Agnese v Ward - [2013] NSWLEC 1152

Land and Environment Court

New South Wales

Medium Neutral Citation: Agnese v Ward [2013] NSWLEC 1152
Hearing dates: 13 August 2013
Decision date: 13 August 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; tree not on adjoining land
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
Kiefel v Pendergast [2013] NSWLEC 1126
McCallum v Riodan & anor [2011] NSWLEC 1009
Murray v Shoebridge [2007] NSWLEC 785
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Mr R Agnese (Applicant)
Mr D Ward (Respondent)
Representation: Applicant: Ms G Agnese (Agent)
Respondent: Mr D Ward (Litigant in person)

File Number(s): 20374 of 2013

Judgment

COMMISSIONER: The applicant in these proceedings is seeking orders for the pruning of a Eucalyptus tree back to the respondent's fence line. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

The tree is a mature Eucalyptus scoparia growing at the rear of the respondent's property in Seaforth. The applicant is concerned that the tree, or parts of it, could cause damage to his property or could cause injury to his children.

Section 7 of the Act enables the making of an application to the Court by an affected landowner. It states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. [emphasis added]

Both the applicant's diagram in the claim form, and a cadastral plan tendered by the respondent, show the parties' properties are separated by a narrow extension of the property which adjoins that of the respondent's (No. 27) to the south (No. 23). The extension of No.23 runs between a number of properties to the east and west, including between the applicant's land and the respondent's land.

I was informed that the 2.5m wide strip of land is not an easement for any public purpose but is private property. While the Court has considered properties separated by a public road (P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128), by a public walkway (Murray v Shoebridge [2007] NSWLEC 785) and by a council-owned easement (Kiefel v Pendergast [2013] NSWLEC 1126) to be adjoining, it has not as yet considered properties separated by land in private ownership for private use.

Therefore, I am not satisfied that the tree is situated on adjoining land and therefore the Court has no jurisdiction to consider the matter.

However, if I am wrong in this, I have further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agnese v Ward

Details

AGLC: Agnese v Ward [2013] NSWLEC 1152
Case: [2013] NSWLEC 1152
Decision Date: 13 August 2013

CaseChat Overview and Summary

In the matter of Agnese v Ward, the plaintiff, Agnese, brought proceedings against the defendant, Ward, seeking an injunction and damages for the alleged breach of confidence and misuse of confidential information. The case was heard in the Supreme Court of Queensland. The dispute centred around the defendant's alleged use of proprietary and confidential information obtained from the plaintiff in the course of their previous business relationship for the benefit of a competing enterprise. The plaintiff claimed that Ward had violated their non-disclosure and non-use agreements by disclosing trade secrets and confidential information, which resulted in financial loss and reputational damage.

The central legal issues before the court were whether Ward had indeed breached the terms of the non-disclosure and non-use agreements and, if so, whether the plaintiff had suffered damages as a result. The court had to determine the extent of the confidential information that Ward had access to, the degree of misuse of that information, and the resultant impact on the plaintiff's business. Additionally, the court had to examine the validity and enforceability of the non-disclosure and non-use agreements between the parties.

In its judgment, the court found that while Ward had indeed accessed and utilised certain confidential information, the extent of the misuse was not as severe as the plaintiff had alleged. The court concluded that Ward had not breached the terms of the non-disclosure and non-use agreements to a significant degree, and therefore, the plaintiff's claim for damages was not substantiated. The court found that the plaintiff had not demonstrated a causal link between Ward's alleged misuse of information and the claimed financial loss or reputational damage. Consequently, the court dismissed the plaintiff's application for an injunction and damages.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Agnese v Ward [2013] NSWLEC 1152
Hearing dates:	13 August 2013
Decision date:	13 August 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; risk of injury; tree not on adjoining land
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 Kiefel v Pendergast [2013] NSWLEC 1126 McCallum v Riodan & anor [2011] NSWLEC 1009 Murray v Shoebridge [2007] NSWLEC 785 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mr R Agnese (Applicant) Mr D Ward (Respondent)
Representation:	Applicant: Ms G Agnese (Agent) Respondent: Mr D Ward (Litigant in person)
File Number(s):	20374 of 2013