2019] NZHC 1329 [10 June 2019]

Introduction

[1]	This is an originating application by Mr and Mrs Vickery (the Vickerys) for orders finding Mr and Mrs Thoroughgood (the Thoroughgoods) in civil contempt and for orders that the Thoroughgoods pay a penalty of $10,000 plus costs for failure to adhere to the terms of an undertaking given to the District Court on 6 December 2017.

Background

[2]	The Vickerys and Thoroughgoods have, for a number of years, been consumed in a dispute relating to trees on the boundary between their properties. These trees have previously been referred to as “pioneer” trees, planted for the principal purpose of stabilising the bank that separates the protagonists. They are largely manuka and kanuka but include other species such as akeake and cordylines.

[3]	Their dispute came before the District Court by way of an application by the Vickerys under s 337 of the Property Law Act 2007.1 A five day hearing took place which concluded on 7 November 2016. On 13 April 2017 her Honour, Judge Mathers, published an interim decision in which she observed:2
[27] I am minded to find on all of the evidence, bearing in  mind the  findings of fact I have made, and acceptance of a suitable undertaking as to trimming of the trees as further referred to below, that I am not satisfied the plaintiffs, on the balance of probabilities, have established that an order is fair and reasonable and that an order is necessary in terms of the remaining subsections taken cumulatively.

[4]	The reference to a “suitable undertaking” is to one which was initially made orally by the Thoroughgoods during the course of the hearing. Their evidence at trial was that, since 2011, they had regularly trimmed the trees and they confirmed their continued willingness to do so during the hearing. However, her Honour regarded specificity around such undertaking as necessary if it were to be accepted as part of her decision declining relief.

1	Which authorises the Court to make orders for the removal or trimming of trees.
2	Vickery v Thoroughgood [2017] NZDC 7885 at [27].

[5]	Over the course of the succeeding months, various iterations of the undertaking were therefore negotiated with the Court. Ultimately, an undertaking was given in the following terms:

1.	“View Trees” are those trees which have the capacity to grow into the plaintiffs’ view, that is, those right of the contour line 93.0 on Exhibit Bundle pages 1423 and 143 (as one looks at the elevation of the house on Exhibit Bundle page 143), copies of which are attached marked appendix 1.

2.	“Non-view Trees” are those trees that do not have a capacity to grow into the plaintiffs’ view, that is, those left of the contour line 93.0 on Exhibit Bundle page 143 (as one looks at the elevation of the house on Exhibit Bundle page 143).

3.	“String Line” is reference to the line placed along the boundary by the defendant as depicted in the two photographs attached marked appendix 2 and appendix 3. The point at which the String Line attaches to the post in photograph appendix 2 is approximately 2,700mm above ground level measured on the Thoroughgood side of the fence line.4 The point at which the String Line attaches to the last fence batten before the String Line rises in appendix 3 is approximately 1,100 mm above ground level measured on the Thoroughgood side of the fence line.5

4.	“Present Height” refers to the View Trees which are approximately 0mm to 450mm above the String Line depending where on the String Line any measurement is taken.

5.	Provided the defendant has a legal or beneficial interest in the defendant’s property:-

(a)	She will continue to trim the View Trees to their Present Height;

(b)	She will continue to do so not more than twice a year;

(c)	Taking into account the time required for regeneration to occur naturally and subject to ensuring seedlings are protected, she will endeavour to trim the View Trees lower than their Present Height so as to be approximately to the String Line.

6.	Provided Patrick Thoroughgood occupies and or is domiciled at the property:-

(a)	He will continue to trim the View Trees to their Present Height;

3	Being a contoured typographical plan showing contour lines which correspond with contour elevation figures in Exhibit Bundle page 143, numbered as 88.0 (on the right hand corner of the plan) through to 93.5 (on the left hand corner of the plan).
4	Refer page 188 of Your Honour’s notes of evidence at line 25.
5	Refer page 187 of Your Honour’s notes of evidence at line 23.

(b)	He will continue to do so not more than twice a year;

(c)	Taking into account the time required for regeneration to occur naturally and subject to ensuring seedlings are protected, he will endeavour to trim the View Trees lower than their Present Height so as to be approximately to the String Line.

