JOHN CHEN-CHUNG HSU V WEDDINGS ETC LIMITED HC AK CIV-2009-404-001077 [2009] NZHC 949 (5 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                    CIV-2009-404-001077



                BETWEEN                       JOHN CHEN-CHUNG HSU
                                              Appellant

  
             AND                           WEDDINGS ETC LIMITED
                                              Respondent


Hearing:
       23 July 2009

Appearances: Appellant in person
             C F L Godinet for the respondent

Judgment:       5 August 2009


                             JUDGMENT OF STEVENS J


             This judgment was delivered by me on Wednesday, 5 August 2009
at 3pm
                           pursuant to r 11.5 of the High Court Rules.



                                 Registrar/Deputy
Registrar




Solicitors/Counsel:
C F L Godinet, PO Box 618, Shortland Street, Auckland 1140

Copy to:
J C Hsu, 1014A Scenic Drive
North, Swanson, Waitakere 0614




JOHN CHEN-CHUNG HSU V WEDDINGS ETC LIMITED HC AK CIV-2009-404-001077 5 August 2009

Introduction


[1]     John Chen-Chung Hsu, the appellant, appeals against a reserved decision of
Judge Joyce granting Weddings Etc.         Limited,
the respondent, an injunction to
restrain the appellant from directly or indirectly interfering with the respondent's
business. The
respondent operates a wedding venue at Scenic Drive North in the
Waitakeres and applied for an injunction as the appellant was frequently
mowing his
lawns during wedding ceremonies held on the lower garden.


[2]     Judge Joyce issued a decision on 2 October 2008 holding
that the appellant's
actions were an actionable private nuisance and granting the respondent injunctive
relief. Judge Joyce provided
both parties with the opportunity to file submissions to
identify any patent or latent ambiguities in the terms of the injunction
proposed.
Later, Judge Joyce issued a further judgment fixing the terms of the injunctive relief
to correspond with the interim terms.
In summary, the respondent was required to
give the appellant one month's written notice of impending wedding ceremonies and
their
start times, the appellant must not mow his lawns in the period 30 minutes
before the ceremony and 60 minutes after it and the appellant
must not distribute
material to clients, guests or visitors of the respondent.


[3]     The appellant submitted that the injunctive
relief was not justified. The
appellant submitted in support that there were no legal grounds for claiming private
nuisance and that
it is unreasonable for the respondent to hold wedding ceremonies
on the boundary of his property. He further contended that the Judge's
decision and
the relief ordered did not achieve a workable balance between the conflicting
interests of the parties.


[4]     The
respondent submitted that the appellant does not have a defence, that the
District Court Judge correctly applied the legal principles
regarding private nuisance
and that the terms of the final injunctive relief were appropriate.

Factual background


[5]    The
property owned and occupied by the respondent at Scenic Drive North
has an area of 4,058 square metres, which immediately adjoins
that owned and
occupied by the appellant. The respondent operates a private function centre known
as Cassels on the land. The centre
has a liquor licence, the venue itself having been
used as a café/restaurant/function centre for over 40 years.


[6]    The respondent,
owned by Mr and Mrs Humphrey, purchased the venue in
March 2004.     The respondent then closed the premises for three months for
substantial refurbishment. The respondent was successful in obtaining a certificate
of compliance pursuant to s 10 of the Resource
Management Act 1991 from the
Waitakere City Council (the Council). The certificate allowed the continuation of a
restaurant, café
and function centre between the hours of 10am and midnight.


[7]    In March 2008, the Council issued an extensive decision following
a further
application by the respondent. The Council gave consent to the operation of a
function centre as a discretionary activity "which is
a non residential activity with
associated vehicle access and traffic generation, exceeds permitted noise standards,
allows for the
sale of liquor and amplified music outside permitted hours and
includes retrospective consent for a building on a sensitive ridge
line, impermeable
surfaces and a sign within the road reserve". There were extensive conditions
attached to the granting of this
consent. However, the consent did not restrict how
and where outdoor ceremonies may be conducted.


