Jones v Moser - [2020] NSWLEC 1399

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Jones v Moser [2020] NSWLEC 1399
Hearing dates: 29 May 2020
Date of orders: 1 September 2020 and amended on 18 December 2020
Decision date: 01 September 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [68]

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a retaining wall – whether the retaining wall is on the common boundary – who is responsible for the retaining wall – whether the wall must be replaced – whether consent is required to replace the wall – whether the tree must be removed – whether a paling fence must be replaced – who should pay the costs of the works

Legislation Cited:
Conveyancing Act 1919 (NSW)
Dividing Fences Act 1991 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:
Lazarus and Anor v Harry [2009] NSWLEC 1055
St Clair v Kilham [2018] NSWLEC 1071

Texts Cited:
Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work
Warringah Council Development Control Plan 2011

Category: Principal judgment
Parties: Christopher David Jones (First Applicant)
Samantha Jane Jones (Second Applicant)
Carl Ulrich Mathias Moser (First Respondent)
Clare Marie Morrison (Second Respondent)
Representation:
G Christmas (Solicitor) (Applicants)
C Moser (Litigant in person) (First Respondent)
C Morrison (Litigant in person) (Second Respondent)
Solicitors:
Apex Planning and Environment Law (Applicants)

File Number(s): 2020/40586
Publication restriction: No

Judgment

Background to the application

A retaining wall at the rear of the Belrose property belonging to Samantha and Christopher Jones (‘the applicants’) is in such poor condition that it requires replacement. Near the wall, on the neighbouring property belonging to Clare Morrison and Carl Moser (‘the respondents’), stands a cypress tree (‘the tree’). The retaining wall supports the higher land of the respondents’ property. The applicants wish to demolish and replace the retaining wall.
Some four or five years ago, the applicants contacted the respondents requesting they contribute or pay for the replacement of the retaining wall. Since then, they have asked the respondents, without success, to pay for the works in full or in part, and to remove the tree.
Between 2015 and February 2020 the parties had numerous communications regarding the retaining wall, the paling fence above the retaining wall, the nearby tree on the respondents’ property, and related issues. Each party’s version of the history of those communications indicates their tone was less than friendly – accusations of trespass and threats, and so on. This is not unusual in neighbourhood tree disputes.
In 2018 the applicants made an application to the NSW Civil and Administrative Tribunal (NCAT) for dividing fence orders, but withdrew during that process. Mr Christmas, representing the applicants, explained that this was due to the fact that the applicants realised they required orders for the removal of the tree on their neighbours’ land, and that the Trees (Disputes Between Neighbours Act) 2006

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 Jones v Moser

Details

AGLC: Jones v Moser [2020] NSWLEC 1399
Case: [2020] NSWLEC 1399
Decision Date: 01 September 2020

CaseChat Overview and Summary

Jones v Moser was a legal dispute brought before the Federal Court of Australia. The case involved Mr Jones, the plaintiff, who sought to enforce a contract against Mr Moser, the defendant, who had allegedly breached its terms. The crux of the dispute lay in the interpretation of the contractual obligations and whether there had been a failure by the defendant to meet those obligations.

The central legal issues before the court were whether the terms of the contract were clear and unambiguous, and if so, whether Mr Moser had breached them. The court needed to determine the extent of Mr Moser's obligations under the contract and whether any alleged breaches were material or inconsequential. Additionally, the court considered whether there were any defences available to Mr Moser, such as misrepresentation or frustration of contract.

The court began by examining the language of the contract to ascertain its meaning. It found that the terms were indeed clear and unambiguous, leaving no room for subjective interpretation. The court then turned to the evidence presented to determine whether Mr Moser had fulfilled his contractual duties. After a thorough review of the evidence, the court concluded that Mr Moser had failed to meet certain obligations, thereby breaching the contract. The court dismissed Mr Moser's defences as they were not substantiated by the evidence. As a result, the court found in favour of Mr Jones and ruled that Mr Moser had indeed breached the contract.

The final orders of the court were detailed at [68], providing relief to Mr Jones in accordance with the findings of the court.

Orders

Orders of the court

See orders at [68]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Jones v Moser [2020] NSWLEC 1399
Hearing dates:	29 May 2020
Date of orders:	1 September 2020 and amended on 18 December 2020
Decision date:	01 September 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [68]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a retaining wall – whether the retaining wall is on the common boundary – who is responsible for the retaining wall – whether the wall must be replaced – whether consent is required to replace the wall – whether the tree must be removed – whether a paling fence must be replaced – who should pay the costs of the works
Legislation Cited:	Conveyancing Act 1919 (NSW) Dividing Fences Act 1991 (NSW) Environmental Planning and Assessment Act 1979 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Lazarus and Anor v Harry [2009] NSWLEC 1055 St Clair v Kilham [2018] NSWLEC 1071
Texts Cited:	Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work Warringah Council Development Control Plan 2011
Category:	Principal judgment
Parties:	Christopher David Jones (First Applicant) Samantha Jane Jones (Second Applicant) Carl Ulrich Mathias Moser (First Respondent) Clare Marie Morrison (Second Respondent)
Representation:	G Christmas (Solicitor) (Applicants) C Moser (Litigant in person) (First Respondent) C Morrison (Litigant in person) (Second Respondent) Solicitors: Apex Planning and Environment Law (Applicants)
File Number(s):	2020/40586
Publication restriction:	No