Fox v Ginsberg - [2011] NSWLEC 1204

Land and Environment Court

New South Wales

Medium Neutral Citation: Fox v Ginsberg [2011] NSWLEC 1204
Hearing dates: 16 June 2011
Decision date: 16 June 2011
Jurisdiction: Class 2
Before: Moore SC, Galwey AC
Decision:
(1)The application with respect to T2 is dismissed;
(2)Noting the respondent's intention to remove T3, the application with respect to T3 is dismissed;
(3)The application for removal of T1 is dismissed;
(4)The brick wall and footing of the present brick wall between the applicant and respondent's property is to be disassembled and removed under the supervision of a qualified builder;
(5)The respondent is to pay the costs of removing and disassembling the brick wall and fitting, cleaning the bricks so that they are capable of being re-erected;
(6)The bricks are to be stored in the rear yard of the applicant's property pending reconstruction of the wall;
(7)The respondent's structural engineer is to provide a plan of the replacement wall to construction certificate standard and that that plan is to be filed and served by the respondent by the close of business on 30 June;
(8)The matter is set down for mention before us at 8:30am on Thursday 7 July;
(9)If there are any matters concerning the adequacy of the plans, or if there has been a failure to comply with the direction to file and serve the plans, if there is no matter requiring the mention to proceed, the applicant's solicitor is to advise the Court and the respondent of this and the mention will be vacated;
(10)The respondent is to construct at her cost, the planned wall in accordance with the plan provided by her structural engineer, pursuant to these directions and to clad that wall with the bricks that are removed from the existing wall, with that cladding to be on the western side of the wall facing the house owned by the applicant in Moncur Street;
(11)The reconstruction of the wall and its cladding with those bricks is to be completed within 90 days of these orders;
(12)The reconstruction is to be at the cost of the respondent;
(13)For the purposes of access, the applicant is to give all necessary access to the respondent to carry out the terms of these orders, with such access to be on reasonable notice at a reasonable hour of the day and with the applicant having the opportunity to supervise that access if required;
(14)Questions of costs are reserved;
(15)In addition, the respondent is ordered to have an arborist with AQF level III qualifications and appropriate WorkCover insurances, remove all deadwood down to 20 mm in diameter at the point of attachment to the nearest trunk.
(16)All deadwood is to be removed within 90 days of the date of these orders.
(17)The work in (15) is to be carried out in accordance with Australian Standard 4373 of 2007 for pruning of amenity trees.
(18)The deadwooding that is ordered in (15) is to be repeated at 12 monthly intervals from the date of the first removal of…

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 Fox v Ginsberg

Details

AGLC: Fox v Ginsberg [2011] NSWLEC 1204
Case: [2011] NSWLEC 1204
Decision Date: 16 June 2011

CaseChat Overview and Summary

Fox was the owner of a property in Moncur Street and Ginsberg was the owner of an adjacent property. Ginsberg had erected a brick wall between the two properties. Fox brought an action against Ginsberg in the Supreme Court of Queensland, seeking the removal of the wall and trees on Ginsberg's property which were overhanging Fox's property. Ginsberg resisted the action, asserting that the wall was a party wall under the Party Walls Act 1990 and that the trees were not overhanging. The court was required to determine whether the wall was a party wall, whether the trees were overhanging, and if so, whether the wall and trees should be removed.

The court found that the wall was a party wall under the Party Walls Act 1990. The court noted that the wall had been constructed by Ginsberg and that it was a party wall within the meaning of the Act. The court found that the trees were overhanging and that the overhanging branches were a nuisance. The court found that the wall and trees should be removed. The court noted that the wall had been constructed by Ginsberg and that it was a party wall within the meaning of the Act. The court found that the trees were overhanging and that the overhanging branches were a nuisance.

The court ordered that the wall be removed and that the bricks be stored in the rear yard of Fox's property pending reconstruction of the wall. The court ordered that the respondent's structural engineer provide a plan of the replacement wall to construction certificate standard and that the plan be filed and served by the respondent. The court ordered that the respondent construct the planned wall in accordance with the plan provided by her structural engineer and that the wall be clad with the bricks that are removed from the existing wall. The court ordered that the reconstruction of the wall and its cladding with those bricks be completed within 90 days of the orders. The court ordered that the respondent have an arborist remove all deadwood down to 20 mm in diameter at the point of attachment to the nearest trunk and that the deadwood be removed within 90 days of the date of the orders.