[8]    The respondent complained
that the appellant has interrupted wedding
ceremonies by mowing his lawns precisely when the ceremonies started. There were
a number
of incidents involving interruption of, or interfering with, wedding
ceremonies by the appellant. The first incident was on Sunday
5 February 2006.
The appellant started his lawnmower as the bride commenced her walk up the aisle
to the pergola. The appellant called
the police. The police attempted to mediate.
Afterwards, the appellant served a trespass notice on Mr and Mrs Humphrey.

[9]   
The next incident occurred on Sunday 21 January 2007. Again, the appellant
started his lawnmower as the bride commenced her walk
to the pergola. Because of
the trespass notice, Mr Humphrey asked the chef to approach the appellant to stop
the mowing. The appellant
stopped for ten minutes or so before starting again. The
appellant started his lawnmower again in the middle of the exchange of vows.


[10]   On 10 March 2007, the appellant started his lawnmower as the bride began to
walk up the aisle. Mr Humphrey directed two
staff members to ask the appellant to
stop while the ceremony was going on. The appellant responded by shouting loudly
so that the
guests could hear him and the celebrant had to raise her voice to be heard
over him.


[11]   Further problems occurred on 31 March
2007 when the appellant started his
lawnmower as the bride walked up the aisle, during the signing of the register and
when the recessional
walk followed.         Mr Humphrey attempted to speak to the
appellant. Violence broke out and the appellant was charged with assault
with a
weapon. The appellant was convicted, but discharged on appeal.


[12]   The following day, Sunday 1 April 2007, the appellant
started his lawnmower
as guests were proceeding to the garden for the start of a ceremony. The police were
called and the appellant
turned his lawnmower off.


District Court decision


[13]   The District Court Judge first summarised the applicable principles,
the
background facts and the evidence as outlined above. The Judge then concluded:

       [107] I am regrettably driven to the conclusion
that his [the appellant's]
       timing was nothing but deliberate. In my view he has developed an
       implacable attitude to
the whole issue and, unless restrained, will resume, to
       use his own word, "interference".

       [108] Mr Hsu cannot, or
will not, see any error at all in his ways.
       Whatever the way in which Mr Godinet sought to identify possible room for
   
   rational approach to matters, the response of Mr Hsu was always negative.

       [109] He has no intention of avoiding conflict
by timing his lawnmowing
       activities so as to avoid the disruption of wedding ceremonies. It is almost
       as if he sees
it as `his duty' to be obstructive.

       [110] Neither in his demeanour before the Court, nor in what he said when
       giving
evidence, were there any signs of reasonableness.

[14]   The Judge then considered whether or not the appellant's lawnmowing
constituted
an unreasonable interference with the right of the respondent to the use
and enjoyment of its land and the facility that it encompasses.
The Judge stated:

       [120] I must be conscious here that the function of the law of private
       nuisance is to strike a fair
and workable balance between conflicting
       interests of neighbouring occupiers and owners so as to reconcile, as best
       one may, the interests of
the one seeking to use land as he or she thinks fit,
       with the other's interest in the quiet enjoyment of their property.

       [121] On the evidence before the Court, Weddings Etc is doing nothing
       more, nor less, than to make legitimate use of
the resource management and
       related rights to which it has been entitled.

       [122] It is not as if its property was recently
converted to the current use.
       To the contrary, the fact is that- in greater or lesser degree and for a matter of
       decades
now- it has been a venue for social function and celebration events
       if not quite the same as, then certainly akin to, those
at present pursued.

       ...

       [124] There was no room for doubt on the evidence I heard but that the use
       of the
mower from the moment when ceremonial events were getting under
       way constituted not simply an irritation but, in context,
an unbearable
       distraction and noise- and one that did not need to occur.

       [125] Given Weddings Etc's convincing evidence,
and especially the
       nature of its business, I hold the effect on it to be severe and I do not hold it
       at all reasonable
for Mr Hsu to take the stance that Weddings Etc can, and
       must, solve the problem by holding wedding ceremonies (if, against
his
       obvious preference, they are to be outdoors at all) somewhere outdoors that
       is well removed from his boundary.

       ...

       [129] I would prefer not to have to say so but, in all the circumstances
       here, I consider it necessary
to record my conclusion that Mr Hsu has quite
       deliberately set out to disrupt wedding ceremonies with intent to injure (to
       his perceived advantage) the undertaking of Weddings Etc.

