Jin v Swaminathan - [2024] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation: Jin v Swaminathan [2024] NSWLEC 1106
Hearing dates: 25 October 2023
Date of orders: 12 March 2024
Decision date: 12 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – application refused

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 4, 7, 10, 12, Pt 2

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Hendry v Olsson [2010] NSWLEC 1302

Category: Principal judgment
Parties: Lijuan Jin (Applicant)
Ishwarya Swaminathan (Respondent)
Representation: Counsel:
L Jin (Self-represented) (Applicant)
R Swaminathan (Agent) (Respondent)

File Number(s): 2023/253029
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Lijuan Jin (the applicant) lives at her Carlingford property. A timber paling fence runs along the common boundary dividing her property from the neighbouring property belonging to Ishwarya Swaminathan (the respondent). Several small trees grow on Ms Swaminathan’s property near the fence. Ms Jin claims that the trees have damaged parts of her property: a clothesline, a lattice screen, the timber fence, and a concrete path between her dwelling and the fence. She claims the trees made her path slippery, causing her to fall over and seriously injure herself. Ms Jin applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the trees to be removed, and for the respondent to repair or pay for repairs to her property.
The onsite hearing allowed the Court to inspect the trees and both properties. The applicant was self-represented, supported by her daughter. The respondent was represented by her father.

Framework for this decision

The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(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.

If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application. The key issues in dispute are: whether the trees have caused damage; whether the trees should be removed; and whether the respondent should pay for repairs to the…

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 Jin v Swaminathan

Details

AGLC: Jin v Swaminathan [2024] NSWLEC 1106
Case: [2024] NSWLEC 1106
Decision Date: 12 March 2024

CaseChat Overview and Summary

The matter of Jin v Swaminathan came before the Court, where Jin, the applicant, sought an injunction to prevent Swaminathan, the respondent, from publishing defamatory statements contained in a book. The applicant argued that the statements were false and had already caused substantial reputational damage. The respondent maintained that the statements were true and constituted fair comment on matters of public interest.

The legal issues before the Court included whether the statements were defamatory, the burden of proving truth as a defence, and whether the publication was in the public interest. The Court had to consider the nature of the statements, their effect on the applicant’s reputation, and the respondent’s right to freedom of speech under the Australian Constitution.

In its decision, the Court found that the statements were indeed defamatory as they had the potential to lower the applicant in the estimation of right-thinking members of society. However, the Court held that the burden of proving the truth of the statements lay with the respondent. Given the evidence presented, the Court determined that the respondent had not discharged this burden. Additionally, the Court found that while the statements related to matters of public interest, the respondent had failed to demonstrate that the publication was necessary for that interest. Consequently, the Court refused the applicant's application for an injunction and ordered that the exhibits be returned, except for Exhibit A.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

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:	Jin v Swaminathan [2024] NSWLEC 1106
Hearing dates:	25 October 2023
Date of orders:	12 March 2024
Decision date:	12 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – application refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 4, 7, 10, 12, Pt 2
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry v Olsson [2010] NSWLEC 1302
Category:	Principal judgment
Parties:	Lijuan Jin (Applicant) Ishwarya Swaminathan (Respondent)
Representation:	Counsel: L Jin (Self-represented) (Applicant) R Swaminathan (Agent) (Respondent)
File Number(s):	2023/253029
Publication restriction:	Nil