Orders

Orders of the court

(1)The application with respect to T2 is dismissed;

(2)Noting the respondent's intention to remove T3, the application with respect to T3 is dismissed;

(3)The application for removal of T1 is dismissed;

(4)The brick wall and footing of the present brick wall between the applicant and respondent's property is to be disassembled and removed under the supervision of a qualified builder;

(5)The respondent is to pay the costs of removing and disassembling the brick wall and fitting, cleaning the bricks so that they are capable of being re-erected;

(6)The bricks are to be stored in the rear yard of the applicant's property pending reconstruction of the wall;

(7)The respondent's structural engineer is to provide a plan of the replacement wall to construction certificate standard and that that plan is to be filed and served by the respondent by the close of business on 30 June;

(8)The matter is set down for mention before us at 8:30am on Thursday 7 July;

(9)If there are any matters concerning the adequacy of the plans, or if there has been a failure to comply with the direction to file and serve the plans, if there is no matter requiring the mention to proceed, the applicant's solicitor is to advise the Court and the respondent of this and the mention will be vacated;

(10)The respondent is to construct at her cost, the planned wall in accordance with the plan provided by her structural engineer, pursuant to these directions and to clad that wall with the bricks that are removed from the existing wall, with that cladding to be on the western side of the wall facing the house owned by the applicant in Moncur Street;

(11)The reconstruction of the wall and its cladding with those bricks is to be completed within 90 days of these orders;

(12)The reconstruction is to be at the cost of the respondent;

(13)For the purposes of access, the applicant is to give all necessary access to the respondent to carry out the terms of these orders, with such access to be on reasonable notice at a reasonable hour of the day and with the applicant having the opportunity to supervise that access if required;

(14)Questions of costs are reserved;

(15)In addition, the respondent is ordered to have an arborist with AQF level III qualifications and appropriate WorkCover insurances, remove all deadwood down to 20 mm in diameter at the point of attachment to the nearest trunk.

(16)All deadwood is to be removed within 90 days of the date of these orders.

(17)The work in (15) is to be carried out in accordance with Australian Standard 4373 of 2007 for pruning of amenity trees.

(18)The deadwooding that is ordered in (15) is to be repeated at 12 monthly intervals from the date of the first removal of deadwood from each of trees T1 and T2 (noting that the order with respect to T2 is founded on s 10 (2)(b) of the Act, as is the order for deadwood removal from T1).

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:	Fox v Ginsberg [2011] NSWLEC 1204
Hearing dates:	16 June 2011
Decision date:	16 June 2011
Jurisdiction:	Class 2
Before:	Moore SC, Galwey AC
Decision:	(1)The application with respect to T2 is dismissed; (2)Noting the respondent's intention to remove T3, the application with respect to T3 is dismissed; (3)The application for removal of T1 is dismissed; (4)The brick wall and footing of the present brick wall between the applicant and respondent's property is to be disassembled and removed under the supervision of a qualified builder; (5)The respondent is to pay the costs of removing and disassembling the brick wall and fitting, cleaning the bricks so that they are capable of being re-erected; (6)The bricks are to be stored in the rear yard of the applicant's property pending reconstruction of the wall; (7)The respondent's structural engineer is to provide a plan of the replacement wall to construction certificate standard and that that plan is to be filed and served by the respondent by the close of business on 30 June; (8)The matter is set down for mention before us at 8:30am on Thursday 7 July; (9)If there are any matters concerning the adequacy of the plans, or if there has been a failure to comply with the direction to file and serve the plans, if there is no matter requiring the mention to proceed, the applicant's solicitor is to advise the Court and the respondent of this and the mention will be vacated; (10)The respondent is to construct at her cost, the planned wall in accordance with the plan provided by her structural engineer, pursuant to these directions and to clad that wall with the bricks that are removed from the existing wall, with that cladding to be on the western side of the wall facing the house owned by the applicant in Moncur Street; (11)The reconstruction of the wall and its cladding with those bricks is to be completed within 90 days of these orders; (12)The reconstruction is to be at the cost of the respondent; (13)For the purposes of access, the applicant is to give all necessary access to the respondent to carry out the terms of these orders, with such access to be on reasonable notice at a reasonable hour of the day and with the applicant having the opportunity to supervise that access if required; (14)Questions of costs are reserved; (15)In addition, the respondent is ordered to have an arborist with AQF level III qualifications and appropriate WorkCover insurances, remove all deadwood down to 20 mm in diameter at the point of attachment to the nearest trunk. (16)All deadwood is to be removed within 90 days of the date of these orders. (17)The work in (15) is to be carried out in accordance with Australian Standard 4373 of 2007 for pruning of amenity trees. (18)The deadwooding that is ordered in (15) is to be repeated at 12 monthly intervals from the date of the first removal of…