7.	No undertaking is given to trim the Non-view trees.

Dated 6th December 2017 Chris Elizabeth Thoroughgood Patrick Thoroughgood
[6]	The Vickerys’ appealed her Honour’s decision to this Court. In a reserved decision dated 3 September 2018, Fitzgerald J dismissed the appeal. She did not consider the District Court Judge to have erred in accepting the undertaking. Significantly, in the context of the current application, she noted:

[54] It seems that, absent the Thoroughgoods’ existing and continuing practice of trimming the trees (as now encapsulated in the undertaking), the Judge would have found there would ultimately be an undue obstruction of the Vickerys’ eastern views. From my own site visit, I could see that if the trees were left to grow to their full potential height, there would be obstruction of the easterly view, and at some point in the future, this would likely become an undue obstruction. However, it was also equally and very clear to me that the trees in their presently trimmed state do not create such an obstruction.

[footnotes omitted]

[7]	These observations reflect a site visit undertaken by her Honour on 20 August. By that date about five months had elapsed since the trees were last trimmed. The evidence of the Thoroughgoods is that at the time of her Honour’s inspection some of the trees had grown a metre or more above the maximum level that they were permitted to be in terms of the undertaking. That would be unsurprising given the species of tree that are involved. In particular, I take judicial notice of the fact akeake trees are a quick-growing native species.

[8]	Nevertheless, even taking into account the amount of regrowth over the intervening period, her Honour was clearly satisfied that there was no interruption of the Vickery’s eastern views at the time of her site visit. That underscores the reality of the position on this undertaking. The trees will continue to grow. There will be

intermediate way-points at which they have grown through what is described as their Present Height (PH) in the undertaking. Nevertheless there is no obligation on the part of the Thoroughgoods to conduct daily, weekly or even monthly inspections and trimming. Their obligation is to do so no more than twice yearly. However, as her Honour’s observations confirm, even allowing for regrowth during these intervening periods, the trees are unlikely in any material way to impact on the Vickerys’ views, provided that the undertaking is otherwise adhered to and trimming occurs in a timely (twice yearly, if necessary) fashion.

The undertaking in detail

[9]	A further and more detailed description of the undertaking is necessary. It defines a group of trees as “View Trees” by reference to contour lines. The undertaking also refers to a String Line which had been placed at the time of the District Court proceedings and to the fact that the PH of the trees (as at the date of the undertaking) was between 0 millimetres and 450 millimetres above the String Line.

[10]	The undertaking is in two parts. The first provides that the Thoroughgoods will continue to trim the View Trees to what is described as their PH, and that they will do so not more than twice a year. The second part of the undertaking relates to a commitment over time to endeavour to trim the View Trees approximately to the String Line.

[11]	It is obvious that this second part of this undertaking entails issues of judgment and assessment. Such assessment includes, among other things, the extent to which the established Pioneer Species are necessary to protect developing seedlings. It may, for example, be legitimate to consider whether an immediate reduction to the String Line compromises the health of the pioneer trees to an extent that they no longer fulfil this protective role. What will be required in order to meet both the letter and spirit of the second part of the undertaking is regular reassessment of the vitality of the underplanting and the requirement that it continue to obtain protection from the pioneer trees. The Thoroughgoods cannot simply ignore the undertaking that they have given in this respect. Compliance with it may, as the years elapse, require, for

example, expert evidence from an arborist as to whether the pioneer trees at PH have fulfilled their long term function or not.

[12]	The other parts of the undertaking are essentially straight forward, although they have been complicated by Mr Thoroughgood’s decision, at a time subsequent to the District Court proceedings, to remove the String Line, the Vickerys’ refusal to allow Mr Thoroughgood to reinstate it for the purposes of Fitzgerald J’s site visit, and the subsequent reinstatement by Mr and Mrs Vickery in a way that Mr Thoroughgood now challenges. I am not required to adjudicate further on this issue. There is, in my view, considerable immaturity on the part of all of the parties to this proceeding in relation to the removal and reinstatement of the String Line, and if it should, at any future stage, become a matter in issue there will need to be specific judicial direction for it to be reinstated.6 Hopefully that will not be necessary.

[13]	As is obvious in its terms, the undertaking requires no more than twice yearly pruning. No particular months are specified for this to occur. In my view, what is anticipated is a reasonable pruning rotation at (approximately) six month intervals (if that is necessary to maintain the trees at their PH). I do not, for example, regard it as either complying with the letter or spirit of the undertaking for the trees to receive two prunings at short interval, with the second addressing only minor regrowth and the trees then left for approximately another year before repeated sequential prunings.

