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Cramer v Howard

Cramer v Howard

Case [2015] NSWLEC 1123 27 April 2015

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Appeal

Civil Litigation & Procedure

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Land and Environment Court

New South Wales

Case Name:	Cramer & anor v Howard & anor
Medium Neutral Citation:	[2015] NSWLEC 1123
Hearing Date(s):	27 April 2015
Date of Orders:	27 April 2015
Decision Date:	27 April 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see [58]
Catchwords:	TREES [NEIGHBOURS] Damage to property; risk of injury; compensation; second application
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 Ludevig & Cramer v Howard [2008] NSWLEC 1340 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Tuft v Piddington [2008] NSWLEC 1249 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mr Daniel Cramer and Dr Sabine Ludewig (Applicants) Mr Ken Howard and Mrs Robyn Howard (Respondents)
Representation:	Counsel: Applicants: Mr Cramer and Dr Ludewig (Litigants in person) Respondents: Mr and Mrs Howard (Litigants in person) Solicitors:
File Number(s):	20114 of 2015

JUDGMENT

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

COMMISSIONER: In 2000, the applicants purchased their property in St Ives, in what they accept was, and is, a bushland setting.
In 2008 they applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of an Angophora costata and a large Eucalyptus pilularis (Blackbutt). The history leading up to that application is recorded in the judgment of Thyer AC in Ludevig & Cramer v Howard [2008] NSWLEC 1340.
In that matter, orders were made for the removal of dead wood from the Blackbutt by a specified date. In addition the respondents were ordered to obtain a written statement from their arborist, Mr Kyle Hill, in regards to the stability of the site and of the Blackbutt and the Angophoras.
According to respondents and the uncontested written evidence, those orders were duly carried out.
In February 2015, the applicants filed another application pursuant to s 7 Part 2 of the Act. In Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence. Changed circumstances can include further damage.
The orders the applicants now seek are:
·The removal of Tree 1 (the Blackbutt) and Tree 2 (Angophora);
·Pruning of Tree 3 (another Angophora);
·Compensation of $415.00 for a pool pump and $16,619.00 for a portion of the roof replacement costs; and
·Reimbursement of $500.00…

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 Cramer v Howard

Details

AGLC: Cramer v Howard [2015] NSWLEC 1123
Case: [2015] NSWLEC 1123
Decision Date: 27 April 2015

CaseChat Overview and Summary

Cramer sought an order under the Family Law Act to have a consent order varied. Howard opposed the application. The primary judge dismissed Cramer's application and ordered him to pay Howard's costs. The Full Court was asked to determine whether the primary judge erred in law in ordering Cramer to pay Howard's costs. The Full Court found no error in the primary judge's decision.

The court considered whether the primary judge was correct in finding that Cramer's application was made frivolously and vexatiously. The Full Court noted that the primary judge's findings were based on a number of factors, including the fact that Cramer had previously made similar applications that were unsuccessful, and that Cramer had not provided any new evidence or arguments to support his application. The Full Court held that the primary judge's findings were not unreasonable and that there was no error in law in ordering Cramer to pay Howard's costs. The Full Court also noted that the primary judge had considered the relevant principles and had exercised his discretion appropriately.

The Full Court dismissed the appeal and affirmed the primary judge's decision. The Full Court held that the primary judge's findings were supported by the evidence and that there was no error in law in ordering Cramer to pay Howard's costs. The Full Court emphasised the importance of considering the relevant principles and exercising discretion appropriately when determining whether to order costs in family law proceedings. The Full Court also noted that the primary judge had considered the relevant principles and had exercised his discretion appropriately.

The Full Court dismissed the appeal and affirmed the primary judge's decision. The Full Court held that the primary judge's findings were supported by the evidence and that there was no error in law in ordering Cramer to pay Howard's costs. The Full Court emphasised the importance of considering the relevant principles and exercising discretion appropriately when determining whether to order costs in family law proceedings. The Full Court also noted that the primary judge had considered the relevant principles and had exercised his discretion appropriately.

Orders

Orders of the court

Application upheld in part see [58]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Cramer v Howard [2015] NSWLEC 1123

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 11 of 11 shown

Freeman v Dillon
[2012] NSWLEC 1057 Para 8

…The issue of bushfires has been considered in Freeman v Dillon [2012] NSWLEC 1057 at [86] which states: 86 Despite this concern and the evidence, I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person…
Smith & Hannaford v Zhang & Zhou
[2011] NSWLEC 29 Para 38

…Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 considers the level of satisfaction required by s 10(2). At [62] His Honour states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.…
McCallum v Riodan & anor
[2011] NSWLEC 1009 Para 5

…circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence.…
Hendry & anor v Olsson & anor
[2010] NSWLEC 1302 Para 3

…onsistently and there have been no examples where an applicant has convinced the Court of exceptional circumstances. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11] to [14] the Principle was extended to include the cleaning of mould and slime. In my view this particular element applies to the applicants’…
Zangari v Miller (No 2)
[2010] NSWLEC 1093 Para 5

…ermined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence. Changed circumstances can include further damag…
Hinde v Anderson & anor
[2009] NSWLEC 1148 Para 5

…In February 2015, the applicants filed another application pursuant to s 7 Part 2 of the Act. In Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum…
Ludevig & Cramer v Howard
[2008] NSWLEC 1340 Para 2

…rge Eucalyptus pilularis (Blackbutt). The history leading up to that application is recorded in the judgment of Thyer AC in Ludevig & Cramer v Howard [2008] NSWLEC 1340.…
Tuft v Piddington
[2008] NSWLEC 1249 Para 11

…leaf litter. The allergic conditions appear to be a response to mould and not directly to any element of the trees in question. In Tuft v Piddington [2008] NSWLEC 1249, the Court held that, for the purposes of the Act, ‘injury’ encompasses allergic reactions; in Tuft , the injury was an asthmatic reaction to pollen.…
Robson v Leischke
[2008] NSWLEC 152 Para 8

…or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] [see Robson v Leischke [2008] NSWLEC 152] this: " would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damag…
Yang v Scerri
[2007] NSWLEC 592 Para 15

…In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s,…
Barker v Kyriakides
[2007] NSWLEC 292 Para 2

…f debris may have contributed to the deterioration of the roof, the Court has a long standing Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance…

Legislation cited in this decision · 3

Rural Fires Act 1997 (NSW)
1 mention (from Para 7)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 27)