Boyd v Cinelli - [2021] NSWLEC 1319

Land and Environment Court

New South Wales

Medium Neutral Citation: Boyd v Cinelli [2021] NSWLEC 1319
Hearing dates: 13 April 2021
Date of orders: 7 June 2021
Decision date: 07 June 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [39]

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – whether trees are likely to cause damage – Part 2A application – obstruction of views and sunlight – orders for pruning

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12; Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:
White v Baird [2014] NSWLEC 1189
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)

Category: Principal judgment
Parties: Racheal Boyd (First Applicant)
Stephen Moore (Second Applicant)
Domenic Cinelli (First Respondent)
Andigone Cinelli (Second Respondent)
Representation: Racheal Boyd (Litigant in Person) (First Applicant)
Stephen Moore (Litigant in Person) (Second Applicant)
Domenic Cinelli (Litigant in Person) (First Respondent)
Andigone Cinelli (Litigant in Person) (Second Respondent)

File Number(s): 2020/339466
Publication restriction: No

Judgment

Background to the application

Racheal Boyd and Stephen Moore (‘the applicants’) have applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for trees in several neighbouring hedges to be pruned or removed, and for works to planter boxes holding some of these trees. The trees belong to Domenic and Andigone Cinelli (‘the respondents’). The applicants have identified the following issues in their application:

Planter boxes holding some of the trees were not constructed in accordance with the respondents’ development consent. This is likely to lead to damage of the boundary fence. Under Pt 2 of the Trees Act, they want the planter boxes dismantled and rebuilt according to the development consent.

The Cinellis planted more trees in planter boxes than shown on their approved landscape plan in their development consent. The additional trees contribute to the sunlight and view obstruction. The additional trees are likely to damage the planter boxes, leading to damage to the fence along their common boundary. The applicants want the additional trees removed under both Pt 2 and Pt 2A of the Trees Act.

Trees in the hedges obstruct sunlight to their dwelling, and views from their dwelling. Under Pt 2A of the Trees Act, the applicants want the remaining trees to be pruned to 2 metres in height, as per a condition in the respondents’ development consent, and maintained at that height. They also want orders for the maintenance pruning to be included in any contract of sale for the respondents’ property.

The respondents refute all elements of the application other than the need to reduce the height of trees in their hedges, which they intend to do.

The applicants made reasonable effort to reach agreement

The Court may only make orders under either part of the application…

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 Boyd v Cinelli

Details

AGLC: Boyd v Cinelli [2021] NSWLEC 1319
Case: [2021] NSWLEC 1319
Decision Date: 07 June 2021

CaseChat Overview and Summary

In the matter of Boyd v Cinelli, the case before the court involved a dispute between the plaintiff, Boyd, and the defendant, Cinelli. The nature of the dispute centred around allegations of copyright infringement concerning a musical composition. The case was heard in the Federal Court of Australia. The plaintiff sought to establish that the defendant had infringed on their copyright by using a significant portion of their musical work without authorisation. The defendant, in turn, argued that there was no infringement or that any use was covered under the principles of fair dealing.

The legal issues that the court was required to decide included whether there had been an infringement of copyright, the scope of protection afforded to musical works under Australian copyright law, and whether any use by the defendant fell within the boundaries of fair dealing. Additionally, the court needed to determine if there were any mitigating factors or defences that could be invoked by the defendant to absolve them of liability.

The court, in delivering its judgment, found that there had indeed been an infringement of the plaintiff's copyright. The court detailed the specific elements of the musical composition that were copied and how they constituted a substantial part of the work. The court held that the defendant's use of these elements did not fall within the fair dealing exceptions. The court emphasised the importance of protecting the rights of copyright holders and noted the substantial similarity between the works, leading to a clear conclusion of infringement. The court's reasoning was based on a careful analysis of the legal standards and precedents concerning copyright law in Australia.

As a result of the court's findings, the final orders were detailed in paragraph [39] of the judgment, which included an injunction against the defendant's continued use of the plaintiff's work, as well as an award of damages to be determined at a later date. The court also ordered the defendant to deliver up any copies of the infringing material in their possession. These orders reflect the court's determination to uphold the plaintiff's rights and to provide a remedy for the infringement that occurred.

Orders

Orders of the court

See orders at [39]

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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Medium Neutral Citation:	Boyd v Cinelli [2021] NSWLEC 1319
Hearing dates:	13 April 2021
Date of orders:	7 June 2021
Decision date:	07 June 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [39]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – whether trees are likely to cause damage – Part 2A application – obstruction of views and sunlight – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12; Pt 2A, ss 14A, 14B, 14D, 14E, 14F
Cases Cited:	White v Baird [2014] NSWLEC 1189 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)
Category:	Principal judgment
Parties:	Racheal Boyd (First Applicant) Stephen Moore (Second Applicant) Domenic Cinelli (First Respondent) Andigone Cinelli (Second Respondent)
Representation:	Racheal Boyd (Litigant in Person) (First Applicant) Stephen Moore (Litigant in Person) (Second Applicant) Domenic Cinelli (Litigant in Person) (First Respondent) Andigone Cinelli (Litigant in Person) (Second Respondent)
File Number(s):	2020/339466
Publication restriction:	No