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Kingdom of Tonga v Havea [2001] TongaLawRp 31; [2001] Tonga LR 172 (27 July 2001)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

CA 5/2000 and CA 6/2000

Kingdom of Tonga

v

Havea

Burchett, Tompkins, Spender JJ
17 July 2001; 27 July 2001

Damages – appeal against quantum – appeal allowed and damages reduced
Land law – damages – loss of amenity

The plaintiff (who lived in New Zealand) had been the holder of a tax allotment in Vava'u since 1983. The land shared a common boundary with an allotment held by Sione Tu'i 'Ofa (Sione Tu'i) who had a contract with the defendant (the Ministry of Works) to supply quarried rock for roading. In the course of quarrying the land of Sione Tu'i, the defendant crossed the boundary into the plaintiff's allotment and took away the topsoil and sub-structure. As well, the defendant had stockpiled some of the quarried rock on an adjoining part of the plaintiff's land. In August 1998, as soon as the plaintiff was informed of the situation, he came to Tonga. He was able to negotiate a resolution of his claim with Sione Tu'i which was recorded in writing. The issue of liability of the defendant to the plaintiff was left unresolved. The plaintiff laid a claim in tort against the defendant for damage to his land. The Supreme Court (Havea v Kingdom of Tonga [2000] Tonga LR 31) ordered damages of $9,526 in respect of lost surface of the land as the result of removal of road-building material, and damages of $17,500 for what the trial judge called "Damages at large, including trespass onto the land, tree loss and the loss of amenity." The Kingdom of Tonga was also ordered to pay the costs of the plaintiff. The Kingdom of Tonga appealed the liability to pay damages in the sum of $27,026, and the order that the Kingdom pay the whole of the costs of the plaintiff. The cross-appeal by the landholder sought that the quantum of damages awarded be increased in conformity with a valuation report prepared by a land valuer Siope Lomu, who assessed compensation in the order of $112,000.

Held:

1. With respect to the cross-appeal the Court found that the valuation evidence for the cross-appellant was the subject of vigorous challenge, and the trial judge did not accept it, as he was entitled to do. The cross-appeal was dismissed with costs to be agreed or taxed.

2. It was held that it would be wrong to allow both the value of that part of the allotment lost, and the value of the trees lost. An amount of $8,500 for loss of amenity and for those factors subsumed under the heading "Damages at Large" might be regarded as generous, but the loss of amenity was serious. The amended amount awarded under that heading should not be disturbed.