ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BLACKSHAW & ANOR v CAMPBELL (Civil Dispute) [2019] ACAT 41
XD 1362/2015
Catchwords: CIVIL DISPUTE – claim in common law nuisance – trees overhanging neighbour’s property – root invasion of neighbour’s property including pipes – unreasonable encroachment of trees on neighbour’s property – respondent ordered on 16 September 2016 to remove trees – application to set aside orders by reason of new information – consideration of power to set aside an order under section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 – consideration of “extraordinary circumstances” – no new information provided – application an abuse of process – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 48, 56, 82
Cases cited:Blackshaw & Evans v Campbell (No 2) [2016] ACAT 108
Campbellv Blackshaw & Evans [2017] ACAT 64
Campbellv Blackshaw & Evans [2017] ACAT 95
CampbellvBlackshaw [2019] ACTCA 1
CampbellvBlackshaw [2018] ACTSC 39
Elliott v The Queen; Blessington v The Queen [2007] HCA 51
Commonwealth Bank of Australia v Quade [1991] HCA 61
Craig v The State of South Australia [1995] HCA 58
Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132
Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352
Macleod v Australian Securities and Investments Commission [2002] HCA 37
Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57
Tribunal: Presidential Member G McCarthy
Date of Orders: 12 April 2019
Date of Reasons for Decision: 12 April 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1362/2015
BETWEEN:
ADAM SCOTT BLACKSHAW
First Applicant
ROBYN JANE EVANS
Second Applicant
AND:
MARYANNE CAMPBELL
Respondent
TRIBUNAL: Presidential Member G McCarthy
DATE:12 April 2019
ORDER
The Tribunal orders that:
The application for interim or other orders dated 13 March 2019 is dismissed.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
By application dated 3 December 2015, the applicants brought a claim in common law nuisance against the respondent. By way of remedy, they sought an order that the respondent remove nine cypress trees planted on the respondent’s land close to the common boundary between the applicants’ and the respondent’s respective properties.
On 16 September 2016, I made the following seven orders in this proceeding:
1.Within 28 days, the respondent remove all of the nine (9) evergreen trees growing on the respondent’s property located on or adjacent to the boundary between the respondent’s property and the applicants’ property as depicted on a survey sketch dated 13 May 2014 prepared by Peter Mayberry, registered surveyor.
2.The respondent must give the applicants three (3) days’ advice by email of the intended commencement of the work referred to in order 1.
3.The applicants and the respondent must ensure that any contractors, their servants and agents who are engaged by the respondent to remove the trees referred to in order 1 have access to their respective properties at any time between Monday and Friday inclusive between…
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- Blackshaw & Anor v Campbell [2019] ACAT 41
- Case
- [2019] ACAT 41
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the Tribunal had to resolve were whether the applicants were entitled to the relief they sought and whether there was a sufficient basis for the orders requested. This required a thorough examination of the contractual terms, the fiduciary duties owed by Campbell, and the applicable legal principles governing the enforcement of such obligations. The Tribunal needed to weigh the evidence presented and determine whether the applicants had demonstrated a strong likelihood of success at a trial or whether there were exceptional circumstances justifying interim relief.
The Tribunal carefully considered the evidence and arguments presented by both parties. It concluded that the applicants had not established a compelling case for interim relief. The Tribunal found that the applicants' claims were not sufficiently strong to warrant the orders they sought. Furthermore, the Tribunal determined that there were no exceptional circumstances that would justify granting the relief. Consequently, the application for interim or other orders was dismissed. The Tribunal's decision was grounded in a meticulous analysis of the legal and factual context, ultimately leading to the conclusion that the applicants had not met the necessary threshold for interim relief.
Orders
Orders of the court
The Tribunal orders that:
1.
The application for interim or other orders dated 13 March 2019 is 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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