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Ekermawi v Bennett (No 2)

Ekermawi v Bennett (No 2)

Case [2010] NSWLEC 40 19 March 2010

Admissibility of Evidence

Natural Justice & Procedural Fairness

Property Law

Administrative Law

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Land and Environment Court

of New South Wales

CITATION: Ekermawi v Bennett (No 2) [2010] NSWLEC 40

PARTIES:
APPELLANT
Sam Ekermawi
RESPONDENTS
Keith Bennett and Leanne Bennett

FILE NUMBER(S): 20142 of 2010; 20637 of 2009

CORAM: Preston CJ

KEY ISSUES: APPEAL :- s 56A(1) appeal against commissioner's decision - application to have a tree on a neighbour's land removed - whether commissioner erred in law in interpreting and applying s 10(2) Trees (Disputes Between Neighbours) Act 1996 - whether commissioner made a finding of fact where there was no evidence to support the finding - whether commissioner failed to give adequate opportunity to be heard - whether commissioner failed to address relevant evidence - no error of law established - appeal dismissed with costs

LEGISLATION CITED: Land and Environment Court Act 1979 ss 34B, 56A(1)
Trees (Disputes Between Neighbours) Act 2006 ss 7, 10(2)

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gas Light Company v The Valuer General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Barker v Kyriakides [2007] NSWLEC 292
Beale v GIO of NSW (1997) 48 NSWLR 430
Black v Johnson (No 2) [2007] NSWLEC 513
Bruce v Cole (1998) 45 NSWLR 163
Ekermawi v Bennett [2009] NSWLEC 1398
Grant v Kiama Municipal Council [2006] NSWLEC 70
Horn v Latter [2007] NSWLEC 744
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8
Mifsud v Campbell (1991) 21 NSWLR 725
O’Brien v Butler [2008] NSWLEC 1345
Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125
Randwick Municipal Councill v Crawley (1986) 60 LGRA 277
Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360
Seaforth Services Pty Ltd v Byron Shire Council (No 2) (1991) 72 LGRA 44
Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Sky Design and Concepts Pty Ltd v Pittwater Council (No 5) [2009] NSWLEC 174
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298
Tesoriero v Leichhardt Municipal Council (1983) 51 LGRA 46
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
Yang v Scerri [2007] NSWLEC 592
Zapata v Strata Plan 42882 [2008] NSWLEC 1218

DATES OF HEARING: 9 March 2010

DATE OF JUDGMENT:
19 March 2010

LEGAL REPRESENTATIVES: APPELLANT
Sam Ekermawi (in person)
RESPONDENTS
Mr P Mitchell (solicitor)
SOLICITORS
Johnsons Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

19 MARCH 2010

20142 OF 2010
20637 OF 2009

EKERMAWI V BENNETT (NO 2)
JUDGMENT

1 HIS HONOUR: Mr Ekermawi appeals under s 56A(1) of the Land and Environment Court Act 1979 (“the Court Act”) against the order and decision of a commissioner of…

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 Ekermawi v Bennett (No 2)

Details

AGLC: Ekermawi v Bennett (No 2) [2010] NSWLEC 40
Case: [2010] NSWLEC 40
Decision Date: 19 March 2010

CaseChat Overview and Summary

This appeal by Sam Ekermawi against a decision of a commissioner of the Land and Environment Court of New South Wales concerns an application under the Trees (Disputes Between Neighbours) Act 2006 for orders to remove a tree on his neighbour's land and for compensation for damage to his property and car allegedly caused by the tree. The commissioner dismissed Mr Ekermawi's application. The appeal is limited to questions of law. The appeal was heard by Preston CJ. Mr Ekermawi contended that the commissioner erred in law by misinterpreting and misapplying s 10(2) of the Trees Act, making a finding of fact where there was no evidence to support the finding, not giving him an adequate opportunity to respond to relevant evidence and ignoring relevant evidence. Preston CJ dismissed the appeal. The commissioner did not misinterpret or misapply s 10(2) of the Trees Act. The commissioner's finding of fact was open to her on the evidence and there was no error of law involved in finding or inferring facts where there was some evidence capable of supporting the finding or inference. The commissioner was not under a duty to accept Mr Ekermawi's invitation to inspect for herself any alleged internal damage to the house. The commissioner was also not required to refer to the decision of the commissioner in Black v Johnson (No 2) [2007] NSWLEC 513 in the reasons for judgment. The commissioner did not ignore the photographs of the storm damage, the affidavit of a former neighbour and the letter from the State Emergency Service (SES). The commissioner expressly referred to the photographs and the work done by the SES in the judgment and drew inferences from them. The commissioner's judgment is consistent with the commissioner having considered the affidavit of the former neighbour. The commissioner's judgment also reveals consideration of the matters in the SES letter. The Court orders that the appeal is dismissed and that the applicant is to pay the costs of the respondents, as agreed or assessed. Each party in the original proceedings before the commissioner is to pay their own costs of the proceedings.

Orders