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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> De Zille -v- Fernando [2015] JRC 267 (21 December 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_267.html Cite as: [2015] JRC 267 |
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
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Between |
Graham de Zille |
First Plaintiff |
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Alison de Zille |
Second Plaintiff |
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And |
Martin Robert Fernando |
Defendant |
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Advocate M. P. Cushing for the Plaintiffs.
Mr M Fernando appeared in person.
CONTENTS OF THE JUDGMENT
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Paras |
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1. |
Introduction |
1 |
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2. |
Procedural history |
2-16 |
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3. |
Decision |
17-36 |
judgment
the master:
1. This judgment represents my detailed written reasons in respect of the costs of the proceedings brought by the plaintiffs against the defendant.
2. The present proceedings were commenced by order of justice issued on 16th August, 2013. In these proceedings the plaintiffs claimed that the defendant had encroached on the plaintiffs' land, known as Field 270. The defendant is the owner of a property known as Century House the west and part of the northern sides of which adjoin Field 270. The particulars of the encroachment were set out at paragraph 6 of the order of justice as follows:-
"i. Part of the brickwork for the gated entrance constructed by the Defendant at the north-west corner of Field 270 is built on and encroaches over the boundary line of the plaintiffs' property.
ii. The Defendant has removed and/or damaged and /or covered with earth the Plaintiffs' wall to the west of Field 270 and has therefore encroached onto the Plaintiffs' property.
iii. The Defendant has removed part of the earth bank to the south of Field 270 where it abuts Century House and has undertaken planting on the Plaintiffs' property.
iv. The buildings constructed by the Defendant at the northern boundary of Century House where that boundary abuts the southern boundary of Field 270 encroach onto the customary law offset owned by the Plaintiffs."
3. The defendant filed his answer on 23rd October, 2013. In response to the particulars set out above the defendant pleaded as follows:-
"6. Paragraph 6 is not admitted. As to the Particulars the Defendant shall aver:-
i. That the gated entrance to Century House is built within the splay area dependent upon the entrance to his property as stated in Paragraph 2 hereof;
ii That during the period in which the gated entrance to Century House was constructed, the Plaintiffs and/or either one of them regularly walked past the construction site and inspected it and at no time during the building process and/or immediately thereafter did they seek to raise an objection that the gated entrance was constructed so as to form any encroachment on to their land;
ii That the Defendant admits covering and building up the bank and stone wall to the west of Field 270 following the removal by him of a line of conifer trees on his land to the west of the stone wall, but did so in an attempt to provide the bank and stone wall with support as they were in a parlous state of repair and to stop further encroachment on to his property caused by tractors driving into and pushing over the bank;
iii The Defendant denies removing part of the original earth bank to the south of Field 270. The Defendant admits covering and building up with earth this bank and other banks surrounding his property which had been neglected. He has since removed the additional earth he placed over the relief dependent upon the southern side of this bank co-extensive to the buildings or wall dependent upon Century House. He also planted cupressus leylandii along the relief of the bank, which he admits encroach upon the Plaintiffs' relief. This was planted solely for the Plaintiffs' benefit and at the suggestion of the Planning authorities in order to reduce noise complained of by the Plaintiffs emanating from the Defendant's collection of exotic birds. The Defendant remains willing to remove this hedge should the Plaintiff and/or the purchasers of the Plaintiffs' property Le Mottais Farm so wish.
iv The Defendant denies that any of his buildings encroach upon the relief dependent upon the southern boundary of Field 270."
4. Save for the leylandii referred to in paragraph 6 iii of the defendant's answer, the defendant denied that his property encroached upon Field 270 as alleged.
5. The plaintiffs filed a reply dated 13th November, 2013.
6. On 9th January, 2014, by consent, the matter was referred to the Viscount to conduct a Vue de Vicomte ("Vue").
7. Pursuant to directions given by the Viscount dated 4th March, 2014, affidavits were ordered to be filed. I refer to the affidavit of the first plaintiff and the defendant filed for the Vue later in this judgment. However in reading my decision I considered all the affidavits filed. On 8th October, 2014, a Vue took place which established the north-west, west and southern boundaries of Field 270.
