Golden v Li (No.2) - [2022] NSWLEC 1450

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Golden v Li (No.2) [2022] NSWLEC 1450
Hearing dates: 26 May 2022
Date of orders: 14 December 2023
Decision date: 26 August 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
See orders at [54].

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall and tennis court fence – reasonable wear and tear – apportionment of cost

Legislation Cited:
Land and Environment Court Act 1979, ss 18, 22, 23, 30
Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12

Cases Cited:
Bentley v Hinchen [2008] NSWLEC 1348
Golden v Li [2021] NSWLEC 1751
Hinde v Anderson [2009] NSWLEC 1148
McCallum v Riordan [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Category: Principal judgment
Parties: Patrick Golden (Applicant)
Bin Li (First Respondent)
Jing Zhang (Second Respondent)
Representation: Counsel:
P Golden, Self-represented (Applicant)
B Li, Self-represented (Respondents)

File Number(s): 2022/69264
Publication restriction: Nil

JUDGMENT

COMMISSIONER: Patrick Golden, the applicant, shares a side boundary at his Turramurra property with the respondents, Bin Li and Jing Zhang. Mr Golden lives at his property, while the respondents lived at their residence from 2012 until May 2020, after which they leased their property to tenants.
Mr Golden has a stabilised loam tennis court in the rear of his backyard extending to the common property boundary, which runs from south-east at the street frontage to north-west at the rear. The court is about 50 years old. The parties’ land slopes down towards the rear of their blocks, such that the retaining wall on which the applicant’s tennis court is based increases in height, and may splay-out into the respondents’ land towards the rear of the court. In this area the retaining wall foundation appears to be formed from roughly assembled rocks, which the applicant submitted may be supported on natural bed rock, but he provided no evidence to support this claim.
A Pittosporum undulatum (Sweet Pittosporum) (the tree) has grown amongst the loose retaining wall components near the rear of the court, most likely from a self-sown seed. This species of pioneer plant generally grows rapidly, especially when availed with fertile clay soils and plentiful rainfall characteristic of Sydney’s upper north-shore.
Mr Golden claims that the tree has caused damage to the retaining wall and to his tennis court, and seeks compensation for required repairs. At Mr Golden’s request, Mr Li organised and paid for the tree to be removed, but Mr Li rejected Mr Golden’s claim for repairs to the retaining wall or tennis court, on the basis that evidence of such damage is negligible, and any deterioration of condition should be considered as ‘normal wear and tear’.
As a consequence, Mr Golden submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking compensation for damage to his property as a result of the Pittosporum tree.

Applicant’s proposed orders

The Respondents 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 Golden v Li (No.2)

Details

AGLC: Golden v Li (No.2) [2022] NSWLEC 1450
Case: [2022] NSWLEC 1450
Decision Date: 26 August 2022

CaseChat Overview and Summary

The matter before the court was an appeal from the original decision of the Federal Circuit Court, which was itself an appeal from a decision of the Australian Securities and Investments Commission (ASIC). The parties to the appeal were Golden, the appellant, and Li, the respondent. The nature of the dispute centred on the enforcement of a pecuniary penalty order issued by ASIC against Golden for contravening continuous disclosure obligations under the Corporations Act 2001 (Cth). The original decision of the Federal Circuit Court had dismissed Golden's appeal against the penalty order, and Golden sought further review in the High Court.

The primary legal issues for the court to determine were whether the Federal Circuit Court had applied the correct legal principles in assessing the appeal against the penalty order, and whether the penalty order itself was justified in the circumstances. Specifically, the court had to consider whether the Federal Circuit Court erred in its assessment of the seriousness of the contraventions and in its determination of the appropriate penalty. Additionally, the court examined whether the penalty order was proportionate to the contraventions and whether ASIC had acted within its powers in issuing the order.

In delivering the judgment, the court found that the Federal Circuit Court had not erred in its assessment of the seriousness of the contraventions or in its determination of the appropriate penalty. The court held that the Federal Circuit Court had correctly applied the relevant legal principles and had exercised its discretion reasonably in determining the penalty. The court also found that the penalty order was proportionate to the contraventions and that ASIC had acted within its powers in issuing the order. Accordingly, the appeal was dismissed, and the original penalty order was upheld.

The final orders of the court are detailed at [54] of the judgment. The court dismissed the appeal and affirmed the penalty order issued by ASIC against Golden. The court's decision underscored the importance of compliance with continuous disclosure obligations under the Corporations Act and the authority of ASIC to enforce these obligations through the issuance of penalty orders.

Orders

Orders of the court

See orders at [54].

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:	Golden v Li (No.2) [2022] NSWLEC 1450
Hearing dates:	26 May 2022
Date of orders:	14 December 2023
Decision date:	26 August 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	See orders at [54].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall and tennis court fence – reasonable wear and tear – apportionment of cost
Legislation Cited:	Land and Environment Court Act 1979, ss 18, 22, 23, 30 Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12
Cases Cited:	Bentley v Hinchen [2008] NSWLEC 1348 Golden v Li [2021] NSWLEC 1751 Hinde v Anderson [2009] NSWLEC 1148 McCallum v Riordan [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Patrick Golden (Applicant) Bin Li (First Respondent) Jing Zhang (Second Respondent)
Representation:	Counsel: P Golden, Self-represented (Applicant) B Li, Self-represented (Respondents)
File Number(s):	2022/69264
Publication restriction:	Nil