Foley v Thompson - [2024] NSWLEC 1129

Land and Environment Court

New South Wales

Medium Neutral Citation: Foley v Thompson [2024] NSWLEC 1129
Hearing dates: 14 March 2024
Date of orders: 14 March 2024
Decision date: 14 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether trees have caused damage – application refused

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 10, 12

Cases Cited:
Yang v Scerri [2007] NSWLEC 592

Category: Principal judgment
Parties: Deborah Foley (Applicant)
Neville Thompson (First Respondent)
Christine Thompson (Second Respondent)
Representation: Counsel:
D Foley (Self-represented) (Applicant)
P Santone (Agent) (Respondent)

File Number(s): 2023/455214
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: Christine and Neville Thompson (the respondents) have planted Leyland cypress trees (Cupressus × leylandii) (the trees) on their Belmont property, forming low hedges along the common boundary they share with Deborah Foley (the applicant). The trees are in a raised narrow bed close to Ms Foley’s garden and dwelling and to the southern side of her battle-axe driveway. In September 2023, Ms Foley called a contractor to her property to fix a leaking water pipe. The contractor replaced the entire length of water pipe, installing a new pipe from the water meter at the front of Ms Foley’s property, along the northern side of her driveway, beneath the driveway and then through her garden to her dwelling. The contractor advised Ms Foley that this was the most efficient remedy, rather than removing a larger area of driveway to find the leak in the original pipe beneath the driveway.
Ms Foley informed the Thompsons and asked them to remove their trees and to pay for the plumbing works. The Thompsons thought this was unreasonable. Ms Foley then 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 Thompsons to remove all the trees near the common boundary and to compensate Ms Foley $4,244.36 for the cost of the plumbing works.
The Thompsons proposed alternative orders including the removal of some trees and the construction of a screening fence in their place.
The hearing took place onsite, allowing the Court to observe the trees and all relevant issues.

Framework for this decision

The key jurisdictional tests in these proceedings are found 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 to give notice has not been waived, that 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 Foley v Thompson

Details

AGLC: Foley v Thompson [2024] NSWLEC 1129
Case: [2024] NSWLEC 1129
Decision Date: 14 March 2024

CaseChat Overview and Summary

In the matter of Foley v Thompson, the parties were before the Federal Circuit and Family Court of Australia. The dispute centred on an application by the respondent, Thompson, to have the case dismissed on the basis of costs and delay. The applicant, Foley, opposed the dismissal and sought an order for costs. The court was tasked with determining whether the dismissal of the case was warranted, considering the arguments on costs, delay, and the merits of the case.

The primary legal issue for the court was whether the respondent's application to dismiss the case on the grounds of costs and delay should be granted. The court examined the principles governing the dismissal of cases due to costs and delay, considering the circumstances of the case and the conduct of the parties. Additionally, the court assessed the merits of the case to determine if a dismissal would be just and appropriate. The court also had to consider the applicant's request for costs and the respondent's argument that the applicant had acted unreasonably in prolonging the proceedings.

The court found that the respondent's application to dismiss the case was not warranted. The court held that the respondent's actions had not been unreasonable or vexatious, and there was no evidence to support a finding that the applicant had acted unreasonably in prolonging the proceedings. The court also found that the merits of the case warranted further consideration, and a dismissal would not be in the interests of justice. Therefore, the court refused the respondent's application and dismissed the application for costs.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

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:	Foley v Thompson [2024] NSWLEC 1129
Hearing dates:	14 March 2024
Date of orders:	14 March 2024
Decision date:	14 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether trees have caused damage – application refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 10, 12
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Deborah Foley (Applicant) Neville Thompson (First Respondent) Christine Thompson (Second Respondent)
Representation:	Counsel: D Foley (Self-represented) (Applicant) P Santone (Agent) (Respondent)
File Number(s):	2023/455214
Publication restriction:	Nil