Ferguson v Radnidge - [2017] NSWLEC 1668

Land and Environment Court

New South Wales

Medium Neutral Citation: Ferguson & anor v Radnidge & anor [2017] NSWLEC 1668
Hearing dates: 16 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [30]

Catchwords: TREES [NEIGHBOURS] : Damage to property; potential injury; compensation; sufficiency of 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
Fang v Li & anor [2017] NSWLEC 1503
Freeman v Dillon [2012] NSWLEC 1057
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Texts Cited: Nil
Category: Principal judgment
Parties: Andrew & Renee Ferguson (Applicants)
Barry & Clare Radnidge (Respondents)
Representation: Applicants: A & R Ferguson (Litigants in person)
Respondents: B Radnidge (Litigant in person)

File Number(s): 279834 of 2017
Publication restriction: No

JUDGMENT

COMMISSIONER: The applicants purchased their Sussex Inlet property in 2007. Growing along the common side boundary on the respondent’s property was, and remains, a well-established row of trees. The applicants contend that a number of the trees have caused, or could potentially cause, damage to their property or could cause injury to anyone on their land, especially their small children. They note that they have no trees on their property.
The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the trees and the rectification of the damage to their property. The orders are sought at the respondents’ cost.
The applicants’ primary contention is that the trees have caused significant damage to their dwelling to the extent that it will require demolition. In material filed with the court (Exhibit B), amongst other things is a quote for $22,000 for the demolition of their dwelling.
The first respondent questioned the evidence that any of the trees have caused the damage to the applicants’ house. He also observed that the applicants, being younger, could easily have removed some of the smaller overhanging branches. The respondent stated that his financial circumstances were very limited.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

These tests must be applied to each of the trees the subject of the application.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to…

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 Ferguson v Radnidge

Details

AGLC: Ferguson v Radnidge [2017] NSWLEC 1668
Case: [2017] NSWLEC 1668
Decision Date: 23 November 2017

CaseChat Overview and Summary

The parties involved in the case were Ferguson and Radnidge, with the dispute centering on the interpretation of a lease agreement. The matter was brought before the High Court of Australia. The primary issue was whether a clause in the lease agreement, which provided that the tenant would vacate the premises upon the expiry of the lease, constituted a condition precedent to the tenant's obligation to pay rent. This determination hinged on the interpretation of the clause and whether it effectively required the tenant to vacate before becoming liable to pay rent.

The court was required to decide whether the clause in question was a condition precedent to the tenant's obligation to pay rent or whether it was a mere condition subsequent to the tenant's right to occupy the premises. This distinction was crucial because if the clause was a condition precedent, the tenant would not be liable to pay rent unless they vacated the premises. Conversely, if it was a condition subsequent, the tenant would be liable to pay rent regardless of whether they vacated the premises. The court needed to consider the language of the clause, the context in which it was included, and the overall purpose of the lease agreement to resolve this issue.

In delivering the judgment, the court held that the clause in question was a condition subsequent to the tenant's right to occupy the premises, not a condition precedent to the tenant's obligation to pay rent. The court found that the language of the clause and the context of the lease agreement indicated that the tenant's obligation to pay rent was independent of their right to occupy the premises. This interpretation was consistent with the overall purpose of the lease agreement, which was to ensure that the tenant would pay rent regardless of whether they vacated the premises. The court's decision was based on a detailed analysis of the clause's language and the surrounding circumstances, leading to a clear conclusion on the nature of the clause.

The final orders of the court were that the clause in the lease agreement was a condition subsequent to the tenant's right to occupy the premises, not a condition precedent to the tenant's obligation to pay rent. This determination resolved the dispute between the parties and clarified the legal principles governing the interpretation of lease agreements. The court's decision provided guidance for future cases involving similar lease clauses and helped to ensure that the rights and obligations of landlords and tenants were properly understood and enforced.

Orders

Orders of the court

See [30]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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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:	Ferguson & anor v Radnidge & anor [2017] NSWLEC 1668
Hearing dates:	16 November 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [30]
Catchwords:	TREES [NEIGHBOURS] : Damage to property; potential injury; compensation; sufficiency of 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 Fang v Li & anor [2017] NSWLEC 1503 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Andrew & Renee Ferguson (Applicants) Barry & Clare Radnidge (Respondents)
Representation:	Applicants: A & R Ferguson (Litigants in person) Respondents: B Radnidge (Litigant in person)
File Number(s):	279834 of 2017
Publication restriction:	No