[14]	Finally, I observe that as at the time the undertaking was given, the PH of the trees is described as being 0 to 450 millimetres above String Line. The obligation under the undertaking is to maintain the trees at what was there PH on 7 December 2018.7 The undertaking is not an invitation to allow all trees to grow to 450 millimetres above String Line. If there is evidence that establishes the height of individual trees was lower than approximately 450 millimetres above String Line as at December 2017, then there is an obligation to maintain such trees at that reduced height. The potential complications that emerge from this point are, however, likely to be addressed as circumstances allow reduction to String Line level.

6	If by Mr Thoroughgood, that may involve an order allowing him to come onto the Vickerys’ property for the exclusive purpose of doing so. Alternatively, the Court could direct its reinstatement by an independent third party, to the specification in paragraph 3 of the undertaking.
7	Assuming that to be a maximum of approximately 450 millimetres above String Line.

The contempt application

[15]	The application was filed on 15 October 2018, less than two months after Fitzgerald J’s site inspection when her Honour was “very clear” there was no present obstruction to the view. I am unpersuaded that, as at the date the application was brought, the trees were creating a material obstruction to the easterly view. I accept that as a result of spring growth they will have undoubtedly been taller than when observed by her Honour on 20 August but Her Honour’s conclusion left significant margin before material obstruction was likely.

[16]	It will be immediately apparent that the application was filed prior to the expiration of the first anniversary of provision of the undertaking.

[17]	Mr Molloy is critical of the earlier prune in March 2018, suggesting that it did not address the one or two trees at the far right of the 93.0 contour line, but such point was not taken until much later, and in the context of the current application.8

[18]	Courts demand a high standard of proof in relation to any allegation of civil contempt. That is because it is a serious allegation to make against any litigant. Indeed, what is required is proof to the criminal standard of beyond a reasonable doubt.9 In addition, and as Paterson J stated in Morris v Douglas,10 the breach must be shown to have been contumatious. Casual, accidental or unintentional disobedience of an order of the Court is not enough to justify either sequestration or committal. If the disregard is wilful, then it is contumatious.

[19]	The elements that must be proved beyond a reasonable doubt are that:

(a)	the terms of (in this case) the undertaking were clear and unambiguous, and were binding on the respondents;

(b)	the respondents had acted in breach of the undertaking; and

8	In addition, the photo which Mr Molloy relies on to establish a breach as at March 2018 was taken after 10 September 2018, when Mr Vickery reinstated the String Line. I cannot be satisfied beyond a reasonable doubt that it establishes a breach as at March 2018.
9	Malevez v Knox [1977] 1 NZLR 463.
10 Morris v Douglas (1996) 10 PRNZ 363.

(c)	the respondents’ conduct was deliberate, in the sense that he or she knew the obligation cast by the undertaking but nevertheless intentionally breached that obligation.

[20]	In its terms I regard the undertaking as sufficiently unambiguous. Clearly, the first part can more definitively be said to be so than the latter, but the second part of the undertaking can, in my view, also be given meaningful and sufficiently clear definition.

Discussion

[21]	I am satisfied that the requirements of a civil contempt were not established as at the date on which the application was filed or indeed at any time subsequently. I regard the application as having been premature. As Mr Allan submits, the Vickerys’ chose to “shoot first”, before awaiting the anniversary of the undertaking and the Thoroughgoods’ performance of their obligation.

[22]	Whatever criticisms may now be made of the adequacy of the Thoroughgoods’ trimming in March, I am not satisfied that there was any wilful intention on their part to breach the undertaking at that time. Given the history between the parties, the long delay in raising the point counts against that conclusion.

[23]	By October 2018 further regrowth had occurred, but the respondents had until 7 December to remedy that adequately. They did so on 24 November. The evidence establishes that at that time (having in the interim constructed a platform to allow the work to occur more efficiently), they uniformly trimmed all of the View Trees to a height no greater than 450 millimetres above the String Line. They were so pedantic in their attention to the letter of the undertaking that one tree (which appears from the photos to be either a manuka or kanuka, and which is the last of the View Trees by reference to the contour line) was trimmed to a vertical midline, leaving precisely half a fully grown tree on one side and a tree reduced to 450 millimetres above String Line on the other.

