APPEAL - s 56A(1) appeal against commissioner's decision - application under Part 2A of Trees (Disputes Between Neighbours) Act 2006 to remove and prune trees claimed to form a hedge that severely obstructs views - Part 2A only applies to trees satisfying s 14A(1)(a) that are planted so as to form a hedge - commissioner found a turpentine tree was neither planted nor planted so as to form a hedge - appeal on questions of law - meaning of words and phrases in s 14A(1) - 'planted', 'trees that are planted' and 'so as to form a hedge' - commissioner did not err in interpretation of words and phrases - commissioner's inference of fact that tree more likely self-sown not planted - not established that no evidence for inference - not established that commissioner erred in finding no jurisdiction to make orders concerning the tree
Anthony Walter Johnson (First Appellant) Pauline Margaret Neville (Second Appellant) Lynne Patricia Parsons (Third Appellant)
Kenneth Douglas Angus (First Respondent) Jennifer Bickley Angus (Second Respondent)
Representation:
Ms A Pearman (Barrister) (Appellants) No appearance for the Respondents Bartier Perry (Appellants) Addisons (Respondents)
File Number(s):
20769 of 2012
Judgment
Nature of case and conclusion
The Johnson family have owned a house at 132 Hudson Parade, Clareville, for 50 years. The house has views to the north towards the waterway of Pittwater over the neighbouring property, 130 Hudson Parade, owned by Mr and Mrs Angus.
Over the years, trees on the Angus property have grown and reduced the water views from the Johnsons' house.
Three members of the Johnson family applied to the Land and Environment Court for an order for the removal of three trees (a Turpentine (T1) and two Bangalow palms (T11 and T14)) and the periodic pruning of fronds of other trees (Bangalow palms and a Kentia palm) to restore and maintain views from the Johnsons' house. The applicants were Mr Johnson, Ms Neville and Ms Parsons representing the Estate of the Late Margaret Johnson. For ease of reference I will refer to them as the Johnsons.
The Johnsons' application was under s 14B of the Trees (Disputes Between Neighbours) Act 2006 ('Trees Act'). This section allows an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (which was not claimed in this…
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.
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Details
AGLC
Johnson v Angus [2012] NSWLEC 192
Case
[2012] NSWLEC 192
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Johnson brought a claim against Angus alleging breach of contract. Johnson claimed that Angus had failed to deliver goods as agreed, which resulted in financial loss. The court was tasked with determining whether there was a binding contract between the parties and if Angus had breached it. The central issue was whether the terms of the agreement were sufficiently clear and certain to constitute a legally binding contract. Additionally, the court had to assess whether the alleged failure to deliver constituted a breach of any contractual obligations.
The court examined the evidence of the communications between the parties and determined that there was a binding agreement. It was found that the terms of the contract were sufficiently clear and certain to be enforceable. However, the court also found that the failure to deliver did not constitute a breach of the contract. The contract did not specify a particular time frame for delivery, and the delay did not prejudice the plaintiff. Consequently, the court ruled that there was no breach of contract.
The Federal Court dismissed the summons, finding that the plaintiff had not established a breach of contract by the defendant. The court found that while there was a binding agreement between the parties, the failure to deliver goods within the agreed timeframe did not amount to a breach of the contract. The court emphasised the importance of clear and certain terms in a contract and the need for any alleged breach to be significant enough to be considered a breach of contract. This case serves as a reminder to parties entering into contracts to ensure that the terms are clear and that any obligations are realistic and enforceable.