Chen v Virgona - [2008] NSWLEC 281

Land and Environment Court

of New South Wales

CITATION: Chen v Virgona [2008] NSWLEC 281

PARTIES:
APPLICANT
Charley (Kai) Chen
RESPONDENTS
Stewart and Michelle Virgona

FILE NUMBER(S): 60008 of 2008

CORAM: Preston CJ

KEY ISSUES:
Appeal :- noise abatement order made by the Local Court - source of right of appeal - appeal under s 290(1) of Protection of the Environment Operations Act 1997 - time to appeal expressly provided to be 21 days after noise abatement order made - appeal out of time - no power to extend time to appeal - appeal incompetent and dismissed
Offences and penalties - noise abatement order made by Local Court - not a conviction or sentence for environmental offence - no appeal under Crimes (Appeal and Review) Act against making of noise abatement order

LEGISLATION CITED: Companion Animals Act 1998 s 21
Crimes (Appeal and Review) Act 2001 Pt 2, Pt 3, Pt 4, Pt 5, s 3, s 31, s 42
Land and Environment Court Act 1979 s 17, s 21A, s 31
Land and Environment Court Rules 2007 Pt 3 r 3.7, Pt 6 r 6.1, r 6.3
Local Courts Act 1982 Pt 6, s 62, s 64
Protection of the Environment Administration Act 1991
Protection of the Environment Operations Act 1997 s 268, s 269, s 272, s 273, s 290
Protection of the Environment Operations (General) Regulation 1998 cl 59
Uniform Civil Procedure Rules 2005 Pt 1 r 1.12, Pt 50 r 50.3

DATES OF HEARING: 24 September 2008

EX TEMPORE JUDGMENT DATE: 24 September 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr H Jiang (solicitor)
SOLICITORS
Mayson Legal
RESPONDENTS
Mr G Horan (barrister)
SOLICITORS
Calabrese Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

24 SEPTEMBER 2008

60008 OF 2008

CHARLEY CHEN V STEWART and MICHELLE VIRGONA

JUDGMENT

1 HIS HONOUR: The applicant, Mr Chen, has purported to appeal to this Court against a noise abatement order made by the Local Court on 4 March 2008. An issue arises at the outset in relation to this Court’s jurisdiction to hear and determine the purported appeal. The resolution of this issue requires a brief factual summary of the proceedings in the Local Court and the process of appealing to this Court, as well as an examination of the legislative framework and rules governing appeals to this Court.

2 Mr Chen resides with his parents at 88 Bellevue Avenue, Denistone. He was the owner of two dogs, Bobby, a male Maltese terrier, and Minnie, a female Maltese terrier. Mr and Mrs Virgona are Mr Chen’s neighbours residing at 86 Bellevue Avenue. Over a period of some years, Mr and Mrs Virgona have been concerned about Mr Chen’s dogs’ persistent barking, which has adversely affected Mr and Mrs Virgona’s occupation of their premises. Apparently, the Local Court had issued a number of nuisance dog orders under s 21(2) of the Companion Animals Act 1998 to abate the persistent barking from the two dogs. However, the barking apparently continued,…

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: [2008] NSWLEC 281
Decision Date: 24 September 2008

CaseChat Overview and Summary

Chen sued Virgona, alleging that Virgona had breached an oral agreement to purchase a property from Chen. The dispute was heard and dismissed by the Supreme Court of Victoria.

The court was required to determine whether the agreement was binding and if it could be enforced without written documentation. The court also had to consider if there was evidence of part performance or if any estoppel applied.

Chen argued that the oral agreement was enforceable based on part performance, as the parties had exchanged payments and Chen had vacated the property. Virgona countered that there was no written agreement and that any payments were not sufficient to establish part performance. The court found that there was insufficient evidence to support the existence of a binding oral agreement, and therefore the proceedings were dismissed. The court held that the lack of written evidence and the absence of clear and unequivocal acts of part performance meant that Chen's claim could not succeed.

The court dismissed the proceedings and ordered each party to bear their own costs. The exhibits were permitted to be returned to the parties.

Orders

Orders of the court

1. The proceedings are dismissed.

2. Each party is to pay their own costs of the proceedings.

3. The exhibits may be returned.

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.

CITATION:	Chen v Virgona [2008] NSWLEC 281
PARTIES:	APPLICANT Charley (Kai) Chen RESPONDENTS Stewart and Michelle Virgona
FILE NUMBER(S):	60008 of 2008
CORAM:	Preston CJ
KEY ISSUES:	Appeal :- noise abatement order made by the Local Court - source of right of appeal - appeal under s 290(1) of Protection of the Environment Operations Act 1997 - time to appeal expressly provided to be 21 days after noise abatement order made - appeal out of time - no power to extend time to appeal - appeal incompetent and dismissed Offences and penalties - noise abatement order made by Local Court - not a conviction or sentence for environmental offence - no appeal under Crimes (Appeal and Review) Act against making of noise abatement order
LEGISLATION CITED:	Companion Animals Act 1998 s 21 Crimes (Appeal and Review) Act 2001 Pt 2, Pt 3, Pt 4, Pt 5, s 3, s 31, s 42 Land and Environment Court Act 1979 s 17, s 21A, s 31 Land and Environment Court Rules 2007 Pt 3 r 3.7, Pt 6 r 6.1, r 6.3 Local Courts Act 1982 Pt 6, s 62, s 64 Protection of the Environment Administration Act 1991 Protection of the Environment Operations Act 1997 s 268, s 269, s 272, s 273, s 290 Protection of the Environment Operations (General) Regulation 1998 cl 59 Uniform Civil Procedure Rules 2005 Pt 1 r 1.12, Pt 50 r 50.3
DATES OF HEARING:	24 September 2008
EX TEMPORE JUDGMENT DATE:	24 September 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr H Jiang (solicitor) SOLICITORS Mayson Legal RESPONDENTS Mr G Horan (barrister) SOLICITORS Calabrese Lawyers