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Breen & Anor v Caronna & Anor

Breen & Anor v Caronna & Anor

Case [2008] NSWLEC 293 17 October 2008

Jurisdiction

Statutory Interpretation

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Land and Environment Court

of New South Wales

CITATION: Breen & Anor v Caronna & Anor [2008] NSWLEC 293

PARTIES:
APPLICANTS
Murray Breen and Helen Breen
RESPONDENTS
Vince Caronna and Maria Caronna

FILE NUMBER(S): 20684 of 2008

CORAM: Sheahan J

KEY ISSUES: Practice and Procedure :- removal of proceedings to a Judge

LEGISLATION CITED: Civil Procedure Act 2005
Family Provision Act 1982
Land and Environment Court Act 1979
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005

CASES CITED: Bartlett v Coomber & Anor [2008] NSWCA 100
Harris v Caladine (1991) 172 CLR 84

DATES OF HEARING: 17 October 2008

EX TEMPORE JUDGMENT DATE: 17 October 2008

LEGAL REPRESENTATIVES:
APPLICANTS
Mr J A Trebeck,
Barrister
RESPONDENTS
Mr D Legg,
Solicitor of Burridge & Legg

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan
17 October 2008

20684 of 2008 Breen & Anor v Caronna & Anor
EXTEMPORE JUDGMENT

1 His Honour: These Class 2 proceedings under the Trees (Disputes Between Neighbours) Act 2006 (“Tree Disputes Act”) are currently before Commissioner Moore and Acting Commissioner Thyer and are due to resume on site at 4.30pm Monday 20 October.

2 The parties reached an agreement on their dispute just before the first appointed hearing, and prepared Consent Orders, but the Commissioners have so far declined to make them. The parties adhere to their desire for those Orders to be made by the Court to give effect to the settlement reached between them, and have brought before me as the Duty Judge a Notice of Motion seeking (1) an order pursuant to s.36(5) of the Land and Environment Court Act 1979 (“Court Act”) removing the proceedings for hearing and determination by a Judge of the Court, and (2) an order in the form of two paragraphs of the consent orders.

3 The Notice of Motion was filed on behalf of the Applicants and argued today by Mr Trebeck of counsel, but the solicitor for the Respondents, Mr Legg, has signified in writing the Respondents’ instructions not to oppose the orders sought. I have heard the Notice of Motion ex parte.

4 The Applicant Murray Breen has sworn and filed an affidavit in support. The Consent Orders (including a notation covering stump grinding) are in the Court file and are clear on their face. Mr Trebeck made detailed written and oral submissions and took me to the extensive evidence, including expert evidence, on the Court file.

5 The three trees involved would appear to be significant, and the damage they appear to have caused is also significant and could cause injury to persons, especially those like Mrs Breen who labour under some degree of disability when negotiating the damaged concrete. Significant sums of money are involved in the various recommended options.

6 The Chief Judge has assigned Commissioner Moore and Acting Commissioner Thyer to deal with this case, including those serious considerations. The Commissioners are part-heard. They certainly can make consent orders to dispose…

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 Breen & Anor v Caronna & Anor

Details

AGLC: Breen & Anor v Caronna & Anor [2008] NSWLEC 293
Case: [2008] NSWLEC 293
Decision Date: 17 October 2008

CaseChat Overview and Summary

Breen & Anor v Caronna & Anor involved a dispute under the Trees (Disputes Between Neighbours) Act 2006, where Murray and Helen Breen sought to remove the proceedings from Commissioners Moore and Thyer to a Judge of the Land and Environment Court of New South Wales for the purpose of approving consent orders they had reached with the respondents, Vince and Maria Caronna. The Breens argued that the Commissioners should not refuse to approve the consent orders without further investigation, while the Caronnas did not oppose the motion. The legal issues centred on the discretion of the Court to remove proceedings and the obligations of the Commissioners in approving consent orders in tree dispute cases.

Justice Sheahan found that the removal of proceedings to a Judge was not warranted in this case. The Court noted that the Commissioners had the same powers and responsibilities as the Judge, and were required to be satisfied of the statutory criteria before making consent orders. The Court emphasised that the statutory regime for tree disputes was designed to ensure a simple, inexpensive, and accessible process, and that the Court must comply with the terms of the Act. The Court also highlighted that the overriding purpose of the Civil Procedure Act was to facilitate the just, quick, and cheap resolution of the real issues in the proceedings, but in tree disputes, the real issues included the requirements of sections 10 and 12 of the relevant Act.

The Court dismissed the Notice of Motion, returning the matter to the Commissioners, and confirming the resumption of the hearing on site. There was no order as to costs.

Orders