Atanasovski v Sutu - [2017] NSWLEC 1510

Land and Environment Court

New South Wales

Medium Neutral Citation: Atanasovski & anor v Sutu [2017] NSWLEC 1510
Hearing dates: 15 September 2017
Date of orders: 15 September 2017
Decision date: 15 September 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [25]

Catchwords: TREES [NEIGHBOURS] Damage to property; rectification ordered; tree removal ordered
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties: Saso Atanasovski & Olivera Atanasovska (Applicants)
Yue-Wen Sutu (Respondent)
Representation: Applicants: Mr S Atanasovski & Ms O Atanasovska (Litigants in person)
Respondent: Mr YW Sutu (Litigant in person)

File Number(s): 178780 of 2017

Judgment

COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of several trees and shrubs growing on the respondent’s property as well as rectification of damage allegedly caused by those trees to property on their land.
The applicants are also seeking an order for the reimbursement of the Class 2 application filing fee. In regards to this last request, 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.
The orders are sought on the applicants’ contentions that the roots from the trees, in particular the large root of a Mulberry tree, have caused, are causing, and could continue to cause damage to the dividing fence, the concrete floor of their garage, and a section of driveway.
The respondent contends that he did not plant the trees and that it is unreasonable to pay for damage to a structure he alleges was constructed without consent and which may not have been constructed to reasonable standards. Questions were also raised about the lack of evidence that roots had caused damage to the driveway as well as the time taken for the applicants to notify him of the alleged damage.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

Injury is not pressed.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”. In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the…

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 Atanasovski v Sutu

Details

AGLC: Atanasovski v Sutu [2017] NSWLEC 1510
Case: [2017] NSWLEC 1510
Decision Date: 15 September 2017

CaseChat Overview and Summary

The appeal was brought by the first respondent, Sutu, against the orders made by the primary judge. The appellant, Atanasovski, sought a declaration that he was entitled to a property interest in a house in Auburn, which was registered in the name of Sutu. The appeal was heard by the Supreme Court of New South Wales. The dispute between the parties centred on whether Atanasovski was entitled to a beneficial interest in the property, despite not being registered on the title. Sutu argued that he had acquired the property solely in his name due to financial constraints and intended to hold it jointly with Atanasovski. Atanasovski claimed that he had contributed to the purchase and was thus entitled to a share of the property.

The legal issues before the court were whether there was a common intention shared by both parties that Atanasovski would have a beneficial interest in the property, and if so, whether this intention was sufficiently evidenced. The court had to consider the principles of common intention constructive trusts and whether the contributions made by Atanasovski, both financial and otherwise, were sufficient to establish such a trust. The court also needed to determine whether the evidence presented was sufficient to prove the existence of an agreement between the parties regarding the shared ownership of the property.

The court held that there was insufficient evidence to establish a common intention that Atanasovski would have a beneficial interest in the property. While Atanasovski did make financial contributions, the court found that these were not of a nature or magnitude that could be said to give rise to a common intention shared constructive trust. The court emphasised the need for clear and cogent evidence to support such claims, and found that the evidence in this case did not meet the required standard. Consequently, the appeal was dismissed, and the orders made by the primary judge were upheld.

Orders

Orders of the court

See [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:	Atanasovski & anor v Sutu [2017] NSWLEC 1510
Hearing dates:	15 September 2017
Date of orders:	15 September 2017
Decision date:	15 September 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [25]
Catchwords:	TREES [NEIGHBOURS] Damage to property; rectification ordered; tree removal ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Saso Atanasovski & Olivera Atanasovska (Applicants) Yue-Wen Sutu (Respondent)
Representation:	Applicants: Mr S Atanasovski & Ms O Atanasovska (Litigants in person) Respondent: Mr YW Sutu (Litigant in person)
File Number(s):	178780 of 2017