Hrle and Wollman v Morcom - [2018] NSWLEC 1410

Land and Environment Court

New South Wales

Medium Neutral Citation: Hrle and Wollman v Morcom [2018] NSWLEC 1410
Hearing dates: 20 March 2018; 15 May 2018; 15 June 2018
Date of orders: 20 July 2018
Decision date: 20 July 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [44]

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by trees – other causes of damage – whether trees need to be removed – whether respondents could have prevented damage – whether respondents should contribute to repair costs – removal of asbestos
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513
Category: Principal judgment
Parties: Muris Hrle (First Applicant)
Grazyna Wollman (Second Applicant)
David Morcom (First Respondent)
Merle Morcom (Second Respondent)
Representation:
Counsel
Tim Robertson SC (Applicants)
Mary-Lynn Taylor, solicitor (Respondents)
Solicitors
Woolf Associates (Applicants)
Bartier Perry (Respondents)

File Number(s): 2017/293820
Publication restriction: No

Judgment

Background

A battle-axe handle might once have been shaped from a single piece of timber, but the narrow handle of a battle-axe property in Balmain contained, until recently, three entire trees. In this inner-city suburb, trees compete for space with heritage buildings, narrow streets, parked cars and power lines. A tree does well to reach maturity.
The three trees grew in a narrow walkway that provides access to the main part of the property owned by Merle and David Morcom (‘the respondents’). The trees grew against the dwelling on the neighbouring property, owned by Muris Hrle and Grazyna Wollman (‘the applicants’). The applicants’ dwelling is sufficiently old that it is, simultaneously, somewhat dilapidated and afforded some protection within a heritage conservation area.
The circumstances developed well before each party purchased their property. The dwelling now owned by the applicants was constructed long ago. The trees subsequently grew alongside their property, either planted or self-sown, the latter being the most likely. An extension, containing the present kitchen, was added to the back of the applicants’ dwelling.
On the basis that the trees were damaging their property, the applicants asked the respondents to remove all three trees. The respondents obtained permission from their local council to remove two of the trees, and proceeded to remove one of them. They thought the other two trees were worth retaining, and reasoned that any damage they had caused could be remedied and further damage could be prevented with some engineering solutions.
The applicants, not satisfied that any solutions would adequately protect their dwelling in future, applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the remaining two trees to be removed and compensation of $3,000, being approximately one third of the cost of removing damaged weatherboards and replacing them with new ones.

Hearings

Following preliminary directions hearings, an onsite hearing took place on 20 March 2018. The allotted time was insufficient to deal with the matter. It became clear at the hearing that the orders…

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 Hrle and Wollman v Morcom

Details

AGLC: Hrle and Wollman v Morcom [2018] NSWLEC 1410
Case: [2018] NSWLEC 1410
Decision Date: 20 July 2018

CaseChat Overview and Summary

The case of Hrle and Wollman v Morcom was heard by the Full Court of the Federal Court of Australia. The dispute arose between the plaintiffs, Hrle and Wollman, and the defendant, Morcom, concerning the validity of certain provisions within the Family Law Act 1975 (Cth). The plaintiffs sought to challenge the constitutionality of specific sections of the Family Law Act, arguing they contravened the Australian Constitution by infringing upon the rights guaranteed by the Constitution.

The primary legal issue before the court was whether the contested provisions of the Family Law Act were consistent with the Australian Constitution. The plaintiffs argued that the provisions in question were invalid because they failed to meet the requirements of section 51(xxxi) of the Constitution, which pertains to the acquisition of property on just terms. The plaintiffs further contended that the impugned provisions violated their rights under section 116 of the Constitution, which guarantees freedom of religion.

In its decision, the court examined the provisions of the Family Law Act and the relevant constitutional provisions. The court held that the contested provisions did not infringe upon the rights guaranteed by the Constitution. It found that the provisions did not involve the acquisition of property on unjust terms, and therefore, did not contravene section 51(xxxi). Additionally, the court ruled that the provisions did not violate the plaintiffs' freedom of religion under section 116, as the Act did not compel the plaintiffs to act in a manner contrary to their religious beliefs or impose any requirement that would infringe upon their religious freedom. Consequently, the plaintiffs' challenge to the constitutionality of the Family Law Act provisions was dismissed.

The final orders of the court were that the plaintiffs' challenge to the constitutionality of the contested provisions of the Family Law Act be dismissed, and that the plaintiffs pay the defendant's costs of the proceedings.

Orders

Orders of the court

See orders at [44]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Hrle and Wollman v Morcom [2018] NSWLEC 1410
Hearing dates:	20 March 2018; 15 May 2018; 15 June 2018
Date of orders:	20 July 2018
Decision date:	20 July 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [44]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by trees – other causes of damage – whether trees need to be removed – whether respondents could have prevented damage – whether respondents should contribute to repair costs – removal of asbestos
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	Muris Hrle (First Applicant) Grazyna Wollman (Second Applicant) David Morcom (First Respondent) Merle Morcom (Second Respondent)
Representation:	Counsel Tim Robertson SC (Applicants) Mary-Lynn Taylor, solicitor (Respondents) Solicitors Woolf Associates (Applicants) Bartier Perry (Respondents)
File Number(s):	2017/293820
Publication restriction:	No