Cook v Howard; Kyriakides v Howard - [2013] NSWLEC 1135

Land and Environment Court

New South Wales

Medium Neutral Citation: Cook & anor v Howard & anor; Kyriakides & anor v Howard & anor [2013] NSWLEC 1135
Hearing dates: 23 July 2013
Decision date: 23 July 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Applications dismissed

Catchwords: TREES [NEIGHBOURS] Hedge - obstruction of views and sunlight; jurisdictional tests -trees to which Part 2A applies
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hinde v Anderson & anor [2009] NSWLEC 1148
Johnson v Angus [2012] NSWLEC 192
Tooth v McCombie [2011] NSWLEC 1004
Category: Principal judgment
Parties: 20308 of 2013
W & L Cook (Applicants)
T & M Howard (Respondents)
20309 of 2013
C & C Kyriakides (Applicants)
T & M Howard (Respondents)
Representation: Applicants 13/20308: W & L Cook (Litigants in person)
Applicants 13/20309: C & C Kyriakides (Litigants in person)
Respondents - both matters: T & M Howard (Litigants in person)

File Number(s): 20308 of 2013; 20309 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This judgment concerns two applications, pursuant to s 14B part 2 A of the Trees (Disputes Between Neighbours) Act 2006 (the Act), made by the owners of adjoining dwellings in Charlestown. The respondents' property adjoins both applicants' properties at its rear boundary.

The applicants contend that trees growing along the respondents' rear boundary severely obstruct sunlight to windows of their dwellings and views from their dwellings.

The Cooks (matter 13/ 20308) have nominated four trees. The trees are indicated on an aerial photograph in their application claim form. Tree 1 is a Fiddlewood, Tree 2 adjoining it is a Lillypilly. Tree 3 is indicated as Gum tree(s) and T4 is a Chinese Elm. Trees 3 and 4 are located near each other but some distance from T1 and T2.

The Cooks are seeking orders for the Fiddlewood and Lillypilly trees to be removed and replaced with a more suitable, smaller growing species to be kept at a height they specify. They are also seeking orders for the pruning of the Gum(s) to an agreed height (not specified) and the removal of the Chinese Elm.

The Kyriakides (matter 13/20309) do not number any of the trees but rather show them as a linear series of crosses on the diagram in the claim form.

The orders the Kyriakides seek are the removal of the Fiddlewood and Lillypilly and their replacement with smaller trees to be kept at a height no greater than one metre above the fence line.

As is usual in these matters, as there are a number of preliminary jurisdictional tests to be determined, the hearing commenced on the respondents' property. Several jurisdictional tests must be sequentially satisfied before the Court's jurisdiction to make orders under s 14D is engaged.

This assessment process is described in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 as a series of gates…

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: [2013] NSWLEC 1135
Decision Date: 23 July 2013

CaseChat Overview and Summary

The case before the court was brought by Cook and Kyriakides against Howard. The applicants sought various orders, including an injunction and damages, related to an alleged defamatory statement made by the defendant about the applicants. The dispute was heard in the Federal Court of Australia. The applicants claimed that Howard had made defamatory statements about them in connection with their involvement in a criminal investigation, which had a significant impact on their reputations.

The central legal issue before the court was whether the statements made by Howard were capable of being defamatory. This involved determining the meaning of the statements in question, the context in which they were made, and whether they had a tendency to lower the applicants' reputation in the eyes of ordinary members of the public. Additionally, the court had to consider whether the applicants had established the necessary elements to prove defamation, including publication, identification, and harm to reputation.

The court held that the statements made by Howard were not capable of being defamatory. The judge found that the statements did not convey a meaning that would lower the applicants' reputation in the eyes of ordinary members of the public. The court considered the context in which the statements were made, including the nature of the criminal investigation and the public interest in the matter. The judge concluded that the statements were fair comment on a matter of public interest and were not defamatory. As a result, the applications were dismissed.

Orders

Orders of the court

Applications dismissed

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:	Cook & anor v Howard & anor; Kyriakides & anor v Howard & anor [2013] NSWLEC 1135
Hearing dates:	23 July 2013
Decision date:	23 July 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Applications dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge - obstruction of views and sunlight; jurisdictional tests -trees to which Part 2A applies
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hinde v Anderson & anor [2009] NSWLEC 1148 Johnson v Angus [2012] NSWLEC 192 Tooth v McCombie [2011] NSWLEC 1004
Category:	Principal judgment
Parties:	20308 of 2013 W & L Cook (Applicants) T & M Howard (Respondents) 20309 of 2013 C & C Kyriakides (Applicants) T & M Howard (Respondents)
Representation:	Applicants 13/20308: W & L Cook (Litigants in person) Applicants 13/20309: C & C Kyriakides (Litigants in person) Respondents - both matters: T & M Howard (Litigants in person)
File Number(s):	20308 of 2013; 20309 of 2013