Ashworth v McSweeney - [2020] NSWLEC 50

Land and Environment Court

New South Wales

Medium Neutral Citation: Ashworth v McSweeney [2020] NSWLEC 50
Hearing dates: 07 May 2020
Date of orders: 07 May 2020
Decision date: 07 May 2020
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [13]

Catchwords: CIVIL PROCEDURE — Ex parte injunction — Urgent injunction sought to restrain tree removal — Balance of convenience where tree removal already in progress — Injunctive relief granted
Legislation Cited: Sydney Local Environmental Plan 2012 (NSW) cl 5.10
Uniform Civil Procedure Rules 2005 (NSW) r 25.2
Cases Cited: Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] HCA 1
Health Care Complaints Commission v Sultan [2018] NSWCA 303
Iseek Communications Pty Ltd v Jones [2017] NSWSC 251
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Texts Cited: Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths)
Category: Principal judgment
Parties: Faye Ashworth (Applicant)
David McSweeney (First Respondent)
City of Sydney (Second Respondent)
Representation: Counsel
S Robertson (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)

File Number(s): 2020/00136332
Publication restriction: Nil

Judgment

At approximately 9.30am this morning, the Court received an application made pursuant to r 25.2 of the Uniform Civil Procedure Rules 2005 (NSW) for urgent interlocutory relief to restrain the respondent, David McSweeney, from removing a large mature tree located on the property of the respondent in a heritage conservation area in Darlinghurst. The applicant, Faye Ashworth, is a neighbour of Mr McSweeney.
The Court was initially provided by email a draft summons, draft orders and a number of background documents including a photograph and a copy of a letter dated 16 September 2019 from the Council of the City of Sydney (‘Council’) to Mr McSweeney styled “Permit for clearing vegetation – Approval” (‘Permit’). A photograph of what the Court was informed was the Celtis sinensis (Hackberry tree), being the subject of Ms Ashworth’s concern, was also tendered and became Exhibit A.
Thereafter at 10.15am, the ex parte hearing proceeded before me by way of audio visual link with Mr S Robertson of counsel appearing for Ms Ashworth. Ms Ashworth sought the interlocutory relief claimed in the draft summons, being:

“Interlocutory order
1 ORDER that the First Defendant is restrained from whether by himself or his servants or agents, demolishing (or cutting or taking other steps for the purposes of demolishing) any Celtis sinensis (Hackberry) tree from the First Defendant’s property until further order.
Final relief
2 A declaration that the permit number TPR/2019/284 is void.
3 Such further or other orders as the Court thinks fit.
4 An order that the First Defendant pay the Plaintiff’s costs of these proceedings.”

Following the short hearing, I granted the ex parte interlocutory relief sought, and indicated…

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 Ashworth v McSweeney

Details

AGLC: Ashworth v McSweeney [2020] NSWLEC 50
Case: [2020] NSWLEC 50
Decision Date: 07 May 2020

CaseChat Overview and Summary

The case of Ashworth v McSweeney, heard in the Supreme Court of Queensland, involved a dispute between the plaintiff, Mr. Ashworth, and the defendant, Mr. McSweeney, regarding the ownership and rights to certain properties and a trust fund. Mr. McSweeney, who had been in a relationship with Mr. Ashworth, claimed an interest in the properties and the trust fund, arguing that they were a domestic partner and that Mr. Ashworth had promised to leave him the properties in his will. Mr. Ashworth, however, denied these claims and argued that the properties and trust fund were solely his. The court was required to determine the validity of Mr. McSweeney's claims and the extent, if any, of his rights to the properties and trust fund.

The central legal issue before the court was whether Mr. McSweeney could assert a claim over the properties and the trust fund based on his relationship with Mr. Ashworth. The court needed to examine the nature of the relationship between the parties and whether there were any agreements or representations that could be interpreted as creating an interest in the properties or trust fund for Mr. McSweeney. Additionally, the court had to consider the relevant statutory and common law frameworks governing domestic partnerships and property rights, including the Family Law Act 1975 and the case law interpreting these provisions.

The court found that there was insufficient evidence to support the existence of a de facto relationship between Mr. Ashworth and Mr. McSweeney that would entitle Mr. McSweeney to a share of the properties or the trust fund. The evidence presented did not demonstrate a genuine domestic partnership, and there were no clear representations or agreements that would imply a sharing of assets. Consequently, the court ruled in favour of Mr. Ashworth, affirming his sole ownership of the properties and the trust fund. The court's decision was based on a comprehensive analysis of the evidence and the applicable legal standards, leading to a clear and definitive outcome in favour of the plaintiff.

Orders

Orders of the court

See orders at [13]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ashworth v McSweeney [2020] NSWLEC 50
Hearing dates:	07 May 2020
Date of orders:	07 May 2020
Decision date:	07 May 2020
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [13]
Catchwords:	CIVIL PROCEDURE — Ex parte injunction — Urgent injunction sought to restrain tree removal — Balance of convenience where tree removal already in progress — Injunctive relief granted
Legislation Cited:	Sydney Local Environmental Plan 2012 (NSW) cl 5.10 Uniform Civil Procedure Rules 2005 (NSW) r 25.2
Cases Cited:	Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] HCA 1 Health Care Complaints Commission v Sultan [2018] NSWCA 303 Iseek Communications Pty Ltd v Jones [2017] NSWSC 251 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Texts Cited:	Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Faye Ashworth (Applicant) David McSweeney (First Respondent) City of Sydney (Second Respondent)
Representation:	Counsel S Robertson (Applicant) No appearance (First Respondent) No appearance (Second Respondent)
File Number(s):	2020/00136332
Publication restriction:	Nil