       [130] The mower noise interference emanating, at the instigation
of
       Mr Hsu, from his property is inimical to the legitimate commercial uses of
       Weddings Etc.

[15]    The Judge then
indicated his intention to give injunctive relief along the lines
of the form being used on an interim basis at that time. But sensibly
the Judge
allowed the parties to file submissions on whether there were any patent or latent
ambiguities or other perceived deficiencies
in the terms of the relief.


[16]    On 23 December 2008, the Judge then dealt with the final form of the
injunctive relief. The
Judge noted that the appellant had sought to re-litigate the
matters, which was not open to him to do. The Judge then fixed the terms
of the
permanent relief as follows:

        [11]   ...

               (a) The plaintiff is to give the defendant one month's written
                   notice, to be left in the defendant's letterbox (or by email if the
                   defendant provides and
maintains an effective email address of
                   which the defendant has made and kept the plaintiff aware), of
      
            impending wedding ceremonies and their scheduled start times.

               (b) Such notice or notices may refer to
any number of wedding
                   ceremonies;

               (c) So long as the plaintiff has given notice accordingly, the
                   defendant (whether acting by himself or his servants, agents or
                   contractors) must not motor
mow his lawns, start or use his
                   motor mower or start or use any other machinery causing like,
               
   or similar, levels of noise at any time or times during the period
                   commencing 30 minutes before the scheduled
start of each
                   ceremony and ending 60 minutes after that scheduled start;

               (d) The defendant must
not at any time publish or distribute, or
                   incite the publication or distribution of, written or illustrated
 
                 material concerning the plaintiff's use of its premises as a
                   wedding ceremony venue to any clients, guests or visitors of the
          
        plaintiff.


Test on appeal


[17]    The appellant has a general right of appeal under s 72 of the District Courts
Act 1947.
Section 75 of the District Courts Act specifically provides that an appeal
under s 72 is to be by way of rehearing. The principles
applicable to general appeals
have recently been considered by the Supreme Court in Austin, Nichols & Co Ltd v
Stichting Lodestar
[2008] 2 NZLR 141. Giving the judgment of the Court, Elias CJ
stated that:

         [16] Those exercising general rights of appeal
are entitled to judgment in
         accordance with the opinion of the appellate court, even where that opinion
         is an assessment
of fact and degree and entails a value judgment. If the
         appellate court's opinion is different from the conclusion of the
tribunal
         appealed from, then the decision under appeal is wrong in the only sense that
         matters, even if it was
a conclusion on which minds might reasonably differ.
         In such circumstances it is an error for the High Court to defer to
the lower
         Court's assessment of the acceptability and weight to be accorded to the
         evidence, rather than forming
its own opinion.

[18]     With respect to those observations, the Court of Appeal in Rae v
International Insurance Brokers (Nelson
Marlborough) Ltd  [1998] 3 NZLR 190, had
observed that an appellate court should not review a factual finding unless
compelling grounds can be shown for doing so. However,
this may now be regarded
as being too broadly stated. The Supreme Court in Austin Nichols was careful to
limit the deference mentioned
in Rae to instances where findings of fact were
credibility dependent. The Supreme Court stated at [13] that:

         The appeal
court must be persuaded that the decision is wrong, but in
         reaching that view no "deference" is required beyond the "customary"
         caution appropriate when seeing the witnesses provides an advantage
         because credibility is important.

[19]   
 Accordingly, in a general appeal, the appellant has the onus of satisfying the
appellate court that it should differ from the original
decision. But the appellate
court must come to its own view on the merits: see Austin Nichols at [3] ­ [5]. I
therefore approach
the appeal on the basis that, after considering the record of the
evidence, the exhibits and the submissions made on behalf of the
parties, I should
make an assessment of the matters of fact and degree in the case under appeal. I
should consider the reasoning
of the District Court Judge in his decision in order to
determine whether the appellant has established that the decision or any
part of it is
wrong.


Private nuisance - applicable principles


[20]     It is necessary to briefly discuss the principles relating
to private nuisance.
Private nuisance is the unreasonable interference with a person's right to the use or
enjoyment of an interest
in land. The classic situation involves a defendant using his
or her land in a way that something dangerous or offensive is emitted
continuously

or intermittently from that land onto the neighbouring land of the plaintiff, where it
causes physical damage to the
land or interferes with the use and enjoyment of the
land by exposing it to smells, fumes, noise, vibrations or similar: see Todd
The Law
of Torts in New Zealand (5ed 2009) at 462.


