Figuratively, a row of poplar trees on the common boundary of two properties in Auckland’s rural suburb Dairy Flat stood in the dock: the Zheng family saying tree roots damaged their commercial tomato crop; neighbours the Lyndons claiming damages for trespass alleging the poplars were pruned in excess of permission given. Result: the Lyndons were ordered to pay $45,200 damages for the Zhengs’ loss of profits; a calculation made difficult by allegations the Zhengs were hiding income from Inland Revenue.
Litigation kicked off back in 2016, after negotiations over their dispute reached an impasse. The High Court was told the Zhengs had grown tomatoes under cover in a greenhouse on Postman Road since the 1990s. The Lyndons purchased next door in 2010. Poplars had been planted down their two hundred metre boundary line by the previous owner before the Lyndons purchase.
Discussions between neighbours over shading affecting plant growth resulted in an informal agreement by the Lyndons that the Zhengs could coppice the poplars. A misunderstanding as to the preferred height subsequently led to a dispute over how low the trees could be cut. The trees were taken out in late 2020.
The Zhengs sued for loss of profits; the Langdons sued for trespass.
What was initially a dispute about trees shading a greenhouse developed into a claim in the tort of nuisance with complaints roots from the poplars had grown in under the greenhouse, competing with tomato plants bedded into soil above weedmats. Evidence was given that poplar roots can spread up to fifty metres.
Justice Gault ruled the Lyndons were liable in nuisance, having to pay damages for tomato production lost after they were made aware in 2016 of root encroachment.
Assessment of damages was complicated by the Zhengs’ limited accounting records. It was alleged the Zhengs’ were hiding revenue received from cash sales. There was disputed evidence as to what level of production would have been achieved if there had been no root intrusion.
Justice Gault ruled the Zhengs were partly to blame for their continuing production losses; they emphasised shading from the poplars being the only issue without initially telling the Lyndons that they were having to regularly weed poplar roots out of their greenhouse.
Loss of profits were reduced by one-third as a result, with the Langdons ordered to pay $45,278 assessed as the Zhengs’ loss of profits for four growing seasons subsequent to 2016. Initially, the Zhengs had claimed loss of profits totalling $1.1 million assessed from date of the Lyndons Postman Road purchase.
The Langdons were awarded no damages for trespass. The trees cut back further without permission had been coppiced by agreement some two years previously. They were already damaged beyond recovery and were of little commercial value when trimmed further unlawfully.
Zheng Family Trust v. Lyndon – High Court (27.09.23)
23.169