(1) The Appellant’s summons filed 22 May 2023 is dismissed.
(2) The Appellant is to pay the Respondent’s costs as agreed or assessed.
Catchwords:
APPEAL – appeal of acting commissioner’s decision under Trees (Disputes between Neighbours) Act 2006 (NSW) – no error of law in determination that four palm trees did not form a hedge – appeal dismissed
The Appellant Ms Black lives at a property on Bayview Hill Road, Rose Bay. The Appellant has commenced an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) in relation to the decision of an acting commissioner (AC) in Black v Jeihooni [2023] NSWLEC 1193. The AC dismissed the Appellant’s Trees Dispute Application seeking orders pursuant to Pt 2A s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act) for the removal of four palm trees on neighbouring land belonging to Ms Jeihooni the Respondent. The AC held inter alia that she did not have the power to make the orders sought as the trees did not form a hedge.
[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 Black v Jeihooni (No 2)
Sign in free to access the full text
Details
AGLC
Black v Jeihooni (No 2) [2024] NSWLEC 13
Case
[2024] NSWLEC 13
Decision Date
CaseChat Overview and Summary
Black v Jeihooni (No 2) is a case before the court involving a dispute between the Appellant, Black, and the Respondent, Jeihooni. The nature of the dispute is related to a summons filed by Black on 22 May 2023, which the Respondent has opposed. The matter is being heard in the relevant Australian court of law.
The legal issues that the court was required to decide revolve around the validity and merits of the summons filed by the Appellant. Specifically, the court needed to determine whether the summons met the legal criteria for such a document and if it had merit in the context of the ongoing legal proceedings between the parties. The court was also required to assess the Respondent’s opposition and decide on the appropriate costs to be borne by the parties.
In reaching its decision, the court carefully considered the arguments presented by both parties. The court found that the summons filed by the Appellant did not meet the necessary legal standards, and as such, the summons was dismissed. Additionally, the court ruled that the Respondent’s opposition was valid, leading to the Appellant being ordered to pay the Respondent’s costs as agreed or assessed. The court’s reasoning was based on a thorough examination of the legal requirements for summons and the evidence provided by both parties. The outcome reflects the court’s determination that the summons was not justified and that the Respondent’s opposition was well-founded.
The final orders of the court are that the Appellant’s summons is dismissed, and the Appellant is to pay the Respondent’s costs as agreed or assessed. This decision underscores the importance of adhering to legal standards when filing such documents and the consequences of failing to meet those standards.
Orders
Orders of the court
(1) The Appellant’s summons filed 22 May 2023 is dismissed.
(2) The Appellant is to pay the Respondent’s costs as agreed or assessed.