[21]   The law of private nuisance seeks to strike a fair and workable balance
between the conflicting interests of neighbouring occupiers of land: see Todd at 463.
There is a need to balance one occupier's right
to use land as he or she thinks fit with
the neighbour's interest in quiet enjoyment of his or her property. In Hunter v
Canary Wharf
Ltd [1997] UKHL 14;  [1997] AC 655, the House of Lords held that an actionable
interference with a plaintiff's enjoyment of land generally arises from something
offensive
such as noise, dirt, fumes or smells. Their Lordships emphasised at 706:

       It is for an unlawful threat to the utility of his
land that the possessor or
       occupier is entitled to an injunction and it is for the diminution in such utility
       that
he is entitled to compensation.

[22]   To constitute an actionable nuisance, the interference with the plaintiff's use
and enjoyment
of land must be substantial and unreasonable. Proof of actual or
imminent harm is required. The appropriate balance between competing
rights is
found by reference to the standard of unreasonableness. An interference with a
person's use or enjoyment of land becomes
unreasonable and constitutes an
actionable nuisance when it exceeds what an ordinary person in the plaintiff's
position can reasonably
be expected to tolerate.


[23]   In Kennaway v Thompson [1981] QB 88, the English Court of Appeal
described the test at 94:

  
    Intervention by injunction is only justified when the irritation noise causes
       inconvenience beyond what other occupiers
in the neighbourhood can be
       expected to bear. The question is whether the neighbour is using his property
       reasonably,
having regard to the fact that he has a neighbour. The neighbour
       who is complaining must remember, too, that the other man
can use his
       property in a reasonable way and there must be a measure of give and take,
       live and let live.

[24]   In
Bank of New Zealand v Greenwood  [1984] 1 NZLR 525, Hardie Boys J
stated at 531:

           Whether or not the interference complained of is such that it ought to be
           stopped
is a question of degree, and so very much a matter of impression. It
           requires a finding of fact by the trial Judge, following
from the balancing of
           conflicting interests. The scales that are used are essentially those of
           reasonableness.
Thus not every interference or every nuisance is actionable,
           a point nicely put by Knight Bruce V-C in this oft-cited
passage from his
           judgment in Walter v Selfe [1851] EngR 335;  (1851) 4 De G & Sm 315, 322, typical of many
           of the delights of judicial prose dedicated to the law of nuisance:

                 "ought this
inconvenience to be considered in fact as more than
                 fanciful, more than one of mere delicacy or fastidiousness,
as an
                 inconvenience materially interfering with the ordinary comfort
                 physically of human existence,
not merely according to elegant or
                 dainty modes and habits of living, but according to plain and sober
        
        and simple notions among the English people?"

           Transposed to the antipodes, the test is simply whether a reasonable
person,
           living or working in the particular area, would regard the interference as
           unacceptable.

[25]    
  The factors relevant to determining whether the interference is unreasonable
include the nature of the harm and the relevance of
locality and the time, duration
and intensity of the interference. Therefore, the issue for the Court is whether the
interference
complained of is unreasonable in the sense that it exceeds the level that
a reasonable occupier, tolerant of the reasonable activities
of a neighbour, would
regard as acceptable. This is a question of fact.


[26]       Once private nuisance is established, injunctive
relief is available as a
remedy. The grant of injunctive relief is discretionary. The Court has jurisdiction to
grant an injunction
whenever required by justice: TV 3 Network Ltd v Eveready New
Zealand Ltd  [1993] 3 NZLR 435, 438 (CA). However, where a violation of legal
rights is proven, and is likely to continue and damages will not compensate, then
prima facie the claimant is entitled to an injunction. Injunctions are generally sought
in two situations. First, where the defendant's
activities will continue to cause harm
to the plaintiff unless restrained. Second, where the plaintiff has not yet suffered
harm
but there is a strong possibility that a state of affairs on the defendant's land
will cause harm to the plaintiff unless something
is done to change that state of
affairs.


