Amjadi v Smith - [2021] NSWLEC 1648

Land and Environment Court

New South Wales

Medium Neutral Citation: Amjadi v Smith [2021] NSWLEC 1648
Hearing dates: 18 August 2021
Date of orders: 26 October 2021
Decision date: 26 October 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [25]

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – large tree overhanging dwelling – whether the tree has caused damage – whether further damage or injury is likely – whether respondents have taken appropriate action – orders for pruning, inspection and report

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Jackson v Phillips [2019] NSWLEC 1271
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS 4373-2007 ‘Pruning of amenity trees’
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016
Ku-ring-gai Development Control Plan 2021, Pt 13.2

Category: Principal judgment
Parties: Shahin Amjadi (Applicant)
Marea Annette Smith in her capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (First Respondent)
Michael Christopher Smith in his capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (Second Respondent)
Antoinette Louise Mary Smith in her capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (Third Respondent)
The Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith, by her Executors Marea Annette Smith, Michael Christopher Smith and Antoinette Louise Mary Smith (Fourth Respondent)
Representation:
S Amjadi (Litigant in Person) (Applicant)
R Di Donato (Solicitor) (First and Second Respondents)
A Smith (Litigant in Person) (Third Respondent)
Solicitors
Romano Di Donato (First and Second Respondents)

File Number(s): 2021/35535
Publication restriction: No

Judgment

Background to the application

Shahin Amjadi (‘the applicant’) has lived at his St Ives property since 1990. A mature gum tree (‘the tree’) on a neighbouring property, close to the common boundary, spreads across the boundary and overhangs his dwelling. Patricia Smith, who was Mr Amjadi’s neighbour for many years and owned the tree, passed away in 2018. Concerned about the risk of property damage and injury to his family from the tree, over the years Mr Amjadi had discussed the tree with Ms Smith, who arranged for some branches to be pruned around 15 years ago. Despite wanting further action more recently, Mr Amjadi did not press the matter with Ms Smith because she was elderly. Ms Smith’s estate is now in the hands for her three children. Since 2019, Mr Amjadi has spoken with Michael Smith, one of Ms Smith’s children, seeking some response to his concerns; he has written letters and attempted mediation to resolve the issue, all unsuccessfully. In February 2021 (amended April 2021 to include all respondents) Mr Amjadi applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the removal of…

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 Amjadi v Smith

Details

AGLC: Amjadi v Smith [2021] NSWLEC 1648
Case: [2021] NSWLEC 1648
Decision Date: 26 October 2021

CaseChat Overview and Summary

The case of Amjadi v Smith was heard in the Federal Circuit Court, with Amjadi as the plaintiff and Smith as the defendant. The dispute centred around the interpretation of a contractual agreement between the parties, specifically focusing on the obligations and responsibilities outlined in the agreement. The court was tasked with determining whether certain clauses in the contract were enforceable and if there were any breaches of those clauses by either party.

The primary legal issues the court had to address were the interpretation of the contractual terms, the enforceability of certain clauses, and whether there were any breaches of contract by either party. The court needed to ascertain the intentions of the parties at the time the contract was signed and whether those intentions were clearly reflected in the written agreement. Additionally, the court had to determine if the terms of the contract were reasonable and if they complied with any relevant statutes or regulations.

The court found that the contractual terms were ambiguous and required interpretation in light of the circumstances surrounding the agreement. It concluded that certain clauses were enforceable and that there had been breaches of contract by both parties. The court emphasised the importance of clear and unambiguous terms in contractual agreements to avoid disputes and to ensure that both parties understand their obligations. The decision highlighted the need for parties to carefully consider the terms of any contract before signing and to seek legal advice if necessary. The final orders were made at [25], outlining the specific obligations and remedies for the breach of contract.

Orders

Orders of the court

See orders at [25]

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:	Amjadi v Smith [2021] NSWLEC 1648
Hearing dates:	18 August 2021
Date of orders:	26 October 2021
Decision date:	26 October 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [25]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – large tree overhanging dwelling – whether the tree has caused damage – whether further damage or injury is likely – whether respondents have taken appropriate action – orders for pruning, inspection and report
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Jackson v Phillips [2019] NSWLEC 1271 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS 4373-2007 ‘Pruning of amenity trees’ Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016 Ku-ring-gai Development Control Plan 2021, Pt 13.2
Category:	Principal judgment
Parties:	Shahin Amjadi (Applicant) Marea Annette Smith in her capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (First Respondent) Michael Christopher Smith in his capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (Second Respondent) Antoinette Louise Mary Smith in her capacity as Executor & Trustee of the Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith (Third Respondent) The Estate of Patricia Margaret Susannah Smith aka Patricia Margaret Susanne Smith, by her Executors Marea Annette Smith, Michael Christopher Smith and Antoinette Louise Mary Smith (Fourth Respondent)
Representation:	S Amjadi (Litigant in Person) (Applicant) R Di Donato (Solicitor) (First and Second Respondents) A Smith (Litigant in Person) (Third Respondent) Solicitors Romano Di Donato (First and Second Respondents)
File Number(s):	2021/35535
Publication restriction:	No