8. The Vue determined that the western boundary of Field 270 was demarked by a historic stone wall, the footings of which were located under a bank which had been built up by the defendant. The defendant had asserted that the boundary was to the east of the existing bank. The Vue further determined the location of the north-western boundary of Field 270 with the result that the gated entrance of the defendant had in part been constructed over and across the boundary line on the plaintiffs' field. Finally, the Vue determined that the existing bank at the southern end of Field 270 was owned by the plaintiffs and represented the southern boundary. This meant that certain buildings used as aviaries and erected by the defendant did not encroach on the plaintiffs' relief.
9. Following the findings of the Vue the defendant voluntarily removed the encroachments caused by the gated entrance at the north-west boundary of Field 270 and rebuilt the entrance so it no longer encroached on the plaintiffs' boundary and relief. The defendant further removed part of the earth bank which had been built over the western boundary of Field 270 and over the plaintiffs' relief. The defendant further confirmed that he would acknowledge and respect the boundaries as established by the Vue.
10. The plaintiffs therefore did not see any further need to continue the proceedings to seek declaratory judgments in light of the fact that the defendant had acknowledged that he would respect the boundaries as determined by the Vue. While the plaintiffs had also claimed damages, the plaintiffs also saw no reason to pursue claims for damages when the defendant had moved his gate and earth from the bank on the western boundary.
11. The plaintiffs therefore sought to withdraw the proceedings but sought their costs because they had been successful in the Vue.
12. The defendant opposed the costs claims sought by the plaintiffs and contended that each party should bear their own costs. In respect of the western boundary it was contended that the boundary was only located when earth was removed to show the location of the existing original wall. The defendant in respect of the southern boundary had been successful because the boundary was found to be situated where the defendant contended it was located and there was no encroachment.
13. In paragraph 13 of his affidavit sworn on 26th June, 2014, the defendant deposed as follows:-
"13. On the boundary in the south west corner of field 270 as against the northern edge of my property there is a low bank. I build that bank as when I first acquired the property there was nothing there. An old bank was evident further east upon which there were some old trees, but as I have already mentioned the banks had never been maintained. I therefore created the bank that now exists projecting west from the existing bank and making a straight line along the same trajectory lining it up with the existing trees on the bank that remained."
14. I also refer to paragraph 14 of the defendant's affidavit which states as follows:-
"14. I had established aviaries behind the bank which housed my collection of rare parrots. Mr and Mrs de Zille had complained about the noise made by the birds and it had been suggested by them, or at least on their behalf, and by the Planning Department that I plant a leylandii hedge to try to create a screen and block out some of the noise, which I did approximately four years ago. Mr and Mrs de Zille have now complained in these proceedings that the leylandii hedge constituted an encroachment onto their relief, which I have accepted, and accordingly the leylandii hedge was removed in September 2013."
15. I observe in relation to this paragraph that, in his answer at paragraph 6.iii quoted above, the defendant immediately agreed to remove the leylandii and admitted this encroachment on the plaintiffs' relief. By the time of the Vue these trees had been removed as was noted at paragraph 19 of the first plaintiff's affidavit.
16. Paragraph 17 and 18 of the first plaintiff's affidavit dated 26th June, 2014, stated as follows:-
"I consider that it is clear from the aerial photographs that the buildings (which consist of aviary buildings) at the southern boundary of Field 270 have been built right up to but also cutting into the bank which demarked the southern boundary of Field 270. It is also clear from the aerial photographs that the customary law offset has not been respected in relation to those buildings.
Following the completion of the buildings, certain further works along the southern boundary of Field 270 were undertaken by Mr Fernando which resulted in part of the earth bank at the southern boundary being dug into and removed to allow for the planting of trees and bushes by Mr Fernando. At pages 17-21 of GBDZ1 are copies of photographs which were taken whilst these works were being undertaken which clearly show the removal of earth from the bank and the holes dug to permit planting. It is also clear from these photographs that earth, which presumably is the earth from the side of our bank facing Mr Fernando's property, has been piled on to the side of the bank facing Field 270 creating a new profile for the bank."
17. In terms of the decision I had to make, the parties were in agreement that I had jurisdiction to decide the question of costs where proceedings were being withdrawn and where there was no dispute that it was right for the proceedings to be withdrawn.
