Land and Environment Court
New South Wales
Medium Neutral Citation: Assenheim v Ziaei [2016] NSWLEC 1483 Hearing dates: 24 October 2016 Date of orders: 24 October 2016 Decision date: 24 October 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed
Catchwords: TREES [NEIGHBOURS] Potential damage and or injury; tree removed by respondent prior to hearing Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Ricki Assenheim (Applicant)
Tahleah Ziaei (Respondent)Representation: Applicant: Mr R Assenheim (Litigant in person)
Respondent: Did not attend
File Number(s): 236521 of 2016
Judgment
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COMMISSIONER: The applicant owns a property in Castle Hill. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a Eucalypt from the rear of the respondent’s property. The applicant is also seeking reimbursement of the court filing fee.
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The orders are sought on the basis of concerns about damage to the applicant’s property as a result of falling branches and the risk of further damage or injury as a consequence of branch or whole tree failure.
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The file cover indicates that the respondent did not participate in the directions hearings and nor did they attend the on-site hearing. I am satisfied that the respondent was properly served and had notice of the proceedings.
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At the hearing, the applicant informed me that some days ago the respondent removed the tree. I observed the stump from the applicant’s property.
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As the tree poses no further risk of damage or injury, the matter is now resolved.
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In regards to the application fee, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
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As a consequence, the Orders of the Court are:
The application is dismissed.
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Judy Fakes
Acting Commissioner of the Court
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- AGLC
- Assenheim v Ziaei [2016] NSWLEC 1483
- Case
- [2016] NSWLEC 1483
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the settlement agreement was binding and enforceable, and if so, whether Ziaei had breached any of its terms. The court was also required to determine whether the settlement agreement constituted a valid and binding contract and whether there were any grounds to set aside or refuse enforcement of the agreement. Furthermore, the court had to consider the principles of contract law, including whether there had been a clear and unequivocal agreement between the parties, whether consideration was present, and whether there were any vitiating factors that could invalidate the agreement.
In delivering the judgment, the court held that the settlement agreement was indeed a binding and enforceable contract. The court found that the agreement was clear, unequivocal, and supported by consideration. The court also determined that there were no vitiating factors present that would invalidate the agreement. As a result, the court dismissed Assenheim's application for enforcement of the settlement agreement, finding that Ziaei had not breached any of its terms. The court's reasoning was based on a thorough analysis of the terms of the agreement and the principles of contract law. The final orders of the court were that the application be dismissed.
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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