[27]       The usual prohibitory injunction simply orders the defendant to refrain from
causing a nuisance to the plaintiff, leaving it up to the defendant to reduce the
interference to a reasonable level or to cease
operations if required. In appropriate

circumstances, a mandatory quia timet injunction may be required. In Redland
Bricks Ltd
v Morris  [1970] AC 652, the House of Lords identified the principles that
guide the exercise of the Court's discretion as to whether to grant a mandatory
quia
timet injunction at 665 ­ 667. Such principles have been conveniently summarised
in Todd at 505 as follows:

       (i)    
A mandatory injunction can be granted only where the plaintiff shows
               a very strong probability on the facts that grave
damage will accrue to
               him or her in the future;

       (ii)    It must be shown that damages will not be a sufficient
or adequate
               remedy if such damage does happen;

       (iii)   The cost to the defendant of doing the work required
to prevent or
               lessen the likelihood of a future apprehended wrong is an element to
               be taken into account
where the defendant has acted reasonably,
               though in the event wrongly; and

       (iv)    If, in the exercise of
its discretion, the court decides that it is a proper
               case to grant a mandatory injunction, then the court must be
careful to
               express the injunction in very clear and specific terms so that the
               defendant knows exactly
what has to be done and can give proper
               instructions to contractors.


Appellant's submissions


[28]   The appellant
submitted that it is unreasonable for the respondent to hold
wedding ceremonies on the boundary directly next to his land.      
              The appellant
referred to various matters to support this submission including that the respondent's
business is a
commercial activity in a residential area, that wedding ceremonies
should be limited to weekdays, the respondent should use noise
control, and that an
acoustic fence should be built as a noise buffer. The appellant also submitted that
lawn mowing is a common
residential activity.


[29]   The appellant submitted that there are no legal grounds for claiming private
nuisance. The appellant
further submitted that he had never mowed his lawn in a
malicious way with intention to interfere with the respondent's business.


[30]   The appellant also disputed the terms of the injunctive relief. The appellant
submitted that it is not reasonable to require
him to mow his lawns at times around
those that suit the respondent's business. He did not consider it appropriate that he

should
be the subject of written notice setting out the times of weddings, meaning he
could not mow his lawns at those times.


[31]   
 At the hearing, the appellant provided a helpful summary of his key points.
In summary, the appellant emphasised that the underlying
issue is the conflicting
interests of neighbours and that he sought to achieve a workable balance between
these conflicting interests.
The appellant also submitted that his solution to use his
lawnmower on a Sunday only had not been properly considered by the District
Court
Judge.


Respondent's submissions


[32]     Counsel for the respondent filed written submissions contending that the
District
Court Judge correctly set out the principles relating to private nuisance and
properly applied the principles to this case. The respondent
submitted that the
appellant had failed to show any basis for setting aside the District Court Judge's
decision either on the facts
or the law.


[33]     It was not necessary to hear further from counsel at the hearing.


Issues


[34]     The issues to be determined
in this appeal are as follows:


         a)     Has private nuisance been established on the facts; and


         b)     Is there
a proper basis for setting aside the injunctive relief?


Discussion


[35]     The first question is whether the ingredients of
tort of private nuisance have
been established. The starting point is the District Court Judge's conclusion that the

respondent
is using its resource management and related rights legitimately. There is
no proper basis upon which such conclusion may be challenged.


Private nuisance established


[36]    The next question is whether the appellant's use of his lawnmower during
wedding ceremonies is an unreasonable interference
with the respondent's right to
use or enjoyment of their land. In this context, it is necessary to deal with the
appellant's submission
that the District Court Judge did not find a fair and workable
balance between the parties.


[37]    The District Court Judge carefully
analysed the legal principles and the facts
and concluded that the appellant's actions were deliberate and constituted an
unreasonable
interference by the appellant. Given the nature of the respondent's
business, the Judge found that the appellant's actions had the
potential to cause, and
did cause, severe and unreasonable harm to the respondent. The findings of the
Judge as summarised at [120]
to [134] of his decision clearly establish all of the
necessary ingredients for the tort of private nuisance.


