Joaquim v Adamson (No 2) - [2009] NSWLEC 1367

Land and Environment Court

of New South Wales

CITATION: Joaquim v Adamson (No 2) [2009] NSWLEC 1367

PARTIES:
APPLICANTS
J & J Joaquim
RESPONDENTS
J & J Adamson

FILE NUMBER(S): 20138 of 2009

CORAM: Moore SC - Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :-
Application to re-open orders
Discretion
Applicants poisoned tree leading to need for removal
Applicants to bear cost of removal

LEGISLATION CITED: Land and Environment Court Act 1979
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005

CASES CITED: Joaquim v Adamson [2009] NSWLEC 1312
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270 (21 April 1993)

DATES OF HEARING: 6 November 2009

EX TEMPORE JUDGMENT DATE: 6 November 2009

LEGAL REPRESENTATIVES:
APPLICANTS
In person
RESPONDENTS
Mr J Hannaford, solicitor
Hannaford Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

6 November 2009

09/20138 J & J Joaquim v J & J Adamson

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

1 SENIOR COMMISSIONER: In this matter, we held a site inspection and on-site hearing on 29 May 2009 and we adjourned and held a further hearing in court on 30 June 2009. On 2 October 2009, we published a reserved decision (Joaquim v Adamson [2009] NSWLEC 1312) dealing with the range of matters that were in the application made by the applicants in the present motion. It is appropriate, for the purposes of this morning’s motion, to deal very briefly with the outcome of the earlier proceedings. The outcome effectively fell into several parts. The first related to two trees at the front of the Adamsons’ property with respect to which, during the course of the site inspection, the Adamsons agreed to consent orders for their removal and did so promptly at the commencement of the proceedings (as discussed in our earlier judgment).

2 With respect to the remaining contested issues, the principal matter that required to be dealt with was the fate of a Hills Fig tree located in the rear yard of the Adamsons’ property. We held that that tree required to be removed and that the reason why that tree required to be removed, in response to its state satisfying the test pursuant to s 10(2)(b) of the Trees Disputes Between Neighbour’s Act 2006, was that it was a likely risk of injury:

first, to residents in the Joaquims’ property; and
second, if the part that was a risk to residents in the Joaquims’ property were removed, the remainder of the tree would be a risk to residents of the Adamsons’ property.

3 We held that the cause of the need to remove the tree was because Mr Joaquim or persons acting on his behalf had poisoned the tree. Thus, as discussed in the judgment, the reason for removal of the tree lay entirely in the hands of the applicants of 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 Joaquim v Adamson (No 2)

Details

AGLC: Joaquim v Adamson (No 2) [2009] NSWLEC 1367
Case: [2009] NSWLEC 1367
Decision Date: 6 November 2009

CaseChat Overview and Summary

The applicants, Joaquim and Joaquim, sought to reopen orders made by the Land and Environment Court of New South Wales in relation to a dispute between neighbours over trees. The respondents, Adamson and Adamson, opposed the reopening of the orders. The legal issues before the court were whether the court had the discretion to reopen the orders and whether the applicants were entitled to relief under the circumstances. The court considered the provisions of the Land and Environment Court Act 1979, the Trees (Disputes Between Neighbours) Act 2006, and the Uniform Civil Procedure Rules 2005, as well as relevant case law. The court found that the applicants had been given a proper opportunity to be heard on the critical matters and that there were no grounds to reopen the orders. The court also found that the applicants had poisoned the tree, leading to its removal, and that they were to bear the cost of its removal. The court dismissed the applicants' motion to reopen the orders and adjourned the hearing on the Adamsons' costs motion.

The court held that the applicants had not availed themselves of the opportunity to be heard on the critical matters, and that there were no other grounds to reopen the orders. The court found that the applicants had poisoned the tree, leading to its removal, and that they were to bear the cost of its removal. The court held that the Adamsons had not acted unreasonably in complying with the orders, and that the applicants' motion to reopen the orders was a futility. The court dismissed the applicants' motion to reopen the orders and adjourned the hearing on the Adamsons' costs motion.

Orders