18. The parties were also in agreement that the approach I should take when deciding how to exercise a discretion as to costs is set out in Flynn v Reid [2012] (2) JLR 226 at paragraphs 12 to 14. I refer in particular to paragraph 14 which provides as follows:-
19. By reference to the matters in dispute between the parties, I consider it appropriate to consider each of the issues in dispute between the parties by reference to the outcome of the Vue. I took this approach because while a single Vue took place, the Vue had to determine the location of the north-west, western and southern boundaries, with encroachments being alleged in respect of the north-west and southern boundaries. I did not regard this dispute as a case where a plaintiff in overall terms in respect of its claim had been successful but had failed on certain arguments or certain factual assertions. As noted at paragraph 27 of Flynn v Reid, "A party's lack of success on some issues entitles a court to make a deduction but does not oblige it to do so."
20. Taking each of the complaints raised by the plaintiffs, the plaintiffs clearly succeeded in their complaint that part of the defendant's gate encroached over the north-west boundary of the plaintiffs' property.
21. Secondly, in relation to the western boundary, it was necessary to determine the boundary between the parties because it was disputed where that boundary was. In a letter dated 26th August, 2012, to the plaintiffs the defendant contended:-
"Over a period of years, the contractors working the field would drive the tractors into and on the bank pushing your bank further and further onto our land thereby altering the line of the boundary. The photos will show we have not tried to gain back any land from the field whatsoever and the stone wall is still in place but covered with ground to provide a more pleasant and maintenance free boundary than existed hitherto.
We have an early photo from years ago showing the boundary from the road to the boundary on the corner of your field next to our house, illustrating that the boundary followed a straight line, which means we have lost several feet of our land over the years as a result of the tractors damaging the original boundary wall and bank."
22. In a letter dated 22nd November, 2012, to Mr Bisson a former partner of Messrs. Appleby, the defendant stated:-
"At this moment I do not want to enter into any dispute with Mr and Mrs de Zille and will be more than happy to meet with you at the property to discuss any issues and show you that the existing wall which forms the boundary belonging to your clients, still remains in place and the work I carried out was on my side of the property. This does not alter the fact that over the years the contractors which have worked in the field to the West of my property, have damaged the boundary wall on numerous occasions and although we repaired the stones from time to time we have noticed that the bank and the wall have been moved, altering the line of the boundary."
23. While this letter did not lead to agreement, according to the plaintiffs as set in a letter dated 29th January, 2013, from Mr Bisson to the defendant, the defendant accepted that he had constructed a new earth bank on the plaintiffs' property. The relevant part of the letter contained the following:-
"You confirmed (and showed us evidence by way of residual elements of the original boundary wall) that you accepted that the new earth bank was erected entirely on the property of Mr and Mrs de Zille."
24. This statement was repeated in a letter dated 24th June, 2013, from Advocate Cushing to the defendant.
25. However, in a letter dated 9th July, 2013, from Benest & Syvret who were then acting for the defendant, Advocate Benest stated having sent an aerial photograph taken in 1980 "you will see that the bank in question then formed a straight line verifying my clients account that tractors in recent years have pushed the bank over and effectively destroyed it. My client rebuilt the bank on his property and has been maintaining it since." [emphasis added]
26. The same contention was maintained by the defendant at paragraphs 10 to 12 of his affidavit dated 26th June 2014 filed in relation to the Vue.
27. Having considered the affidavits including photographs, it is clear, following the outcome of the Vue, that the defendant had constructed a bank over the top of the boundary and therefore on the plaintiffs' land. The plaintiffs were therefore entitled to have such a bank removed which I am informed has now occurred to the satisfaction of the plaintiffs.
28. Equally there was uncertainty as to the precise location of the original wall that formed the boundary between Field 270 and Century House. In part therefore the Vue de Viscomte was of benefit to both parties in establishing the western boundary. Nevertheless the plaintiffs have established that the defendant in constructing a bank on the plaintiffs' land has encroached on the plaintiffs' land contrary to the defendant's arguments. To that extent the plaintiffs were successful, notwithstanding the mutual benefit of establishing the western boundary.