[24]	Mr and Mrs Vickery needed to “hold their powder dry” for at least another six weeks. I am not satisfied that as at mid-October there was any breach of the

undertaking, let alone to the standard and with the element of intentionality that is required. I am reinforced in that conclusion by the ex post facto evidence of what occurred in late November.

[25]	I therefore dismiss the application.

[26]	I make the following additional observations in the (perhaps forelorn) hope that it may assist the parties moving forward and prevent the necessity of any further applications.

(a)	The undertakings were solemnly given and absent a release from them they must be strictly adhered to.

(b)	The second part of the undertaking cannot be ignored by the Thoroughgoods. In the context of the application before me today, I am not prepared to identify a precise date by which, if no attempt is made to reduce the trees to String Line, I could confidently conclude that there had been a civil contempt. However, the Thoroughgoods should be on notice that if an extended period elapses, and there is neither any attempt to do so nor any expert justification for inaction, then they may in future find themselves in contempt of their undertaking.

(c)	The Vickerys should appreciate that given the types of tree which separate them from the neighbours there will be occasions during the course of the year when regrowth irritates them. It is clear to me that they are somewhat fixated on the issues in which they are engaged, but they need to understand that the undertaking does not require the Thoroughgoods to remove every shoot or leaf which at any given time exceeds a height of 450 millimetres above the String Line. Their obligation is to trim to PH, but no more than twice a year. Inevitably, that will involve intermediate periods when PH is exceeded.

[27]	In my view, this dispute has been allowed to escalate well beyond the level which could be expected of mature and sensible adults, and I express the hope that all parties will adopt a more considered approach to the ongoing management of their relationship as neighbours. Clearly, at the point the bank is fully stabilised by underplanting, there should be neighbourly consideration about whether the “pioneer trees” (which are those causing the greatest difficulty at this stage), need to remain. I accept that they  do  not  present  a  particularly  attractive  outlook  for  Mr  and  Mrs Vickery. and at some level their frustration with the Thoroughgoods retention of the trees is understandable. There must ultimately be a preferable outcome which better serves both the Vickerys’ understandable desire to maintain unimpeded views and the Thoroughgoods’ desire that the bank perform adequately from a stability perspective.

Costs

[28]	Mr Allan applies for an order for indemnity costs under r 14.6(4) of the High Court Rules. He makes a number of submissions in support.11

[29]	Firstly, he says that despite the fact that the trees received a scheduled pruning after the application was filed, there was no reference to this occurring in Mr Vickery’s reply affidavit of 20 December 2018. Mr Allan submits that the further affidavit simply maintained Mr Vickery’s thesis that the Thoroughgoods regarded themselves as the best arbiters of what was to occur and were not constrained by their undertaking. He describes that as a significant overreach. In my view, his criticism of this omission in the reply affidavit is legitimate.

[30]	Secondly, he says this application has essentially morphed from one alleging contempt to what  he  describes  as  a  remedial  action.  He  relies  on  para  4  of  Mr Vickery’s affidavit of 20 December 2018 in terms:

As the proceeding is simply to enforce the terms of the Undertaking I consider a response to any wider issues raised by Patrick unnecessary.

11	I have endeavoured to consolidate his various points into three principal arguments.

[31]	I do not consider there to be particular strength in this argument. Inevitably in cases such as this, where scheduled actions have been taken after the application was filed, the evidence has ultimately strayed into what has subsequently occurred and whether the undertaking continues to be honoured in letter and spirit. But I do not consider that a substantial point for costs purposes.

[32]	Thirdly,  Mr  Allan   says   that   insofar   as   I   have   already   identified   Mr Thoroughgood’s approach to one of the trees as pedantic, that matter was not brought before the Court until Mr Vickery’s further affidavit of 4 June 2019. He submits (I accept with some justification), that this is symptomatic of a moveable target.

[33]	Mr Molloy resists the application. He submits that there is good evidence that the prune that occurred in March 2018 did not comply with the terms of the undertaking. To an extent, that observation is fortified by the fact that the November prune appears to have been more extensive. I have already found that the Vickerys have failed to prove beyond a reasonable doubt that a default, and particularly a wilful default, occurred at that time. Nevertheless, it is a matter I may take into account in the overall assessment of costs.

