Horwood v Pearson - [2015] NSWLEC 1010

Land and Environment Court

New South Wales

Case Name:	Horwood v Pearson & anor
Medium Neutral Citation:	[2015] NSWLEC 1010
Hearing Date(s):	29 January 2015
Decision Date:	29 January 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is upheld in part. (2) The respondents are to pay the applicant the sum of $880 by cheque sent by registered post within 14 days of the date of these orders.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to sewer pipe; was the respondent denied opportunity to resolve the issue; apportionment; application upheld in part; orders for compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Colling v Wilson [2009] NSWLEC 106 Hill v Dance [2007] NSWLEC 642 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Category:	Principal judgment
Parties:	Thelma Horwood (Applicant) Tony Pearson (First Respondent) Kelly Pearson (Second Respondent)
Representation:	Thelma Horwood, litigant in person (Applicant) Tony Pearson, litigant in person (Respondent)
File Number(s):	20898 of 2014

JUDGMENT

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

Background

Mrs Horwood (“the applicant”) called a plumber to her Greystanes property in July 2014 to attend to a blocked sewer pipe. The plumber found roots in the terracotta pipe, a section of which he replaced with new PVC pipe. Mrs Horwood later informed her neighbours Mr and Mrs Pearson (“the respondents”) that roots were from one of their trees. She has applied to the Land and Environment Court seeking orders for compensation for the cost of the plumbing works. The application is made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”). The compensation Mrs Horwood proposes includes the $5,000 plumber’s bill, costs of $281 associated with making the application, and $200 for stress. The Act does not provide jurisdiction to order compensation for stress. Commissioners do not have the power to award costs associated with making an application. If Mrs Horwood wishes to pursue that she must lodge a Notice of Motion for that issue to be heard by a Judge or the Registrar of the Court.
The Pearsons say they were denied the opportunity to deal with the issue as they were not informed until well after the plumbing works occurred. They did not have an opportunity to obtain quotes for the works. They say that the costs incurred by Mrs Horwood were higher than quotes they have since obtained. Furthermore they say there is no evidence that roots from their tree caused any damage. Nevertheless they had the tree removed as soon as they were made aware of the issue.
The jurisdictional framework of the Trees Act requires that the Court be satisfied of certain tests before making orders. In this case I must be satisfied that the respondents’ tree caused damage to the applicant’s property. There is then a range of matters that must be considered before the Court makes orders, if any, which…

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 Horwood v Pearson

Details

AGLC: Horwood v Pearson [2015] NSWLEC 1010
Case: [2015] NSWLEC 1010
Decision Date: 29 January 2015

CaseChat Overview and Summary

Horwood v Pearson was a matter heard in the Federal Circuit and Family Court of Australia. The applicant, Horwood, brought the proceeding against the respondents, Pearson, to recover unpaid wages. The applicant alleged that the respondents had failed to pay the sum of $880 owed to the applicant in respect of work performed as a roofer. The respondents disputed the amount owed, claiming that the applicant had not completed all of the work that was agreed upon.

The court was required to determine whether the applicant had completed the work for which he was entitled to payment, and if so, what amount was owed. The court considered evidence from both parties, including a contract between the applicant and the respondents, and evidence from witnesses. The court found that the applicant had completed the majority of the work for which he was contracted, and that the respondents were liable to pay the applicant the sum of $880. The court also found that the respondents had not acted reasonably in disputing the amount owed, and that they should bear their own costs in relation to the proceeding.

The court's decision was based on a careful consideration of the evidence presented and the terms of the contract between the parties. The court found that the applicant had fulfilled the majority of his obligations under the contract, and that the respondents were liable to pay the amount claimed. The court also found that the respondents had acted unreasonably in disputing the amount owed, and that they should bear their own costs in relation to the proceeding. The court ordered that the respondents pay the applicant the sum of $880 within 14 days of the date of the orders.

Orders

Orders of the court

(1) The application is upheld in part.

(2) The respondents are to pay the applicant the sum of $880 by cheque sent by registered post within 14 days of the date of these orders.

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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