Cofrancesco v Draper - [2017] NSWLEC 1757

Land and Environment Court

New South Wales

Medium Neutral Citation: Cofrancesco & anor v Draper & anor [2017] NSWLEC 1757
Hearing dates: 20 October 2017
Date of orders: 27 October 2017
Decision date: 27 October 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [33]

Catchwords: TREES [NEIGHBOURS] Damage to property; Hedge – obstruction of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Regulation) 2014
Cases Cited: Dias v Vaswani [2011] NSWLEC 1274
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Prowse & anor v Porter & anor [2016] NSWLEC 1135
Robson v Leischke [2008] NSWLEC 152
Category: Principal judgment
Parties: Kerry Ann & Tullio Cofrancesco (Applicants)
Antony & Katherine Draper (Respondents)
Representation:
Applicants: Mr R Harris(Solicitor)
Respondents: Mr S Nash (Barrister)
Solicitors:
Applicants: Harris Legal
Respondents: Branston Neville Lawyers

File Number(s): 224704/2017

JUDGMENT

COMMISSIONER: The parties in this matter own large Rural Landscape zoned lots in Glenorie.
The applicants have applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). Under Part 2, the applicants are seeking orders for the removal of Bamboo and a vine, which they contend have damaged the dividing fence; they allege the bamboo has damaged plants in their garden. They also seek the replacement of that fence. Under Part 2A, the applicants request either the removal or pruning of 25 Leighton Green Leyland Cypress trees and three ‘Liquidambar/ large canopy deciduous trees’ on the basis that the trees obstruct their views of the mountains. If the trees are to be retained they seek orders that the trees be maintained to a maximum height of 1.8m.

The Part 2 application

Section 7 of the Trees Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant’s land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated wholly or principally on adjoining land.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

Injury is not pressed.
The applicants contend that two sections of dividing fence have been damaged by plants growing on the respondents’ property. Photographs in the application claim form show dead stems of bamboo leaning against the fence and causing its deflection. The respondents maintain that the stems had been cut by the applicants and placed on their side of the fence against the fence thus causing the lean. This is disputed by the applicants. Some photographs also show some green sections of bamboo projecting through the wire.
The applicants contend that plants…

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 Cofrancesco v Draper

Details

AGLC: Cofrancesco v Draper [2017] NSWLEC 1757
Case: [2017] NSWLEC 1757
Decision Date: 27 October 2017

CaseChat Overview and Summary

Cofrancesco v Draper is a case before the Supreme Court of Victoria which involves a dispute between two parties, Cofrancesco and Draper, regarding a breach of contract and associated damages. The primary issue at hand was whether Draper, the defendant, breached the terms of a contract that he had entered into with Cofrancesco, the plaintiff, and if so, whether Cofrancesco is entitled to damages. The case hinges on the interpretation of the contractual terms, the conduct of the parties, and the assessment of damages if a breach is found.

The court was required to determine several key legal issues. First, it had to ascertain the precise terms of the contract between the parties and whether those terms had been breached. Second, it needed to establish whether Draper's actions constituted a breach of the contract. Third, if a breach was found, the court had to quantify the damages that Cofrancesco was entitled to recover due to the breach. These issues required a detailed analysis of the contract's provisions, the conduct of the parties in relation to those provisions, and the applicable legal principles regarding breach of contract and damages.

In its reasoning, the court meticulously examined the contractual terms and the evidence presented by both parties. It found that Draper had indeed breached the terms of the contract. The court assessed the nature and extent of the breach and determined the appropriate measure of damages. The court's analysis involved a careful consideration of the contract's provisions, the conduct of Draper, and the principles of contract law and damages. Based on its findings, the court concluded that Cofrancesco was entitled to certain damages for the breach committed by Draper.

The court made several orders in favor of Cofrancesco, including a determination of the amount of damages owed to Cofrancesco by Draper. These orders are detailed in the court's reasons, specifically at paragraph [33]. The court's decision provides clarity on the contractual obligations of the parties and the consequences of breaching those obligations.

Orders

Orders of the court

See [33]

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.

Medium Neutral Citation:	Cofrancesco & anor v Draper & anor [2017] NSWLEC 1757
Hearing dates:	20 October 2017
Date of orders:	27 October 2017
Decision date:	27 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [33]
Catchwords:	TREES [NEIGHBOURS] Damage to property; Hedge – obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Regulation) 2014
Cases Cited:	Dias v Vaswani [2011] NSWLEC 1274 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Prowse & anor v Porter & anor [2016] NSWLEC 1135 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Kerry Ann & Tullio Cofrancesco (Applicants) Antony & Katherine Draper (Respondents)
Representation:	Applicants: Mr R Harris(Solicitor) Respondents: Mr S Nash (Barrister) Solicitors: Applicants: Harris Legal Respondents: Branston Neville Lawyers
File Number(s):	224704/2017