29. In respect of the southern boundary, I have set out paragraph 13 of the defendant's affidavit above. That affidavit was quite clear as to where the southern boundary was located and was accepted at the Vue. The first plaintiff did not file any evidence to suggest a different location for the southern boundary. However the plaintiffs maintained their argument that the defendant's aviaries encroached on the plaintiffs' relief.
30. The view I have reached therefore is that it was necessary for the southern boundary to be determined. I have also taken into account the fact that encroachment by the planting of trees did take place albeit the defendant's motivation for planting trees was to reduce the noise from his aviaries which is the ultimate cause of friction between the plaintiffs and the defendant. This encroachment was admitted as soon as an answer was filed and the trees were removed before evidence was filed for the Vue.
31. Finally, where the defendant has succeeded is in relation to the plaintiffs' assertion, maintained up to and at the Vue that an encroachment on the plaintiffs' relief had occurred. If this encroachment had been established there would have been significant consequences for the defendant who could have been required to have removed those parts of the aviaries and any other buildings that encroached on a relief. While most of the evidence focused on the north western and western boundaries, the claim maintained by the plaintiffs of an encroachment on the southern boundary was a serious issue with potentially significant consequences if the claim had succeeded.
32. Weighing all these factors in the balance, I do not consider it appropriate for the plaintiffs to recover the entirety of their costs where it was necessary to determine the southern boundary and where they maintained an allegation of encroachment up to and including the Vue which allegation failed and where no alternative case was advanced as the location of the southern boundary.
33. Equally I accept that the plaintiffs have been successful in relation to the encroachment on the north-western boundary of the defendant's gates and the encroachment onto Field 270 by the placing of earth over the western boundary wall.
34. While it would be possible to order costs orders in respect of different issues, I do not consider it appropriate to do so because it would be an impossible task to separate out which costs were incurred at which time in relation to which issue. The parties would end up arguing in the taxation process on the basis of guesswork. I therefore consider it appropriate to make one single cost order reflecting the views I have expressed above in respect of the outcome of the different issues between the parties.
35. By reference to situation (a) identified in paragraph 14 of Flynn v Reid, this is a scenario where I consider it just for the plaintiffs to be deprived of their costs in respective issues where they were unsuccessful namely in relation to alleging an encroachment on the relief of the southern boundary and not advancing any positive cases to the location of that boundary in response to the clear statement of the defendant at paragraph 13 of his affidavit set out above.
36. In arriving at this decision I have also taken into account the fact that in part it was necessary for the precise location of the southern boundary (although no positive case was advanced by Mr & Mrs de Zille as to its location) to be determined because there was no agreement and the location of the western boundary also had to be determined. The location of the boundaries was a benefit to both parties so that they had certainty for the future which justifies in part each party bearing some of the costs of these proceedings themselves
37. However the location of the western boundary was in dispute because, while it was agreed that the boundary was a wall covered by the earth bank, the parties argued about whether or not the location of the wall had been moved and whether or not it still represented the boundary line. It was also clear that the plaintiffs had to act to deal with the encroachment in respect of the defendants' gates and the encroachment on the western bank where much of the argument was focused. Here the plaintiffs have been successful. The plaintiffs therefore had to act and in my judgment had the better of the argument. This issue was also where much of the affidavit evidence focussed, where most of the argument took place and where, in my judgment, most of the cost was incurred. It would not be just in such circumstances to require the plaintiffs to bear their own costs in respect of issues where they were successful or to accept that the costs of the dispute about the southern boundary simply cancel out the costs of the dispute in relation to the north-western and western boundaries when the later were the main focus of the evidence and argument.
38. Taking all the factors into account, the view I have reached is that the defendant should pay the plaintiffs' 50% of the plaintiffs' costs on a standard basis, such costs to be taxed if not agreed.
39. In respect of the Viscount's assessment of his costs between the plaintiffs and the defendant which he split on a 65%/35% basis with the defendant bearing 65%, I do not propose to alter this assessment as the Viscount's costs have to be borne by the parties and split between them. This apportionment however reflects my own view that the plaintiffs had the better of the argument which I have reflected in the order I have made.
