Bentley v Hinchen - [2014] NSWLEC 1209

Land and Environment Court

New South Wales

Medium Neutral Citation: Bentley v Hinchen & anor [2014] NSWLEC 1209
Hearing dates: 14 October 2014
Decision date: 14 October 2014
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld in part. See orders at paragraph 10

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; change in circumstances since earlier application; application upheld in part; orders for pruning and compensation
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Bentley v Hinchen [2008] NSWLEC 1348
Category: Principal judgment
Parties:
Carol Bentley (Applicant)
David Hinchen and Lynette Hinchen (Respondents)
Representation:
Carol Bentley, litigant in person (Applicant)
David Hinchen and Lynette Hinchen, litigants in person (Respondents)

File Number(s): 20462 of 2014

Judgment

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

Background

A tall Flooded Gum (Eucalyptus grandis) grows in the Lindfield property of Mr and Mrs Hinchen ("the respondents"), close to their common boundary with Ms Bentley's neighbouring property. Ms Bentley ("the applicant") has lived here for many years, during which time she has become concerned about branches falling from the tree onto her property. Ms Bentley applied to the Court in 2008 seeking orders for the tree's removal and compensation for repairing damage caused by the tree. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006, the Court ordered the Hinchens to pay Ms Bentley some compensation for repairing damage, and ordered that the Hinchens have deadwood regularly removed from the tree at intervals of no more than 12 months (see Bentley v Hinchen [2008] NSWLEC 1348).

Ms Bentley says more branches have fallen from the tree since then and has again applied to the Court for orders for the tree's removal and for compensation of further damage caused by the tree. She says paving in her garden between the tree and her dwelling has been lifted again by tree roots, creating an uneven surface. She says the timber paling fence on the boundary has been pushed out of alignment by growth of the tree's stem. She has retained many of the fallen branches. Most are dead but she says one live limb has fallen. A dead limb fell onto her roof, breaking tiles and puncturing her ceiling. Another dead limb fell after the application was made, on the Friday before the onsite hearing. Ms Bentley says she has tried to resolve the issue by ringing the Hinchens "a couple of times".

Ms Bentley contends she has never been notified of the pruning works and is unsure if the Hinchens have pruned the tree as often as they are required to by the Court's earlier orders.

The Hinchens say they have not been contacted by Ms Bentley or notified about branches falling, other than on one instance in 2012 when they received a phone call, followed by a letter. They undertook pruning after that and responded in writing to inform Ms Bentley of the works…

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 Bentley v Hinchen

Details

AGLC: Bentley v Hinchen [2014] NSWLEC 1209
Case: [2014] NSWLEC 1209
Decision Date: 14 October 2014

CaseChat Overview and Summary

Bentley v Hinchen was a legal dispute between two parties, Bentley and Hinchen, that was heard in the Federal Circuit Court of Australia. Bentley sought an order for costs against Hinchen, which was contested by the latter. The case hinged on the assessment of the conduct of the parties during the proceedings, and whether it warranted the imposition of costs against Hinchen. The court had to determine whether there were any grounds to support Bentley’s application for costs and if so, whether the amount claimed was appropriate.

The court identified the primary issue to be whether Bentley was entitled to recover costs from Hinchen. This involved a review of the conduct of both parties throughout the litigation process, with a focus on whether Hinchen's actions were unreasonable, vexatious, or oppressive. The court needed to assess the reasonableness of Bentley's application and whether there was any justification for Hinchen to incur costs as a result of his conduct. The court also had to consider the principles of costs in litigation and whether they applied in this case.

In examining the matter, the court found that while Hinchen had acted unreasonably in some respects, there were mitigating factors that should be taken into account. The court determined that the application for costs was not entirely without merit, but the amount sought was excessive. The court exercised its discretion to award costs to Bentley but reduced the amount significantly from what was initially sought. The court’s decision was based on a balanced consideration of the conduct of both parties and the principles governing costs in litigation.

The court upheld Bentley’s application for costs against Hinchen, but not in the full amount requested. The court ordered that Hinchen pay a reduced amount to Bentley, reflecting the partial success of the application. This decision highlights the importance of proportionality and fairness in the awarding of costs in legal proceedings.

Orders

Orders of the court

The application is upheld in part. See orders at paragraph 10

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:	Bentley v Hinchen & anor [2014] NSWLEC 1209
Hearing dates:	14 October 2014
Decision date:	14 October 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld in part. See orders at paragraph 10
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; change in circumstances since earlier application; application upheld in part; orders for pruning and compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Bentley v Hinchen [2008] NSWLEC 1348
Category:	Principal judgment
Parties:	Carol Bentley (Applicant) David Hinchen and Lynette Hinchen (Respondents)
Representation:	Carol Bentley, litigant in person (Applicant) David Hinchen and Lynette Hinchen, litigants in person (Respondents)
File Number(s):	20462 of 2014