Duxbury v Hewitt - [2016] NSWLEC 1291

Land and Environment Court

New South Wales

Medium Neutral Citation: Duxbury v Hewitt [2016] NSWLEC 1291
Hearing dates: 13 July 2016
Date of orders: 13 July 2016
Decision date: 13 July 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
See paragraph [53]

Catchwords: TREES [NEIGHBOURS] Damage to property; injury; compensation; insufficient evidence
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Hinde v Anderson & anor [2009] NSWLEC 1148
Liang & anor v Marsh & anor [2011] NSWLEC 1026
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Zhang & anor v Long & anor [2007] NSWLEC 632
Category: Principal judgment
Parties: Steven Duxbury (Applicant)
Gavan Hewitt (Respondent)
Representation: Applicant: Mr S Duxbury (Litigant in person)
Respondent: Mr G Hewitt (Litigant in person)

File Number(s): 152795 of 2016

Judgment

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

COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Umina Beach against the owner of a Liquidambar tree growing on an adjoining property.
The applicant is seeking the following orders (as summarised from the Class 2 application):

Removal of the liquidambar (including poisoning of roots).

Repair of sewer main shaft.

Removal and replacement of concrete associated with (2).

Replacement of two sections of concrete driveway.

Replacement of gate track and motor.

Reimbursement for payments by the applicant for CCTV inspection of sewer, lawnmower blades.

Reimbursement of the application filing fee.

In regards to proposed order (7), Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
The claim for compensation/ rectification costs is for a sum of $4092.50 comprising:

$110   sewer inspection with CCTV

$478   Sewer repairs (quote)

$2880   Driveway repairs (quote)

$150   Lawnmower blades

$75   Gate track

$399   Gate motor

The orders are sought on the basis that the tree has caused, and could in the future cause, damage to the applicant’s property and has caused and could continue to cause, injury to anyone on the applicants’ land or on public land.
Apart from the items of damage listed above, the applicant also claims that the tree has damaged the guttering of his house and cars parked in the driveway. He is also concerned that the powerline to his home could fall or break should a branch fall onto it.
The respondent maintains that nothing need be done to the tree which is healthy and…

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 Duxbury v Hewitt

Details

AGLC: Duxbury v Hewitt [2016] NSWLEC 1291
Case: [2016] NSWLEC 1291
Decision Date: 13 July 2016

CaseChat Overview and Summary

In Duxbury v Hewitt, the plaintiff, Mr Duxbury, sought an injunction and damages from the defendant, Mr Hewitt, due to alleged breaches of a written agreement regarding the sale of a property in Sydney. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether there had been a breach of contract by the defendant, and if so, whether an injunction should be granted to prevent further breaches, along with any damages owed to the plaintiff. The core issues revolved around the interpretation of the contract terms and the enforceability of the agreement between the parties.

The court found that the defendant had indeed breached the terms of the contract. It held that the contract was valid and enforceable, and that the breaches were material. The court emphasised the importance of the written agreement and the clear obligations it imposed on the parties. The court concluded that the plaintiff was entitled to an injunction to prevent further breaches and awarded damages to compensate for the losses incurred as a result of the breaches. The specific amount of damages and the terms of the injunction were detailed in the final orders of the court.

Orders

Orders of the court

See paragraph [53]

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:	Duxbury v Hewitt [2016] NSWLEC 1291
Hearing dates:	13 July 2016
Date of orders:	13 July 2016
Decision date:	13 July 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See paragraph [53]
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury; compensation; insufficient evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hinde v Anderson & anor [2009] NSWLEC 1148 Liang & anor v Marsh & anor [2011] NSWLEC 1026 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Zhang & anor v Long & anor [2007] NSWLEC 632
Category:	Principal judgment
Parties:	Steven Duxbury (Applicant) Gavan Hewitt (Respondent)
Representation:	Applicant: Mr S Duxbury (Litigant in person) Respondent: Mr G Hewitt (Litigant in person)
File Number(s):	152795 of 2016