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New South Wales |
Case Name: | Dive v Lin and Liu |
Medium Neutral Citation: | [2017] NSWLEC 153 |
Hearing Date(s): | 16 November 2017 |
Date of Orders: | 16 November 2017 |
Decision Date: | 16 November 2017 |
Jurisdiction: | Class 2 |
Before: | Preston CJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – appeal against Commissioner’s decision – application for removal of tree – jurisdictional requirement that tree be situated on “adjoining land” – tree situated on land two properties from applicant’s land – Commissioner determined tree not on adjoining land – whether Commissioner erred in interpretation and application of “adjoining land” – no error on question of law |
Legislation Cited: | Civil Procedure Act 2005 s 98(1) |
Cases Cited: | ACN 115 840 509 Pty Ltd v Kiama Municipal Council (2006) 145 LGERA 147; [2006] NSWLEC 151 |
Category: | Principal judgment |
Parties: | Thomas Dive (Applicant) |
Representation: | Counsel: |
File Number(s): | 2017/230671 |
Publication Restriction: | Nil |
Decision under appeal: | |
Court or Tribunal: | Land and Environment Court of NSW |
Jurisdiction: | Class 2 |
Citation: | |
Date of Decision: | 3 July 2017 |
Before: | Galwey AC |
File Number(s): | 2017/102878 |
JUDGMENT
A Commissioner dismisses an application to remove a tree
Mr Dive owns an inner city residential property at 17 Caroline Street, Redfern. He is concerned about a large Sydney Blue Gum tree growing two properties away at 21 Caroline Street. Mr Lin and Ms Liu, the respondents, own 21 Caroline Street. The Sydney Blue Gum tree originally had a height of around 32 metres and a canopy spread of 10 to 15 metres depending on the direction. Its branches extended about 12 metres to the east over both 19 and 17 Caroline Street. The tree had previously dropped branches onto Mr Dive’s property and had caused damage to his dwelling.
Mr Dive applied under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) for the tree to be removed. Acting Commissioner Galwey heard the application on 3 July…
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- AGLC
- Dive v Lin and Liu [2017] NSWLEC 153
- Case
- [2017] NSWLEC 153
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the interpretation of the company's constitution and the application of the Corporations Act. Specifically, the court needed to ascertain whether the removal of Dive as a director and shareholder complied with the legal requirements and if any breaches of fiduciary duty or oppressive conduct were present. Additionally, the court had to examine whether the respondents had acted within their powers as directors and shareholders.
The court found that the company's constitution provided clear procedures for the removal of directors, which had been followed. Furthermore, there was no evidence of oppressive conduct or breaches of fiduciary duty by the respondents. The court held that the respondents had acted within their powers and that the appellant's removal was lawful. Consequently, the appeal was dismissed, affirming the decisions of the lower courts.
Orders
Orders of the court
The appeal is dismissed.
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
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