[34]	Secondly, Mr Molloy refers to the fact that on 17 September 2018 a letter was forwarded to the solicitors for the Thoroughgoods, identifying that the trees had at that stage not been trimmed for a period of six months, that they had grown above the present PH as defined in the undertaking, and requiring that they be trimmed by 27 September. He says that the response to that letter was not that of parties intending to honour their undertaking. For example, they could have indicated when, prior to the first anniversary of the undertaking, the pruning would occur.

[35]	As I have already frequently observed in this judgment, the undertaking does not extend to trimming the trees any more often than twice annually. However, because six months had elapsed since the previous prune, the Vickerys could legitimately expect the issue to at least be coming back on the Thoroughgoods’ radar as at the end of September.

[36]	Rather than replying in the terms Mr Molloy suggests, Mr Thoroughgood responded by email dated 28 September saying that he required certain “unconditional undertakings” from the Vickerys. He alleged that seedlings had been sprayed with Roundup and soil spilt across the boundary. He said nothing about when the prune would occur. Nor indeed did he even commit to doing it.

[37]	This was not a case where there was mutuality of undertaking or when that could be demanded as a precondition to the Thoroughgoods’ performance. The Thoroughgoods’ undertaking stood alone and their allegations against the Vickerys (strenuously denied) were no basis for suggesting that their own obligations were in some way suspended.

[38]	The appropriate response at that time would, in my view, have been to say words to the effect “the trees will be pruned at some stage within the next six to eight weeks, that is our commitment, but while we are at it, we are concerned about your own activities and require your commitment that you will desist”. By contrast, the course adopted by the Thoroughgoods only served to increase the Vickerys’ anxiety about whether the undertaking would be adhered to.

[39]	Thirdly, I agree with Mr Molloy that Mr Thoroughgood’s reference in his 21 November 2018 affidavit to a mistake in the undertaking and the fact that it may be “best” if they were released from it altogether was far from helpful. I am unable to identify any mistake on the part of the Thoroughgoods in the assessment of the height of the trees above String Line at the time they gave the undertaking and, it seems to me inconceivable, given the attention that was being paid to the issue, that this is what occurred. Clearly, what they were in fact suggesting (confirmed in their counsel’s submissions for this hearing), is that, having regard to Fitzgerald J’s observation that even allowing for substantial regrowth over the 450 millimetre margin, the Vickerys’ views were unimpeded, their undertaking was excessively generous.

[40]	In the course of argument I indicated that if the Thoroughgoods seek to be released from their undertaking they should appropriately apply to the Court to which it was given. For present purposes, however, I accept Mr Molloy’s submission that this is indicative of a less than committed adherence to the undertakings on the part of

the Thoroughgoods. Indeed, they appear to have in mind that their commitment might be chiselled away or reduced in material respects. When I consider this step in combination with the evidence that in November 2018 one of the trees was literally pruned to a midline, leaving an unattractive specimen on the boundary and in close proximity to the Vickery’s house, it is difficult to escape the conclusion that the Thoroughgoods bring a somewhat less than generous approach to performance of their obligations.

Conclusion costs

[41]	This application for orders for civil contempt invokes a jurisdiction sparingly exercised by this Court. The Vickerys chose to take a serious step, in my view prematurely. It is appropriate in that context that there be some acknowledgment by way of a costs order in favour of the Thoroughgoods.

[42]	The jurisdiction of this Court is flexible in these circumstances. As Potter J pointed out in Jones v Sky City Auckland Ltd12 it can even be that, although a defendant is found not to be in contempt, costs are awarded to a plaintiff on account of breach of undertaking. In this case I have found that there was no breach of undertaking at the time the application was filed and so costs must follow in the usual way. However, I am not persuaded that an order for indemnity costs is appropriate for the reasons that I have set out above, and which might in summary be described as my concern about the way in which the Thoroughgoods have approached performance of the undertakings generally. Overall, the circumstances of the application are not such as to warrant the strong judicial condemnation that an award of indemnity costs presupposes.

[43]	In that context, I award costs against Mr and Mrs Vickery, and in favour of Mr and Mrs Thoroughgood on a 2B basis.

12	Jones v Sky City Auckland Ltd (2001) 15 PRNZ 432; HC Auckland CP229-SW/01, 6 July 2001.

[44]	My expectation is that counsel will be able to settle the quantum of costs. If there is any disagreement, memoranda may be filed.

Muir J