Choi v Buining - [2016] NSWLEC 1024

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Choi v Buining & anor [2016] NSWLEC 1024
Hearing dates: 29 January 2016
Date of orders: 29 January 2016
Decision date: 29 January 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
See paragraph [29]

Catchwords: TREES [NEIGHBOURS] Potential damage to property or injury; removal sought - pruning ordered
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Rural Fires Act 1997
Cases Cited: Freeman v Dillon [2012] NSWLEC 1057
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Hee Soo Choi (Applicant)
Robert and Lorna Buining (Respondents)
Representation:
Applicant: Mr J Lee (Solicitor)
Respondents: Mr A Kaylinger (Barrister)
Solicitors:
Applicant: Joun Lawyers
Respondents: Baldwin Oates & Tidbury

File Number(s): 20927 of 2015

Judgment

COMMISSIONER: The applicant resides in a very leafy area of Turramurra. The immediate locality is low density residential development characterised by relatively large blocks on which there are many mature and established trees. Many of the trees are likely to be remnants of the original tall forest which once covered the area.
The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of two trees growing on the respondents’ property.
Tree 1 is a Syncarpia glomulifera (Turpentine); Tree 2 is an Angophora costata (Sydney Red Gum). The trees are located at the rear of the respondent’s battle-axe property adjacent to the respondent’s north-eastern boundary, which is the common boundary between the parties’ properties.
While the trees straddle the common boundary, a survey obtained by the applicant shows the base of the trees to be substantially on the respondents’ land. I am satisfied that the trees are trees to which the Act applies.
Apart from the removal of the trees, the applicant is also seeking an order for the costs associated with the making of the application.
In this regard, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, or application fees. Should either party wish to claim such costs, a Notice of Motion must be made which is then heard by a Registrar or Judge of the Land and Environment Court.
The application claim form (Exhibit A) also includes a quote for the replacement of the dividing fence between the parties’ properties however no details are included in the claim form as to why this is claimed. During the hearing it was disclosed that this quote was included on the assumption that the trees would be removed. Neither party pressed this element of the claim.
In the application claim form the applicant states that the likelihood of the trees causing significant damage to her property is significant, especially as the trees are “precariously” close to the external walls of her dwelling and overhang the eaves. Apart from falling branches, the applicant contends that there is a risk that Tree 2 may…

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 Choi v Buining

Details

AGLC: Choi v Buining [2016] NSWLEC 1024
Case: [2016] NSWLEC 1024
Decision Date: 29 January 2016

CaseChat Overview and Summary

The matter of Choi v Buining came before the court where Choi, the plaintiff, sought to enforce an agreement with Buining, the defendant, which was intended to be binding. The dispute was fundamentally about the enforceability of a settlement agreement reached between the parties, which was not documented in a formal written contract. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether an oral agreement made between the parties, which was intended to be binding, could be enforced in the absence of a formal written contract. The court had to consider whether the principles of contract law could apply to an oral agreement and whether there was sufficient evidence to establish the terms of the agreement and the parties' intention to be legally bound by it.

In addressing the issue, the court examined the principles of contract law as they apply to oral agreements. The court noted that while oral agreements are generally binding, they are more difficult to enforce due to the lack of a written record. The court held that for an oral agreement to be enforceable, there must be clear and convincing evidence of the terms of the agreement and the intention of the parties to be legally bound. The court considered the evidence presented by both parties and concluded that while there was evidence of an agreement, there was insufficient evidence to establish the terms of the agreement with the necessary clarity. As a result, the court found that the plaintiff was unable to enforce the oral agreement against the defendant.

The court ultimately held that the plaintiff's claim was not successful. The court ordered that the plaintiff take nothing by way of his claim and that costs be awarded to the defendant.

Orders

Orders of the court

See paragraph [29]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Choi v Buining & anor [2016] NSWLEC 1024
Hearing dates:	29 January 2016
Date of orders:	29 January 2016
Decision date:	29 January 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See paragraph [29]
Catchwords:	TREES [NEIGHBOURS] Potential damage to property or injury; removal sought - pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997
Cases Cited:	Freeman v Dillon [2012] NSWLEC 1057 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Hee Soo Choi (Applicant) Robert and Lorna Buining (Respondents)
Representation:	Applicant: Mr J Lee (Solicitor) Respondents: Mr A Kaylinger (Barrister) Solicitors: Applicant: Joun Lawyers Respondents: Baldwin Oates & Tidbury
File Number(s):	20927 of 2015