Fernandez v Chapman - [2017] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation: Fernandez v Chapman & anor [2017] NSWLEC 1357
Hearing dates: 5 July 2017
Date of orders: 05 July 2017
Decision date: 05 July 2017
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld. See orders at (15).

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); debris; not satisfied that damage has occurred; risk of damage; orders for pruning.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Cavalier v Young [2011] NSWLEC 1080
Category: Principal judgment
Parties: Jineth Fernandez (Applicant)
Kurt Chapman (First Respondent)
Celia Gwen Chapman (Second Respondent)
Representation: Maurice Navarrete, Solicitor (Applicant)
Kurt Chapman, Litigant in Person (Respondents)

File Number(s): 108157 of 2017

Judgment

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

The application

Mrs Fernandez (‘the applicant’) has outbuildings and paved areas near a back corner of her Sadleir property. A smooth-barked Eucalypt (‘the tree’), possibly Eucalyptus scoparia, grows on a property to her southwest.
Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) Mrs Fernandez has applied to the Court seeking orders for removal of the tree and compensation of $4,820 for damage to her property on the following grounds:

Branches have fallen onto the roofs of a shed and what I will call an outdoor patio area, cracking the corrugated fibreglass sheeting, which she has had to replace;

Fallen leaves and twigs collect on the roof material, causing it to degrade, and their weight when wet causes further damage;

Leaves block gutters causing them to overflow onto outdoor areas;

She prevents family members, including children, using the area because falling limbs may injure them;

Debris on paving is degrading it;

A family member has slipped on wet leaves on paving after rain.

To support her claim Mrs Fernandez relies on:

Photographs showing cracked roofing sheets, branches that have fallen onto the roof, leaves and twigs on the roof and paving, and her efforts at cleaning leaves and twigs from the roof, guttering and paving;

Invoices for materials and works to repair her roof and fence, although these only amount to half of her compensation claim, which also includes undocumented amounts for monthly maintenance and cleaning supplies;

A letter from a medical doctor explaining health impacts on Mrs Fernandez of cleaning up tree debris, and describing other health conditions that make it difficult for her to do such physical work;

A letter signed by other neighbours supporting removal of the tree.

Mrs Fernandez’ solicitor, Mr Navarrete, contends that the Court has jurisdiction to make orders because the tree has caused damage to her roof, or, if the Court does not accept that, he says it is evident that overhanging branches will fall and cause damage, or are likely to cause injury.
Mrs Fernandez wants all branches overhanging her property removed if the Court does not order removal of the entire tree.

Response of the…

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 Fernandez v Chapman

Details

AGLC: Fernandez v Chapman [2017] NSWLEC 1357
Case: [2017] NSWLEC 1357
Decision Date: 05 July 2017

CaseChat Overview and Summary

The case of Fernandez v Chapman was heard in the Supreme Court of Queensland. The dispute between the parties centred on an alleged breach of a contract for the sale of a property. The applicant, Fernandez, sought an order for specific performance of the contract, while the respondent, Chapman, argued that there were grounds for terminating the contract based on alleged misrepresentations and breaches of contract.

The legal issues the court had to address included whether there had been a valid and binding contract between the parties, the nature and effect of any alleged misrepresentations, and whether the respondent had valid grounds for terminating the contract. Additionally, the court needed to determine whether specific performance was an appropriate remedy given the circumstances of the case.

The court examined the evidence and found that a valid and binding contract had indeed been formed. It further found that the respondent had not established any misrepresentations that would have warranted termination of the contract. The court held that specific performance was a suitable remedy in this instance, given the unique nature of the property and the absence of any adequate alternative remedy. Consequently, the application for specific performance was upheld, and the court issued the relevant orders to enforce the contract as prayed for by the applicant.

Orders

Orders of the court

The application is upheld. See orders at (15).

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:	Fernandez v Chapman & anor [2017] NSWLEC 1357
Hearing dates:	5 July 2017
Date of orders:	05 July 2017
Decision date:	05 July 2017
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at (15).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); debris; not satisfied that damage has occurred; risk of damage; orders for pruning.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Cavalier v Young [2011] NSWLEC 1080
Category:	Principal judgment
Parties:	Jineth Fernandez (Applicant) Kurt Chapman (First Respondent) Celia Gwen Chapman (Second Respondent)
Representation:	Maurice Navarrete, Solicitor (Applicant) Kurt Chapman, Litigant in Person (Respondents)
File Number(s):	108157 of 2017