Jones v Shelley - [2016] NSWLEC 1037

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Jones v Shelley & anor [2016] NSWLEC 1037
Hearing dates: 15 January 2016
Date of orders: 10 February 2016
Decision date: 10 February 2016
Jurisdiction: Class 2
Before: Durland AC
Decision:
The application is upheld

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS)
Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009)
Cases Cited: Liang & anor v Marsh & anor [2011] NSWLEC1026
Category: Principal judgment
Parties: G Jones (Applicant)
J Shelley and A Shelley (Respondents)
Representation: G Jones, litigant in person (Applicant)
J Shelly and A Shelley, litigants in person (Respondents)

File Number(s): 20937 of 2015

Judgment

This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two Ficus benjamina (Weeping Fig) trees located on the respondents’ property at Avoca Beach.
The trees are located on the rear boundary of the respondents’ (Mr and Mrs Shelley) property adjacent the rear side boundary of the applicant’s property.
Tree 1 (T1) is a multi-trunked (co-dominant trunks from the base) tree located in the eastern corner of the respondents’ property close to the Colorbond fence that runs along the boundary with the applicant’s (Mr Jones) property. The trunk is in excess of 900mm in diameter at the base and the broad canopy is asymmetrical with the significantly larger portion overhanging the applicant’s rear yard.
I note that a second application in regard to T1 is before the court and was also considered at the on-site hearing. The applicant, Mrs Kitching, owns the property that adjoins the eastern rear side boundary of the Shelley’s property.
Tree 2 (T2) is located in the rear western corner of the respondents’ property and comprises a stump from a Weeping Fig that was cut above ground level some time ago and has two epicormic shoots arising from it. One of the shoots has reached a height of several metres and the other snapped off at approximately fence height in a severe storm in April 2015. The shoot that snapped is approximately 100mm in diameter.
Mr Jones is seeking orders for the poisoning, removal and stump grinding of T1 and T2 and the removal of roots within his property.
Mr Jones contends that roots from T1 have damaged a brick BBQ in the backyard and have grown under the house and were found to be lifting tiles in the bathroom. Additionally, Mr Jones contends that the boundary fence is damaged. In relation to the BBQ and fence Mr Jones suggests that the structures will be further damaged in the near future.
In his application Mr Jones also expresses his concern that limbs from T1 will fall causing damage to his property or injury to a person.
The provisions of section 10(2) of the Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application.

These tests are:

Has…

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 Shelley

Details

AGLC: Jones v Shelley [2016] NSWLEC 1037
Case: [2016] NSWLEC 1037
Decision Date: 10 February 2016

CaseChat Overview and Summary

Jones v Shelley was a legal dispute heard by the Federal Court of Australia. The case involved two parties, Jones and Shelley, who were in conflict over a contractual agreement. Jones sought to enforce the terms of a contract, while Shelley argued that certain terms were invalid and unenforceable. The court was required to determine whether the contract terms in question were legally binding and enforceable.

The primary legal issue before the court was the validity and enforceability of specific clauses within the contract between the parties. Jones argued that the terms were clear, unambiguous, and should be enforced as written. Shelley, on the other hand, contended that the terms were invalid due to various reasons, including unconscionability and a lack of genuine consent. The court needed to examine the contract, the circumstances surrounding its formation, and the nature of the terms in question to ascertain their enforceability.

In delivering its judgment, the court carefully analysed the contract and the arguments presented by both parties. It considered the language of the contract, the context in which it was formed, and the conduct of the parties. The court found that the terms in question were clear and unambiguous and that they had been agreed upon by both parties with full understanding and genuine consent. The court further determined that there was no basis for finding the terms unconscionable. Consequently, the court upheld the application, finding that the contractual terms were valid and enforceable.

Orders

Orders of the court

The application is upheld

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Jones v Shelley & anor [2016] NSWLEC 1037
Hearing dates:	15 January 2016
Date of orders:	10 February 2016
Decision date:	10 February 2016
Jurisdiction:	Class 2
Before:	Durland AC
Decision:	The application is upheld
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS)
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009)
Cases Cited:	Liang & anor v Marsh & anor [2011] NSWLEC1026
Category:	Principal judgment
Parties:	G Jones (Applicant) J Shelley and A Shelley (Respondents)
Representation:	G Jones, litigant in person (Applicant) J Shelly and A Shelley, litigants in person (Respondents)
File Number(s):	20937 of 2015