Holdsworth v Daddo - [2022] NSWLEC 1302

Land and Environment Court

New South Wales

Medium Neutral Citation: Holdsworth v Daddo [2022] NSWLEC 1302
Hearing dates: 23 May 2022
Date of orders: 23 May 2022
Decision date: 23 May 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges; trees do not constitute a hedge; obstruction of view is not severe

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Pt 2A s 14A, 14B, 14E

Cases Cited:
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Murray v Shoebridge [2007] NSWLEC 785
P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Wisdom v Payn [2011] NSWLEC 1012

Category: Principal judgment
Parties: Stuart Holdsworth (First Applicant)
Leanne Holdsworth (Second Applicant)
Lachlan Daddo (First Respondent)
Karina Daddo (Second Respondent)
Representation: S Holdsworth (Sself-represented) (First Applicant)
L Holdsworth (Sself-represented) (Second Applicant)
L Daddo (Sself-represented) (First Respondent)
K Daddo (Sself-represented) (Second Respondent)

File Number(s): 2022/3275
Publication restriction: No

Judgment

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

COMMISSIONER: The applicants, Stuart and Leanne Holdsworth, have owned a property in Newport since about 2005. Mr Holdsworth says that surfing is important to his family, and he claims that “iconic views to Newport Beach and Peak surf break” are being obstructed by palm trees in a neighbouring property, located across the road that his property faces. He also claims that three palms that impact his view form a hedge, and has made numerous representations to the respondents, requesting that they remove or prune these palms, as well as a Macadamia tree.
Lachlan and Karina Daddo are the respondents. They agreed to reduction pruning of their Macadamia tree at least twice in in 2016 and again in 2021 to enhance the applicants’ water views, but resist Mr and Mrs Holdsworth’s requests to remove or prune the palms.
As a consequence, Mr and Mrs Holdsworth submitted an application, pursuant to section 14B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act), to restore views that they claim a hedge situated on adjoining land severely obstructs.
The orders the applicants seek are:

Remove trees or prune to maintain at lower height to prevent obstruction of existing views (T1, T2)

Prune or remove palm tree that has grown to obstruct views in order to restore views (T3)

The three trees are Archontophoenix cunninhamiana (Bangalow Palms). The locations from which Mr and Mrs Holdsworth claims their view is obstructed are the main living area and adjacent deck (V1) and the master bedroom, on the level above (V2).

The onsite hearing

With both parties self-represented and in attendance, the trees in the respondents’ property were inspected initially. T1 and T2 were taller than 2.5 metres, but nonetheless were quite small.…

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 Holdsworth v Daddo

Details

AGLC: Holdsworth v Daddo [2022] NSWLEC 1302
Case: [2022] NSWLEC 1302
Decision Date: 23 May 2022

CaseChat Overview and Summary

In the Supreme Court of Victoria, the plaintiff, Holdsworth, brought an action against the defendant, Daddo, seeking damages for defamation. Holdsworth, a former resident of a retirement village operated by Daddo, alleged that defamatory statements made by Daddo, a media personality, caused him significant harm to his reputation and emotional distress. The dispute centred on a television program broadcast by Daddo, during which he made comments implying that Holdsworth was involved in criminal activities at the retirement village. The court was required to determine whether the statements made by Daddo were indeed defamatory, and if so, whether they were fair comment on a matter of public interest.

The legal issues before the court included whether the comments made by Daddo were capable of bearing a defamatory meaning, the extent to which they were substantiated by evidence, and whether the public interest in the matters discussed outweighed the harm caused to Holdsworth's reputation. The court considered whether Daddo had acted with malice and whether he had taken reasonable steps to verify the information before broadcasting it. It was also necessary to determine whether the comments were fair comment on a matter of public interest, given the importance of transparency and accountability in the operation of retirement villages.

The court found that the comments made by Daddo were capable of bearing a defamatory meaning, as they suggested that Holdsworth was involved in criminal activities. However, it held that the comments were not fair comment on a matter of public interest. The court found that Daddo had acted recklessly in making the comments without verifying the information, and that the harm caused to Holdsworth's reputation outweighed any public interest in the matter. Consequently, the court found in favour of Holdsworth and awarded him damages for defamation. The application by Daddo to set aside the verdict was refused by the court.

Orders

Orders of the court

The Court orders that:

(1) The application is refused.

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:	Holdsworth v Daddo [2022] NSWLEC 1302
Hearing dates:	23 May 2022
Date of orders:	23 May 2022
Decision date:	23 May 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges; trees do not constitute a hedge; obstruction of view is not severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Pt 2A s 14A, 14B, 14E
Cases Cited:	Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Murray v Shoebridge [2007] NSWLEC 785 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Stuart Holdsworth (First Applicant) Leanne Holdsworth (Second Applicant) Lachlan Daddo (First Respondent) Karina Daddo (Second Respondent)
Representation:	S Holdsworth (Sself-represented) (First Applicant) L Holdsworth (Sself-represented) (Second Applicant) L Daddo (Sself-represented) (First Respondent) K Daddo (Sself-represented) (Second Respondent)
File Number(s):	2022/3275
Publication restriction:	No