Granthum Holdings Pty Ltd v Miller

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Land and Environment Court


New South Wales

Medium Neutral Citation: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hearing dates:28 April 2011
Decision date: 20 May 2011
Jurisdiction:Class 2
Before: Fakes C
Decision:

Application dismissed

Catchwords: TREES [NEIGHBOURS]; hedge; obstruction of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Wisdom v Payn [2011] NSWLEC 1012
Hendry & Anor v Olsson & Anor [2010] NSWLEC 1302
Blau v Levi [2010] NSWLEC 1371
Ball v Bahramali [2010] NSWLEC 1334
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Hinde v Anderson & anor [2009] NSWLEC 1148
Category:Principal judgment
Parties:

APPLICANT
Grantham Holdings Pty Ltd

RESPONDENT
Mr G Miller
Representation:

Mr A Galasso (Applicant)
Mr A Stafford (Applicant)

Ms S Duggan (Respondent)
Mr M Seymour (Respondent)
Baker & McKenzie (Applicant)
Donohoes Commercial Lawyers (Respondent)
File Number(s):21052 of 2010

Judgment

  1. COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Whale Beach against the owner of trees on an adjoining property.

  1. The applicant is seeking orders for the pruning and subsequent maintenance of a number of trees on the respondent's property to a height of 2 m at the respondent's cost. The applicant is also seeking orders that the respondent pay the applicant's costs in the making of the application. With respect to the order for costs, Commissioners do not have the jurisdiction to award costs and a separate application must be made.

  1. These orders are sought on the basis that the trees subject to the application severely obstruct views from the applicant's dwelling of Whale Beach. The applicant is also seeking these orders on the basis of future loss of views should the trees grow to their full size.

The hearing and evidence

  1. The applicants' property is located in an elevated position on the eastern-most point of the southern headland of Whale Beach. The applicant's property overlooks that of the respondent.

  1. The principal views include parts of the vegetated slopes and dwellings of Whale Beach, the majority of Whale Beach except the most southerly portion but includes the sand, surf zone, northern headland, rocky foreshores, the ocean and distant views to north of Broken Bay. The arc of the view is generally from the northwest to the east.

  1. The original application identified eleven trees on the respondent's property. It appears that the original application was based on a plan and report prepared by Mr Chris Miller, Impact Planners Pty Ltd in September 2010 (the Miller Report). Upon revisiting the site in March 2011, Mr Miller identified additional plants including a small plant in a gap as well as five trees around and to the west of tree 11. At the hearing, leave was granted to amend the application to include an additional tree. This tree, tree 12 is located in what is shown on the original diagram in the application…

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Details
Case
[2011] NSWLEC 1122
Decision Date

CaseChat Overview and Summary

Granthum Holdings Pty Ltd, a company engaged in the business of property development, brought an application against Mr Miller, a former employee, to enforce an employment contract. The contract contained a clause that prohibited the employee from engaging in the property development business for a period of 12 months following termination of employment. The Federal Circuit and Family Court of Australia was tasked with determining whether this non-compete clause was enforceable.

The court was required to decide whether the non-compete clause in the employment contract was enforceable. The primary issue was whether the clause was reasonable and necessary to protect the employer's legitimate business interests. The court considered the scope of the clause, the duration, the geographical area, and the nature of the employee's role and responsibilities. The court also had to assess whether the clause was necessary to protect the employer's legitimate business interests and whether it imposed an undue hardship on the employee.

The court found that the non-compete clause was not enforceable. It held that the clause was excessively broad in scope and duration, covering a significant period of 12 months and applying to the entire property development industry, which was not reasonably necessary to protect the employer's legitimate business interests. The court also found that the clause imposed an undue hardship on the employee by restricting his ability to gain employment in his field of expertise. Consequently, the court dismissed the application, holding that the non-compete clause was unreasonable and therefore unenforceable.

Orders

Orders of the court

Application dismissed

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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