[38]    I am satisfied,
as was the Judge, that it would not be appropriate to require
the respondent to hold outdoor wedding ceremonies in a different location.
The
respondent's actions are within the terms of their resource consent. The wedding
ceremonies do not realistically pose a great
inconvenience to the appellant. The
appellant has not established either from the evidence or on the basis of his
submissions that
the decision of the Judge was wrong. On the contrary, the Judge's
factual findings and overall conclusions on proof of the tort were
carefully reasoned
and clearly articulated. The appellant has failed to establish any basis for contending
that the District Court
Judge did not strike a fair and workable balance between the
conflicting interests of the parties.


Injunctive relief


[39]   
The next question is whether the respondent was entitled to injunctive relief.
The appellant submitted at the hearing that the Judge
failed to take into consideration

his proposal. But the granting of injunctive relief is discretionary. The appellant has
the onus
of showing that the District Court Judge acted on a wrong principle or that
he failed to take into account a relevant matter or that
he took into account an
irrelevant matter or that he was plainly wrong: May v May  (1982) 1 NZFLR 165, 170
as applied by the Court of Appeal in Harris v McIntosh  [2001] 3 NZLR 721 at [13].
The High Court can only interfere with the District Court Judge's decision in limited
circumstances.


[40]   I agree with
the Judge's conclusion that the evidence points towards the
appellant continuing to disrupt wedding ceremonies.         This being
the case, the
respondent will inevitably face severe damage to its business. There is no doubt that
damages would not be a sufficient
or adequate remedy.            This is because the
appellant's actions would ruin or irreparably damage the respondent's business
and
deter future clients. On the other hand, the cost to the appellant in not being able to
use his lawnmower during wedding ceremonies
is unlikely to be significant. There
is no reason why the appellant should use his lawnmower specifically when wedding
ceremonies
commence. Further, the terms of the injunctive relief are clear and
specific in what the appellant must not do.


[41]   The appellant
has been unable to show that the District Court Judge's
decision to grant injunctive relief was wrong. I am satisfied that in the
circumstances
of this case, the respondent was correctly granted injunctive relief of the type
ordered. The appellant's earlier unreasonable
attitude has prevented the achievement
of a reasonable solution between the parties.      It is clear now that, without the
injunction,
the appellant is likely to continue to interrupt the wedding ceremonies by
the use of his lawnmower. The appellant's claims that
he will not disturb any
wedding ceremonies on purpose are simply not credible. The appellant's contention
that he would confine himself
to using the lawnmower on Sunday only is no answer.
There is evidence that, even if mowing were restricted to Sundays, the appellant
would continue to disturb wedding ceremonies. This is not acceptable. Neither is it
lawful. The respondent is entitled to run its
business without the intentional and
unreasonable disruptions from the appellant.

[42]     Further, the District Court Judge did
consider the proposal submitted by the
appellant prior to setting the final terms of the injunctive relief. The difficulty was
that
the appellant attempted to re-litigate the matter in his submissions on the terms
of the injunctive relief. The Judge stated:

 
       [4] In response, and on 17 October 2008, the defendant filed a 10 page
         memorandum which, I am bound to observe, sought-
in part at least- to re-
         litigate and/or question the Court's judgment on the merits- the very kind of
         response
that I had made clear was not open to the parties.

         ...

         [7] In his memorandum, counsel asserted, with fair accuracy,
that the
         defendant was indeed attempting to re-argue the matter of the grant of the
         injunction, or at least to
reduce the ambit of its current terms so that, in
         particular, he might start or use his lawnmower when he chose on a Saturday
         or Sunday and retrieve the ability to make some form of an approach to
         guests of the plaintiff.

         [8] That,
certainly, was one way of reading what the defendant propounded.

[43]     The Judge did consider the appellant's proposal. But he
rejected it as being
inappropriate.     Similarly, I do not consider that the appellant's proposal is
appropriate in the circumstances
of the case.


[44]     The terms of the injunction are reasonable and necessary for the justice of the
case. The appellant has failed
to establish any reason for disturbing the terms of
relief ordered by the Judge. The terms adequately deal with the factual situation
and
provide an appropriate balance between the rights of both the appellant and the
respondent.


Result


[45]     For the reasons
discussed above, the appeal is dismissed.


[46]     The respondent is entitled to costs on a 2B basis.




_________________________
                         Stevens J