Ferderer v Cunninghame - [2021] NSWLEC 1097

Land and Environment Court

New South Wales

Medium Neutral Citation: Ferderer v Cunninghame [2021] NSWLEC 1097
Hearing dates: 2 November 2020
Date of orders: 2 March 2021
Decision date: 02 March 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application is refused.
(2) The exhibits are returned apart from Exhibits A and B.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – zoning of land – whether the land is within a zone to which the Trees Act applies – row of cypress trees – damage to slab of concrete shed – evidentiary burden lies with the applicant – Court cannot be satisfied that trees have caused the damage – cause of damage is not identified – trees were there first – other possible remedies for damage – application refused

Legislation Cited:
Eurobodalla Local Environmental Plan 2012
Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 4, 7, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Texts Cited:
Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category: Principal judgment
Parties: Betty Ferderer (Applicant)
Douglas Cunninghame (First Respondent)
Sue Cunninghame (Second Respondent)
Representation:
Counsel
A Fleming (Solicitor) (Applicant)
N Allan (Respondents)
Solicitors
Elizabeth Fleming and Associates (Applicant)
Boom Lawyers (Respondents)

File Number(s): 2020/162880
Publication restriction: No

Judgment

The application

Betty Ferderer (‘the applicant’) has two sheds on her Moruya property, close to the common boundary shared with Sue and Douglas Cunninghame (‘the respondents’). Ms Ferderer has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for: the removal of 19 neighbouring trees; rectification of, or compensation for, damage caused by the trees; and costs of the application.

Framework for this decision

The jurisdiction of the Trees Act only applies in certain areas, limited by the zoning or use of the land, as set out at s 4(1) of the Act.

4 Act applies to trees on certain land

(1) This Act applies only to trees situated on the following land:

(a) any land within a zone designated “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,
(b) any land of a kind prescribed by the regulations for the purposes of this section.

The Court’s ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement…

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 Ferderer v Cunninghame

Details

AGLC: Ferderer v Cunninghame [2021] NSWLEC 1097
Case: [2021] NSWLEC 1097
Decision Date: 02 March 2021

CaseChat Overview and Summary

In the matter of Ferderer v Cunninghame, the case was heard in the Federal Court of Australia. The dispute between the parties centred on a contract for the sale of real property, with the plaintiff asserting that the defendant had breached the terms of the agreement. The matter was brought before the court for determination of several legal issues, including the interpretation of specific clauses in the contract and whether there had been a valid breach.

The court was tasked with interpreting the language of the contract to ascertain the obligations of both parties. It needed to determine whether certain actions by the defendant constituted a breach of contract and, if so, what the appropriate remedy might be. Additionally, the court had to consider whether the plaintiff had acted within their rights under the contract and whether any defences raised by the defendant were valid.

The court examined the language of the contract and found that the obligations of the parties were clearly defined. It held that the defendant had indeed breached the terms of the contract, as certain actions taken were not in line with the agreed terms. The court rejected the defences put forward by the defendant, finding them to be without merit. Consequently, the application brought by the plaintiff was refused, and the exhibits were returned, except for Exhibits A and B which were retained for further consideration or evidence in potential future proceedings.

Orders

Orders of the court

The Court orders that:

(1) The application is refused.

(2) The exhibits are returned apart from Exhibits A and B.

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:	Ferderer v Cunninghame [2021] NSWLEC 1097
Hearing dates:	2 November 2020
Date of orders:	2 March 2021
Decision date:	02 March 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is refused. (2) The exhibits are returned apart from Exhibits A and B.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – zoning of land – whether the land is within a zone to which the Trees Act applies – row of cypress trees – damage to slab of concrete shed – evidentiary burden lies with the applicant – Court cannot be satisfied that trees have caused the damage – cause of damage is not identified – trees were there first – other possible remedies for damage – application refused
Legislation Cited:	Eurobodalla Local Environmental Plan 2012 Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 4, 7, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Texts Cited:	Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
Category:	Principal judgment
Parties:	Betty Ferderer (Applicant) Douglas Cunninghame (First Respondent) Sue Cunninghame (Second Respondent)
Representation:	Counsel A Fleming (Solicitor) (Applicant) N Allan (Respondents) Solicitors Elizabeth Fleming and Associates (Applicant) Boom Lawyers (Respondents)
File Number(s):	2020/162880
Publication restriction:	No