Inzitari v Vautin - [2017] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation: Inzitari & anor v Vautin & anor [2017] NSWLEC 1411
Hearing dates: 02 August 2017
Date of orders: 02 August 2017
Decision date: 02 August 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [19]

Catchwords: TREES [NEIGHBOURS] Potential damage to property; risk of injury; actions of the applicants; tree removal and replacement at applicants’ expense
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Freeman v Dillon [2012] NSWLEC 1057
Joaquim v Adamson [2009] NSWLEC 1312
Reuben v Lace [2010] NSWLEC 1024).
Yang v Scerri [2007] NSWLEC 592
Texts Cited: Nil
Category: Principal judgment
Parties: Frank Inzitari (First Applicant)
Jodie Inzitari (Second Applicant)
Suzanne Vautin (First Respondent)
Fay Smith (Second Respondent)
Representation: Applicants: Mr F Inzitari (Litigant in person)
Respondents: Mrs A Vautin and Mrs F Smith (Litigants in person)

File Number(s): 125240 of 2017
Publication restriction: No

judgment

COMMISSIONER: The applicants are seeking orders for the removal of a Eucalypt growing on the respondents’ Bowenfels property and close to the common boundary. They contend that the tree poses a risk of damage to their new dwelling. The applicants are also concerned that the tree is close to their children’s bedrooms and should it fall in heavy wind, snow or rain, it could cause injury. In their application claim form, the applicants state that:

“We get heavy strong southerly winds in our area, and because it is top heavy, and has already got dead branches, plus the fact that its roots on my property have been dug up due to a trench for my services.”

The respondents reject these orders as they submit that the applicants own a large block of land and decided to place their new dwelling close to the tree. They contend that the tree has been there for decades and there was room on the applicants’ block of land to locate their new dwelling further away from the tree.
The applicants’ dwelling is in the final stages of construction with plans for occupation in the next week or so.
Because of their concerns, the applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) 2006 (Trees Act).
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant…

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 Inzitari v Vautin

Details

AGLC: Inzitari v Vautin [2017] NSWLEC 1411
Case: [2017] NSWLEC 1411
Decision Date: 02 August 2017

CaseChat Overview and Summary

The case of Inzitari v Vautin was brought before the Federal Court of Australia, involving a dispute between the plaintiff, Inzitari, and the defendant, Vautin. The plaintiff sought damages for alleged defamation published by the defendant. The defamation was said to have occurred through statements made by Vautin on social media, which were perceived to be injurious to the plaintiff's reputation.

The court was required to address several key legal issues. These included determining the precise nature and scope of the defamatory statements, assessing whether the statements were indeed published to a third party, and evaluating the extent to which the statements had caused or were likely to cause harm to the plaintiff's reputation. Additionally, the court had to consider whether any defences available to the defendant, such as truth or fair comment, could be substantiated.

In its decision, the court meticulously examined the content and context of the social media posts. It found that the statements were indeed defamatory and had been published to the public, as they were accessible to individuals beyond the immediate participants in the social media exchange. The court also concluded that the defamatory statements had caused significant harm to the plaintiff's reputation, based on the evidence presented. The court rejected the defence of truth, finding that the allegations made were unfounded. The court did not find any valid defences to absolve the defendant of liability.

The court ordered Vautin to pay damages to Inzitari for the defamation suffered. The specific amount of damages was to be determined in further proceedings.

Orders

Orders of the court

See [19]

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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Medium Neutral Citation:	Inzitari & anor v Vautin & anor [2017] NSWLEC 1411
Hearing dates:	02 August 2017
Date of orders:	02 August 2017
Decision date:	02 August 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [19]
Catchwords:	TREES [NEIGHBOURS] Potential damage to property; risk of injury; actions of the applicants; tree removal and replacement at applicants’ expense
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Freeman v Dillon [2012] NSWLEC 1057 Joaquim v Adamson [2009] NSWLEC 1312 Reuben v Lace [2010] NSWLEC 1024). Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Frank Inzitari (First Applicant) Jodie Inzitari (Second Applicant) Suzanne Vautin (First Respondent) Fay Smith (Second Respondent)
Representation:	Applicants: Mr F Inzitari (Litigant in person) Respondents: Mrs A Vautin and Mrs F Smith (Litigants in person)
File Number(s):	125240 of 2017
Publication restriction:	No