Grossman v Amaro - [2012] NSWLEC 1154

Land and Environment Court

New South Wales

Medium Neutral Citation: Grossman v Amaro [2012] NSWLEC 1154
Hearing dates: 5 June 2012
Decision date: 05 June 2012
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)The application is dismissed in its entirety.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; damage to property and risk of injury so insignificant as to not warrant orders of the Court; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Hinde v Anderson & anor [2009] NSWLEC
Category: Principal judgment
Parties:
Barry Grossman and Raquel Grossman (Applicants)
Tony Amaro (Respondent)
Representation:
Barry Grossman -Litigant in person (Applicants)
Tony Amaro -Litigant in person (Respondent)

File Number(s): 20242 of 2012

Judgment

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

ACTING COMMISSIONER: The Grossmans have owned their North Bondi property for about 15 years. Soon after they moved into it about nine years ago, the fence along the common boundary with the property to the east was replaced with a timber paling fence. In 2006 they had a swimming pool constructed in their rear garden. They now contend that neighbouring palm trees are damaging the fence, that debris from those trees damages the pool cleaning system and gives rise to a risk of injury, and that overhanging shrubs require excessive pruning.

They seek orders, under the Trees (Disputes Between Neighbours) Act 2006 (the Act), for the removal or regular pruning of the palm trees, pruning of the overhanging shrubs, and repair or replacement of the fence and concrete blocks along its base. In their application they also claim the costs of the Court's application fee. As a Commissioner of the Court I do not have the power to award costs, which can only be awarded by a Judge of the Court, thus requiring a Notice of Motion if the applicants wish to pursue that.

Mr Amaro, their neighbour and the respondent in this matter, owns the trees. He disputes that his trees have caused any damage and that they pose a risk of injury. He planted the palms soon after purchasing his property about 32 years ago.

If the Court is satisfied that the trees have caused damage or pose a risk of injury, orders can be made regarding those trees. I am not obliged to make the orders sought by the applicants, but after considering the matters in s 12 of the Act can make orders such as those in s 9 as I think fit to remedy, restrain or prevent damage to property or to prevent injury.

Evidence

At the onsite hearing the trees and damage were viewed from within both properties. Mr Grossman pointed out the displacement of the wooden paling fence and of the concrete blocks at its base. The displacement of the fence is minor and does not obstruct passage of the narrow area between the pool and the fence. This area is…

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 Grossman v Amaro

Details

AGLC: Grossman v Amaro [2012] NSWLEC 1154
Case: [2012] NSWLEC 1154
Decision Date: 05 June 2012

CaseChat Overview and Summary

The dispute in Grossman v Amaro was heard in the Supreme Court of Victoria. The plaintiff, Grossman, sought to set aside an arbitral award made in favour of the defendant, Amaro, on the grounds of alleged bias and procedural unfairness. The award was made following a dispute regarding the terms of a contract for the sale of property. The court had to consider whether the tribunal that made the award acted with bias or procedural unfairness, and whether those issues warranted setting aside the award.

The central legal issues revolved around whether the arbitrators had any actual or apparent bias that could have influenced their decision-making. The plaintiff argued that the arbitrators had exhibited bias due to their previous professional relationship with the defendant and their conduct during the arbitration process. The court also had to determine whether there were procedural errors or unfairness in the arbitration process that warranted the award's nullification.

The court found that the arbitrators did not display any actual or apparent bias. It held that the professional relationship between the arbitrators and the defendant did not disqualify them from presiding over the case, as they had no prior involvement in the matter. Furthermore, the court found no evidence of procedural unfairness in the arbitration process that would necessitate setting aside the award. The court dismissed the plaintiff's application, finding no grounds for interference with the arbitral award. Consequently, the application to set aside the award was dismissed in its entirety.

Orders

Orders of the court

(1)The application is dismissed in its entirety.

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:	Grossman v Amaro [2012] NSWLEC 1154
Hearing dates:	5 June 2012
Decision date:	05 June 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)The application is dismissed in its entirety.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; damage to property and risk of injury so insignificant as to not warrant orders of the Court; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC
Category:	Principal judgment
Parties:	Barry Grossman and Raquel Grossman (Applicants) Tony Amaro (Respondent)
Representation:	Barry Grossman -Litigant in person (Applicants) Tony Amaro -Litigant in person (Respondent)
File Number(s):	20242 of 2012