Fence fight has costly lose-lose
The fallout over legal costs from Wellington’s monumental fence case has been lose-lose for the neighbours involved.
Both sides came away from the Environment Court unhappy with the costs result, but both had their appeals dismissed.
David Walmsley, and a related property-owning company, who built the fence that blocked his Roseneath neighbours’ million-dollar harbour view, still has to pay $72,500 in legal costs to his aggrieved neighbours.
And the neighbours, Peter and Sylvia Aitchison, have also lost an attempt to have Walmsley pay more like the $138,965.66 that was close to their true costs in the case to have the fence removed.
The structure – a fence from the Aitchison side and a play fort from the Walmsleys – became a cause celebre after it was built on or next to the boundary of their Roseneath properties. The Environment Court later ordered its removal.
But the Walmsleys were unhappy with the legal costs they were ordered to pay the Aitchisons, including arguing the costs were punishment.
Now a judge in the High Court at Wellington has said the costs were not to punish the loser but to reimburse the winning party, especially if they were put to unnecessary expense.
Justice Karen Clark did not agree that the Walmsleys had been punished. She said the judge was entitled to take into account that the structure they built had severe adverse effects on their neighbours and the Walmsleys went ahead knowing that would be the effect.
The Environment Court judge thought it was hard to avoid the conclusion that it was built with the intention of causing maximum impact on the neighbours.
However, he decided the reasonable daily rate for legal costs which the Walmsleys should reimburse was about half the $5830.50 the Aitchisons paid. He also disallowed the cost of an ‘‘outside’’ lawyer to help the Aitchisons’ usual lawyer.
Justice Clark confirmed the Environment Court approach to costs.
As for the costs on the costs appeal, Justice Clark thought each side should pay their own, but said if that was not accepted she would consider any ‘‘focused brief’’ submissions from them.
It was the second case the judge had to consider about the fence. Last month she upheld the way the Environment Court applied planning rules to the situation.
The Wellington City Council has decided not to appeal against that decision but a spokesman said it may have to go through a District Plan change process to deal with the implications of the court decision.