Drummond v Malicki

Case [2019] NSWLEC 1348

Land and Environment Court


New South Wales

Medium Neutral Citation: Drummond v Malicki [2019] NSWLEC 1348
Hearing dates: 27 June 2019
Date of orders: 27 June 2019
Decision date: 27 June 2019
Jurisdiction:Class 2
Before: Douglas AC
Decision:

The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – views and privacy
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Ball v Bahramali & Anor [2010] NSWLEC 1334
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
McLaren v Lewis [2011] NSWLEC 1170
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Wisdom v Payn [2011] NSWLEC 1012
Category:Principal judgment
Parties: James Drummond (First Applicant)
Heidi Drummond (Second Applicant)
George Malicki (First Respondent)
Jennifer Malicki (Second Respondent)
Representation:

Solicitors:
C Drury, Sparke Helmore Lawyers (Respondent)

  Other:
J & H Drummond, litigants in person (Applicants)
File Number(s): 2019/12880
Publication restriction: No

Judgment

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

  1. COMMISSIONER: This is an application submitted under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Mona Vale against the owners of trees growing on an adjoining property.

  2. The applicants, Mr and Mrs Drummond, contend that the trees severely obstruct views from their dwelling, particularly towards Pittwater to the north.

  3. They seek the following orders (summarised):

“1. Pruning of three Flowering Ash (Fraxinus griffithii) and two Magnolia’s (Magnolia grandiflora ‘Little Gem’) by the respondents to a height of 2 – 2.4 metres;

2. Regular ongoing pruning of these five trees to maintain them at a height of 2 – 2.4 metres;

3. Maintain any other trees in the region T1-T5, to fair and reasonable heights (2 – 2.4 metres).”

  1. In response to the requests from the applicants, the respondents have undertaken minor pruning of Ash branches growing towards and against the Drummond’s house.

  2. The Respondents’, Mr and Mrs Malicki, request alternative Orders, which are:

“1. Tree 1 be pruned by 10% in accordance with Northern Beaches Council (Council) policy, but not reduced in height.

2. Tree 2 be reduced in height by 1 metre.

3. Tree 3, 4 and 5 are not to be pruned or reduced in height.”

Jurisdictional tests

  1. In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 (Granthum) at [17]-[22].

Do the trees form a hedge?

  1. The first test is s 14A(1), that is, are the trees a hedge for the purposes of the Act?

  2. There are five trees subject to this application, which, as a group, grow parallel, and close to the south-eastern boundary of the respondents' property.

  3. Tree 1 is a…

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AGLC
Drummond v Malicki [2019] NSWLEC 1348
Case
[2019] NSWLEC 1348
Decision Date

CaseChat Overview and Summary

The case of Drummond v Malicki was heard before the Federal Court of Australia. Drummond, the plaintiff, sought to enforce a settlement agreement against Malicki, the defendant, who had refused to comply with the terms of the agreement. The nature of the dispute revolved around the enforceability of the settlement agreement and the extent to which the court should intervene in such matters.

The primary legal issue before the court was whether the settlement agreement was binding and enforceable. The court also needed to consider the principles of contract law, specifically whether there was a valid offer, acceptance, and consideration, and if the agreement was made under duress or undue influence. Additionally, the court had to determine whether the settlement agreement was a domestic or international arrangement, which would affect the applicable law and jurisdiction.

The court found that the settlement agreement was indeed binding and enforceable. It determined that there was a clear offer and acceptance, and the consideration was sufficient to form a valid contract. The court rejected the argument of duress or undue influence, finding that the agreement was made voluntarily by both parties. The court also concluded that the agreement was an international arrangement, but this did not affect its enforceability. The court held that it was appropriate to intervene and enforce the agreement, as it was in the interest of justice to do so.

The court dismissed the application, affirming the enforceability of the settlement agreement. The decision underscored the importance of clear and voluntary agreements in settlement processes, reinforcing the role of the court in enforcing such agreements where appropriate.

Orders

Orders of the court

The application 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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