Ebsworth v Migachov - [2014] NSWLEC 1157

Land and Environment Court

New South Wales

Medium Neutral Citation: Ebsworth v Migachov [2014] NSWLEC 1157
Hearing dates: 12 August 2014
Decision date: 12 August 2014
Jurisdiction: Class 2
Before: Galwey AC Durland AC
Decision:
The application is dismissed

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; debris; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Category: Principal judgment
Parties:
APPLICANT
Ninett Ebsworth
RESPONDENTS
Yvette MigachovAlex Migachov
File Number(s): 20331 of 2014

Judgment

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

The application

This is a decision of both Acting Commissioners.

Ms Ebsworth has applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for neighbouring trees to be pruned. The trees are Lilly Pillies planted adjacent to the common boundary and overhanging Ms Ebsworth's pool and surrounding paving. She says berries and other debris from the trees have dropped onto her property, that they have damaged her pool cleaning equipment and that they cause a risk of injury to family members using the paved area. She wants the trees pruned down to a manageable height, approximately 2 metres, and overhanging limbs pruned back to the boundary. She seeks orders for ongoing pruning to maintain the trees at this size.

Mr and Mrs Migachov own the neighbouring property on which the trees grow. They have not filed any response to Ms Ebsworth's application and did not attend today's onsite hearing.

We viewed the trees from Ms Ebsworth's property, where she showed us the issues she wishes us to consider.

There are three established Lilly Pillies (Syzygium sp.) planted in a row close to the boundary. They are approximately 10 metres tall. At either end, continuing the row, several more young Lilly Pillies have been planted. They are approximately 2 metres tall. The three established trees overhang the Ebsworth property by about 2 metres.

Ms Ebsworth bought a pool cover some time ago to prevent berries sinking to the bottom of the pool, where they had caused damage to the pump of the cleaning equipment. She showed us the damaged pump and has a receipt for its replacement. She does not seek compensation.

We observed the pool cover and surrounding paving to be covered in a layer of berries from the Lilly Pillies. Judging by their weathered state they had been lying there for some time. Ms Ebsworth says most of the berries fall throughout summer, preventing her family using the pool for periods.

Ms Ebsworth also said that debris and shading from the trees caused staining of the paving and mould to grow thereon.

Ms Ebsworth also stated that a pipe near the pool had been damaged, although possibly not by tree roots. She is concerned that roots may cause damage to pipes in future.

While we may find Ms Ebsworth's…

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 Ebsworth v Migachov

Details

AGLC: Ebsworth v Migachov [2014] NSWLEC 1157
Case: [2014] NSWLEC 1157
Decision Date: 12 August 2014

CaseChat Overview and Summary

The parties in this case are Ebsworth, the applicant, and Migachov, the respondent. The dispute before the court involved a legal challenge to the validity of a subpoena issued by the respondent. The matter was heard in the Federal Court of Australia. The applicant sought to have the subpoena quashed on the grounds that it was oppressive and vexatious.

The primary legal issue before the court was whether the subpoena was oppressive or vexatious within the meaning of the relevant statute. The applicant argued that the subpoena was oppressive because it required the production of a vast amount of documents, many of which were irrelevant, and was therefore unduly burdensome. The applicant also argued that the subpoena was vexatious because it was intended to harass or embarrass the applicant rather than for a legitimate purpose.

The court considered the criteria for determining whether a subpoena is oppressive or vexatious and concluded that the applicant had not met the burden of proving that the subpoena met either of these criteria. The court found that the scope of the subpoena was broad but considered the production of a large number of documents to be a common feature of subpoenas in complex litigation. The court also found that there was a legitimate purpose behind the subpoena, as it was related to ongoing legal proceedings. As a result, the court dismissed the application to quash the subpoena.

Orders

Orders of the court

The application is 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:	Ebsworth v Migachov [2014] NSWLEC 1157
Hearing dates:	12 August 2014
Decision date:	12 August 2014
Jurisdiction:	Class 2
Before:	Galwey AC Durland AC
Decision:	The application is dismissed
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; debris; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Category:	Principal judgment
Parties:	APPLICANT Ninett Ebsworth RESPONDENTS Yvette MigachovAlex Migachov
File Number(s):	20331 of 2014