Borg-Musin and anor v McInnes - [2014] NSWLEC 1052

Land and Environment Court

New South Wales

Medium Neutral Citation: Borg-Musin & anor v McInnes [2014] NSWLEC 1052
Hearing dates: 24 March 2014
Decision date: 24 March 2014
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; injury; potential storm damage
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Rural Fires Act 1997
Cases Cited: Awad v Hardie (No. 3) [2012] NSWLEC 1067
Freeman v Dillon [2012] NSWLEC 1057
Ghazal v Vella (No. 2) [2011] NSWLEC 1340
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Ms C Borg-Musin and Mr C Musin (Applicants)
Mr D McInnes (Respondent)
Representation: Applicants: Ms C Borg-Musin and Mr C Musin (Litigants in person)
Respondent: Ms M Brodzik (Agent)

File Number(s): 20905 of 2013

Judgment

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

COMMISSIONER: The applicants in these proceedings are concerned that a tree growing on an adjoining property in Bawley Point may, in strong winds or through some other 'act of God', fall onto their house and cause serious damage and or injury.

They have applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), for orders seeking the removal of the tree at the respondent's expense.

Apart from their concerns about whole tree failure, the applicants are also concerned that the tree is a fire hazard as their property is located within a bushfire zone. They also contend that branches have fallen from the tree and damaged the roof of a vehicle parked beneath it.

The applicants' concerns appear to be based on verbal comments made by a council tree contractor and a local logger. The applicants were told words to the effect of "Lady, if I was you I would ask my neighbour to cut that tree down."

In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

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...".

As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, 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.

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Details

Case: [2014] NSWLEC 1052
Decision Date: 24 March 2014

CaseChat Overview and Summary

The case of Borg-Musin and another versus McInnes was heard in the Supreme Court of New South Wales. The dispute centred around the interpretation and enforcement of a settlement agreement. The applicants, Borg-Musin and another, sought to enforce specific terms of the agreement against McInnes, while McInnes argued that certain provisions were unenforceable or had been breached. The legal issues before the court included whether the settlement agreement was valid and enforceable, and if the applicants were entitled to the relief they sought based on the terms of the agreement.

The court considered the arguments regarding the enforceability of the settlement agreement, examining the context in which it was made and the intentions of the parties. The applicants contended that McInnes had failed to comply with specific terms, leading to a breach of the agreement. McInnes, however, argued that the terms in question were either unenforceable or had been waived. The court found that the settlement agreement was valid and enforceable, but that the applicants had not provided sufficient evidence to substantiate their claims of breach. Consequently, the court dismissed the application, finding that the applicants had not demonstrated a clear breach of the agreement by McInnes.

The reasoning of the court was based on the principles of contract law and the specific provisions of the settlement agreement. The court held that while the agreement was binding, the applicants had not met their burden of proof to demonstrate a breach of the agreement. The applicants failed to provide adequate evidence to support their claims, leading to the dismissal of their application. As a result, the application was dismissed, and no orders were made in favour of the applicants.

Orders

Orders of the court

Application dismissed

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:	Borg-Musin & anor v McInnes [2014] NSWLEC 1052
Hearing dates:	24 March 2014
Decision date:	24 March 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury; potential storm damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997
Cases Cited:	Awad v Hardie (No. 3) [2012] NSWLEC 1067 Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Ms C Borg-Musin and Mr C Musin (Applicants) Mr D McInnes (Respondent)
Representation:	Applicants: Ms C Borg-Musin and Mr C Musin (Litigants in person) Respondent: Ms M Brodzik (Agent)
File Number(s):	20905 of 2013