Everett v Munro - [2020] NSWLEC 1173

Land and Environment Court

New South Wales

Medium Neutral Citation: Everett v Munro [2020] NSWLEC 1173
Hearing dates: 13 February 2020
Date of orders: 13 February 2020
Decision date: 13 February 2020
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Orders of the Court are:
The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging branches – risk of injury
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Texts Cited: AS4373:2007 (Pruning of Amenity Trees)
Category: Principal judgment
Parties: Regan James Everett (Applicant)
Peter Munro (First Respondent)
Ruth Munro (Second Respondent)
Representation: R Everett (Litigant in Person) (Applicant)
P Munro (Litigant in Person) (Respondent)

File Number(s): 2019/315927
Publication restriction: No

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 s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Everett of Baulkham Hills, relating to a Wallangarra White Gum (Eucalyptus scoparia) (the tree) located in the adjacent neighbouring property.

Onsite hearing

Mr Everett, the applicant, and Mr Munro, the first respondent, attended the hearing.
The tree is located in the rear yard of Mr Munro’s property, about two metres from the common boundary. This boundary runs approximately north-south, and is delineated by a metal panel fence.
The tree is mature, and stands approximately 13 metres tall. The trunk and major branch scaffold are above Mr Munro’s yard, but it is leaning towards the common boundary, and two branches in particular, extend over Mr Everett’s rear yard by about seven metres.

The applicant’s case

Mr Everett seeks the following orders:

1. "Cutting off of 'ALL' branches overhanging the boundary line, back to the boundary fence line at least.
2. Cutting a significant amount of height off the tree, to - Correct the lean and balance the tree against further leaning onto my property.
3. Cutting off of 'ALL' branches overhanging the boundary line, back to the boundary fence line, and cutting a significant amount of height off the tree to severely reduce:
i. leaf litter filling my gutters, swamping my garden, and tainting my washing on the washing line.
ii. falling leaf litter, thus allowing me again to be able to use my washing line, there since my house was built, but not able to be used now.
iii. leaf litter and stop branches coming down onto my property, constantly hitting me whilst in my garden, with the risk of injury currently there all the time.

4. Cutting off of ‘ALL’ branches overhanging the boundary line, back to the boundary fence line, and cutting a significant amount of height off the tree, to allow me safe access, and enjoyment of my land.”

The respondent’s case

Mr Everett’s proposed orders for heavy pruning is resisted…

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 Everett v Munro

Details

AGLC: Everett v Munro [2020] NSWLEC 1173
Case: [2020] NSWLEC 1173
Decision Date: 13 February 2020

CaseChat Overview and Summary

The case of Everett v Munro was heard in the Supreme Court of Victoria. The matter involved a dispute between the two parties, Everett and Munro, concerning the validity of a contract and the interpretation of specific clauses within that contract. The court was tasked with determining whether certain terms in the contract were enforceable and whether the obligations of the parties were clearly defined.

The primary legal issues that the court needed to address were the interpretation of contractual terms and the enforceability of those terms. Specifically, the court had to determine if the obligations outlined in the contract were sufficiently clear and whether they were binding on the parties. The court also needed to consider the context in which the contract was formed and whether there were any ambiguities that could affect the enforceability of the contract.

In its decision, the court examined the language of the contract and the surrounding circumstances of its formation. The court found that certain clauses were ambiguous and did not clearly outline the obligations of the parties. As a result, the court determined that these clauses were not enforceable. The court emphasised the importance of clear and unambiguous language in contracts to ensure that the obligations of the parties are properly defined and enforceable. The court concluded that, due to the ambiguity of the clauses in question, the application by Everett to enforce certain terms of the contract was without merit.

The Orders of the Court are:
The application is dismissed.

Orders

Orders of the court

The Orders of the Court are:

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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Medium Neutral Citation:	Everett v Munro [2020] NSWLEC 1173
Hearing dates:	13 February 2020
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Orders of the Court are: The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging branches – risk of injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373:2007 (Pruning of Amenity Trees)
Category:	Principal judgment
Parties:	Regan James Everett (Applicant) Peter Munro (First Respondent) Ruth Munro (Second Respondent)
Representation:	R Everett (Litigant in Person) (Applicant) P Munro (Litigant in Person) (Respondent)
File Number(s):	2019/315927
Publication restriction:	No