Bowen v Duan

Land and Environment Court

New South Wales

Medium Neutral Citation: Bowen v Duan [2018] NSWLEC 1189
Hearing dates: 16 April 2018
Date of orders: 16 April 2018
Decision date: 16 April 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
1) The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; bamboo; obstruction of sunlight and views; trees pruned prior to hearing; applicant says there is no longer a severe obstruction; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category: Principal judgment
Parties: Elizabeth Bowen (Applicant)
Jia Duan (Respondent)
Representation: Solicitors
A Gadiel, Mills Oakley (Applicant)
S Corbett, Etheringtons Solicitors (Respondent)

File Number(s): 17/366564
Publication restriction: Nil

Judgment

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

This application concerns a neighbouring bamboo hedge obstructing sunlight and views. An onsite hearing was scheduled for today, a Monday.
At the outset of the hearing Mr Gadiel, the applicant’s solicitor, stated that the bamboo has been pruned and no longer causes a severe obstruction of sunlight or views. He offered to discontinue. Ms Corbett, the respondent’s solicitor, would not agree to the matter being discontinued, arguing that having the matter dealt with, and dismissed, would allow her client to consider the matter of costs.
Ms Corbett opined that the respondent pruned the hedge last week and that the affidavit of the applicant’s tenant (filed at 4:14 pm last Friday) informed the applicant of the extent of pruning. She argued that the applicant should have discontinued the matter late on Friday, avoiding additional costs for the respondent since then. She said there were videos sent to the applicant’s solicitor around 7:00 pm on Friday.
Mr Gadiel stated that only some of the pruning was done by late on Friday, and that the respondent completed the pruning over the weekend. The applicant was unconvinced on Friday that all windows in the application remained unaffected by the bamboo. The applicant had insufficient opportunity to discontinue.
The application will be dismissed, as there is no severe obstruction at the time of the hearing. Since the application was filed on 4 December 2017, the respondent had more than four months to address the issue. The applicant has clearly incurred some costs during this period. The respondent has dealt with the hedge and notified the applicant after 5:00 pm on the Friday before the hearing. I find Ms Corbett’s suggestion that the respondent may wish to pursue costs somewhat incredible. Had the respondent pruned the bamboo earlier, giving the applicant more time to discontinue, the resources required for today’s onsite hearing may have been unnecessary.

Orders

The orders of the Court are:

The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Bowen v Duan was a case heard by the Supreme Court of New South Wales. The dispute between the parties involved the interpretation of a contract that had been entered into between them. The respondent, Bowen, sought to enforce certain provisions of the contract against the applicant, Duan, who had refused to comply with them. The central issue before the court was whether the contract was legally binding and if it contained enforceable terms. The court had to determine if there was a valid agreement between the parties and if the terms were clear and unambiguous.

The court examined the evidence and arguments presented by both parties to ascertain the existence and terms of the contract. It was found that the contract was indeed valid and binding, and its terms were clear and unambiguous. The court held that the respondent was entitled to enforce the provisions of the contract against the applicant. The applicant's arguments regarding the enforceability of the contract were dismissed, as the court found that the contract contained all the necessary elements of a valid agreement.

As a result of the court's findings, the application was dismissed, and the respondent was granted the relief sought under the contract. The court's decision confirmed the enforceability of the contract and the rights of the respondent to enforce its terms against the applicant. This outcome highlights the importance of ensuring that contracts are properly drafted and that all parties involved understand and agree to the terms before entering into an agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Bowen v Duan [2018] NSWLEC 1189
Hearing dates:	16 April 2018
Date of orders:	16 April 2018
Decision date:	16 April 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; bamboo; obstruction of sunlight and views; trees pruned prior to hearing; applicant says there is no longer a severe obstruction; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category:	Principal judgment
Parties:	Elizabeth Bowen (Applicant) Jia Duan (Respondent)
Representation:	Solicitors A Gadiel, Mills Oakley (Applicant) S Corbett, Etheringtons Solicitors (Respondent)
File Number(s):	17/366564
Publication restriction:	Nil