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Joaquim v Adamson

Joaquim v Adamson

Case [2009] NSWLEC 1312 2 October 2009

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Land and Environment Court

of New South Wales

CITATION: Joaquim v Adamson [2009] NSWLEC 1312

PARTIES:
APPLICANTS
J & J Joaquim
R$ESPONDENTS
J & J Adamson

FILE NUMBER(S): 20138 of 2009

CORAM: Moore SC - Fakes AC

KEY ISSUES: DISCRETION - EVIDENCE - JURISDICTION - NEIGHBOUR APPLICATION - TREES (NEIGHBOURS) :-
Poisoning of tree
Interference with roots of tree
Death of tree caused by applicant
Applicant to pay costs of removal

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 ss 9, 10, 12 and 16
Civil Procedure Act 2005 s 56(1)
Land and Environment Court Act 1979 s 38(2)
Uniform Civil Procedure Rules 2005

CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
Horn & anor v Latter [2007] NSWLEC 744
Hinde v Anderson and anor [2009] NSWLEC 1148

DATES OF HEARING: 29 May and 30 June 2009

DATE OF JUDGMENT:
2 October 2009

LEGAL REPRESENTATIVES:
APPLICANTS
Dr B Caffrey, barrister
RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES AC

2 October 2009

20138 of 2009 J & J Joaquim v J & J Adamson

JUDGMENT

Introduction

1 COMMISSIONERS: Mr and Mrs Joaquim live at 21 Turriell Bay Road, Lilli Pilli. Mr and Mrs Adamson live next door at 23 Turriell Bay Road. Mr and Mrs Adamson have a large number of trees on their property. Mr and Mrs Joaquim havemade an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for removal of a number of these trees, two at the front of the Adamson property and six at the rear.

2 The most prominent of these trees is a Hills Fig tree located in close proximity to the dwelling on each of the Joaquim and Adamson properties. The Hills fig is dying, asymmetrically, with the portion closest to the Joaquim's property being dead or nearly so. The causes of the death of this tree are significant matters for consideration in these proceedings.

The inspection and subsequent court hearing

3 In order to understand some of what follows, it is necessary to set out a little of the procedural history in this matter. When this application first came before the Court, at a preliminary hearing on 24 April 2009, the applicants were represented by their barrister, Mr Caffrey, and the respondents appeared in person.

4 During the course of the preliminary hearing, as is the practice of the Court in these matters, the appropriate directions from the set of standard directions in tree dispute matters were made (the set of standard directions in tree dispute matters is publicly available on the Court’s Internet website) and copies were provided to the parties.

5 Particularly relevant to this decision, Standard Directions 5, 6 and 7 were made as this application included not merely an…

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 Joaquim v Adamson

Details

AGLC: Joaquim v Adamson [2009] NSWLEC 1312
Case: [2009] NSWLEC 1312
Decision Date: 2 October 2009

CaseChat Overview and Summary

Joaquim v Adamson concerned a dispute between two neighbouring properties in which the Joaquims sought orders under the Trees (Disputes Between Neighbours) Act 2006 to remove certain trees on the Adamsons' property, as well as compensation for damage caused to their property. The Adamsons opposed the application and denied any responsibility for the death of one of the trees and for any damage to the Joaquims' property. The case was heard over two days, including a site inspection. The Court considered the evidence and the statutory provisions and decided that the Joaquims' application should be partly successful. The Court made orders for the removal of some trees on the Adamsons' property and for the removal of dead wood from another tree. The Court also ordered the Adamsons to pay the Joaquims compensation for damage caused by a tree on their property. The Court decided that the Joaquims were responsible for poisoning a fig tree and for the removal of the tree. The Court also decided that the Adamsons were responsible for the cost of removing certain trees from their property and for paying compensation for the damage caused by the fig tree. The Court ordered that the Adamsons reimburse the Joaquims for the cost of removing the fig tree and for the cost of removing another tree from their property.

Orders