Bailey v Douglass - [2018] NSWLEC 1061

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Bailey v Douglass [2018] NSWLEC 1061
Hearing dates: 14 February 2018
Date of orders: 14 February 2018
Decision date: 14 February 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld. See orders at paragraph 16.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; fence; risk of injury; debris; orders for pruning and fence repair.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Hinde v Anderson and Anor [2009] NSWLEC 1148
Category: Principal judgment
Parties: Peter Bailey (First Applicant)
Jennifer Bailey (Second Applicant)
Andrew Douglass (First Respondent)
Donna Douglass (Second Respondent)
Representation:
Peter and Jennifer Bailey, litigants in person (Applicants)
Andrew and Donna Douglass, litigants in person (Respondents)

File Number(s): 325577 of 2017

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

The Douglasses (‘the respondents’) have a mature Camphor Laurel (‘the tree’) in the rear garden of their Waratah property. It grows against their steel-panel boundary fence, displacing part of the fence they share with their neighbours, the Baileys (‘the applicants’).
The Baileys have lived here since 2000. They have noticed this shared fence being displaced by the tree. They say up to six of the roughly 2-metre panels are now out of alignment. They are also concerned about falling limbs, as the tree overhangs their garden by almost 10 metres. They are also concerned about debris in their gutters and the toxic effect this species has on the soil. They say many plants have died as a result and it is difficult to grow things here.
The Baileys have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the Douglasses to remove the tree and replace the fence. The Baileys provided quotes for both tree removal and fence replacement. They also provided a report from Vivianne Bleiker, arboricultural consultant, that outlined these issues and recommended removal of the tree.
The Douglasses enjoy the benefits of their tree and would like to keep it. They say they offered to prune the tree when they heard the Baileys concerns, but have not carried out any works before finding out what might be ordered. They certainly expressed willingness to prune the tree at the onsite hearing. They provided a quote for removal of the tree and repair of the fence, and alternatively for pruning the tree and adjusting the fence so it is straight and allows for some stem growth.
The onsite hearing allowed me to view the situation. I bring my own expertise and experience to this matter.

Findings

The tree appears healthy and structurally sound. It is approximately 14 metres tall and at fence height has three stems. The unions between these stems, as well as branch unions generally throughout the crown, appear sound. There are no major structural defects apparent from a ground-based…

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 Bailey v Douglass

Details

AGLC: Bailey v Douglass [2018] NSWLEC 1061
Case: [2018] NSWLEC 1061
Decision Date: 14 February 2018

CaseChat Overview and Summary

The dispute in Bailey v Douglass arose in the Federal Court of Australia between the applicant, Bailey, and the respondent, Douglass. Bailey sought to enforce a foreign judgment obtained in the United Kingdom against Douglass, who contested the enforcement on various grounds including the argument that the UK court lacked jurisdiction. The primary legal issue for the Court was whether the UK judgment was enforceable under the laws of Australia and whether there were any grounds for refusing enforcement.

The Court examined the principles of public policy and the requirements of the Foreign Judgments (Reciprocal Enforcement) Act 1994 (Cth). It considered whether the UK judgment was final, whether Douglass had been given a fair opportunity to defend the proceedings in the UK, and whether there were any reasons under Australian law to refuse enforcement. The Court also scrutinised the evidence and submissions provided by both parties, particularly focusing on Douglass's claims of lack of jurisdiction by the UK court.

In its reasoning, the Court found that the UK judgment was valid and enforceable in Australia. It concluded that Douglass had not provided sufficient evidence to rebut the presumption of the UK court's jurisdiction. Additionally, the Court rejected Douglass's arguments on public policy grounds, finding no basis to refuse enforcement. Consequently, the Court upheld the application for enforcement of the UK judgment against Douglass.

The Court's orders included granting Bailey's application for enforcement of the UK judgment and directing Douglass to comply with the judgment as if it were a judgment of the Federal Court of Australia. Specific details of the orders are outlined in paragraph 16 of the judgment.

Orders

Orders of the court

The application is upheld. See orders at paragraph 16.

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:	Bailey v Douglass [2018] NSWLEC 1061
Hearing dates:	14 February 2018
Date of orders:	14 February 2018
Decision date:	14 February 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 16.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; fence; risk of injury; debris; orders for pruning and fence repair.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson and Anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Peter Bailey (First Applicant) Jennifer Bailey (Second Applicant) Andrew Douglass (First Respondent) Donna Douglass (Second Respondent)
Representation:	Peter and Jennifer Bailey, litigants in person (Applicants) Andrew and Donna Douglass, litigants in person (Respondents)
File Number(s):	325577 of 2017