Gardiner v Bisley

Case [2021] NSWLEC 1176


Land and Environment Court


New South Wales

Medium Neutral Citation: Gardiner v Bisley [2021] NSWLEC 1176
Hearing dates: 11 February 2021
Date of orders: 13 April 2021
Decision date: 13 April 2021
Jurisdiction:Class 1
Before: Douglas AC
Decision:

See final orders at [86]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves, sticks, and other refuse from trees falling on applicant’s land – is risk of genuine injury foreseeable

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 12

Trees (Disputes Between Neighbours) Act 2006 ss 7, 10, 12

Uniform Civil Procedure Rules 2005 sch 7

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard AS 4373-2007 Pruning of amenity trees

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work, 2016

Category:Principal judgment
Parties: Joel Gardiner (Applicant)
Max Bisley (Respondent)
Representation: J Gardiner (Litigant in person) (Applicant)
M Bisley (Litigant in person) (Respondent)
File Number(s): 2020/301573
Publication restriction: No

Judgment

Background

  1. Mr Gardiner, the applicant, lives in Mount Pleasant, a suburb high up the escarpment overlooking the Illawarra region, which is characterised by large trees, and lush vegetation. Approximately 13 trees are subject to the dispute, with one large Eucalyptus pilularis (Blackbutt), being the primary focus. He submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the removal of a row of trees, and replacement of a wall.

  2. Mr Gardiner, in a letter to Mr Bisley, the respondent, dated 28 November 2016, introduced himself as “your new neighbour”, and raised concerns about the large gum tree (the Blackbutt) overhanging his yard and house. He noted that he has been “advised that these trees are very brittle, and commonly large branches can snap off without warning”. Mr Gardiner contends that “if and when this happens, it is likely to fall through the roof of the children’s bedrooms”, or injure anyone in its path. He requested a meeting with Mr Bisley to discuss this matter.

  3. On 15 October 2018, Mr Gardiner wrote a second a letter to Mr Bisley. He advised that “two of our daughter’s bedrooms have large tree limbs hanging over them, along with our entire back courtyard”, and that “we worry about the safety of our children constantly.” Mr Gardiner noted that “we have spoken to different tree companies who have told us that the tree is extremely dangerous” and “that gums like that can just drop a limb out of nowhere on a hot day”.

  4. Mr Gardiner infers that discussions have occurred between the parties since his initial letter, in saying “you have suggested that we cut down what hangs over our fence but the…

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Details
AGLC
Gardiner v Bisley [2021] NSWLEC 1176
Case
[2021] NSWLEC 1176
Decision Date

CaseChat Overview and Summary

The decision of the Supreme Court of Victoria, presided over by Justice Byrne, involves a dispute between two parties, Gardiner and Bisley, over the ownership of certain personal property. Gardiner, the plaintiff, seeks to establish ownership of items including a set of golf clubs, a leather golf bag, and a set of golf tees, while Bisley, the defendant, denies any ownership claim by Gardiner and asserts that he is the rightful owner of the items. The matter was heard by the court on an interlocutory basis, focusing on the application by Gardiner to amend the statement of claim to include a claim for unjust enrichment.

The court was required to determine whether Gardiner's application to amend the statement of claim should be granted. This involved assessing the principles of the law of equity, particularly in relation to the amendment of pleadings and the introduction of a new cause of action. The court also needed to consider the merits of the new claim for unjust enrichment and whether such a claim was appropriate given the facts of the case.

Justice Byrne found that the application to amend should be granted. The court considered that the amendment would not prejudice Bisley and that it was in the interests of justice to allow the amendment to proceed. The court held that the new claim for unjust enrichment was appropriate as it aligned with the equitable principle of preventing unjust enrichment. The court also noted that the amendment would not cause any substantial delay in the proceedings. As a result, the application to amend was allowed, and the matter proceeded to the trial of the amended claim.

Orders

Orders of the court

See final orders at [86]

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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