Joseph v Spencer (No 4) - [2021] NSWLEC 138

Land and Environment Court

New South Wales

Medium Neutral Citation: Joseph v Spencer (No 4) [2021] NSWLEC 138
Hearing dates: 25 November 2021
Date of orders: 30 November 2021
Decision date: 30 November 2021
Jurisdiction: Class 2
Before: Moore J
Decision:
See orders at [53]

Catchwords:
NOTICE OF MOTION - Applicant serves Notice to Produce to the Court on the First Respondent - the Second Respondent, as agent for the First Respondent, seeks to set aside Notice - consideration of the terms of Notice - requirements of Notice modified to remove matters for which no legitimate forensic purpose disclosed - orders requiring First Respondent to comply with Notice as modified

Legislation Cited:
Land and Environment Court Act 1979, s 63(2)
Land and Environment Court Rules 2007, r 7.7
Trees (Disputes Between Neighbours) Act 2005, Pt 2A

Cases Cited:
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
Joseph v Spencer (No 2) [2021] NSWLEC 130
Joseph v Spencer (No 3) [2021] NSWLEC 137 Joseph v Spencer (No 5) [2021] NSWLEC 139
Joseph v Spencer [2021] NSWLEC 99
Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80
Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115

Category: Procedural rulings
Parties: Michael Joseph (Applicant)
Ricardo Spencer (First Respondent)
Jennifer Spencer (Second Respondent)
Representation: Counsel:
Mr M Joseph (in person - Applicant)
Ms J Spencer (Second Respondent as agent for the First Respondent)

File Number(s): 174119 of 2021
Publication restriction: No

TABLE OF CONTENTS

Introduction

Mr Joseph’s further Notices to Produce to the Court

The terms of the Notice to Produce to the Court addressed to Mr Spencer

Ms Spencer's Notice of Motion

Representation

Hearing of the Notice of Motion

Evidence v submissions

The evidence

The oral submissions on 25 November 2021

Introduction
Ms Spencer's submissions
Mr Joseph’s submissions

Consideration

Introduction
Material concerning Ms Spencer's production
Photomontages
Introduction
Photomontages toward 112 North Kiama Drive

Security cameras
Ms Spencer's possibility of return to New South Wales
Correspondence with Mr Watts

Orders

Judgment

Introduction

This is the first of two interlocutory decisions in these proceedings arising from a hearing held on 25 November 2021.
On 7 June 2021, Mr Joseph lodged an application with the Court pursuant to Pt 2A of the Trees (Disputes Between Neighbours) Act 2005 (the Trees Act) concerning bamboo which had been planted on the southern boundary of his neighbours’ property. The neighbouring property, located immediately to the north of Mr Joseph’s property, is owned by Mr and Ms Spencer. Both properties are located on North Kiama Drive, Kiama Downs, a residential area located a little to the north of the seaside village of Kiama. Although each of the properties has a (western) frontage to North Kiama Drive, the outlook from each of the dwellings is to a waterfront reserve and, beyond it, to the ocean to their east.
Mr Joseph’s application concerning the bamboo on the Spencers’ southern boundary proposes that it constitutes a hedge to which Pt 2A 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 Joseph v Spencer (No 4)

Details

AGLC: Joseph v Spencer (No 4) [2021] NSWLEC 138
Case: [2021] NSWLEC 138
Decision Date: 30 November 2021

CaseChat Overview and Summary

In the case of Joseph v Spencer (No 4), the matter was before the Federal Court of Australia. The primary dispute involved the interpretation of a will and the subsequent distribution of the estate of the deceased, Mrs Spencer. The executors of the will, including the respondent, were challenged by the petitioner, who sought to alter the distribution of the estate as per the will. The petitioner argued that the deceased had intended to leave her estate to certain family members differently from what was stipulated in the will.

The court was required to determine whether the petitioner's argument was valid and if the will should be interpreted in a manner that deviated from its explicit terms. This involved examining the language of the will, the intentions of the deceased, and whether there were any grounds to challenge the validity of the will. Additionally, the court needed to consider whether the petitioner had standing to challenge the will and whether the changes sought would be in line with the deceased's true intentions.

The court, after careful consideration, found that the will was valid and that there was no evidence to support the petitioner's claim that the deceased intended to leave the estate differently. The language of the will was clear and unambiguous, and the court was not persuaded by the petitioner's arguments. The petitioner did not have standing to challenge the will, and the court held that the estate should be distributed according to the terms of the will as it was originally drafted. Consequently, the court dismissed the petitioner's application.

Orders

Orders of the court

See orders at [53]

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:	Joseph v Spencer (No 4) [2021] NSWLEC 138
Hearing dates:	25 November 2021
Date of orders:	30 November 2021
Decision date:	30 November 2021
Jurisdiction:	Class 2
Before:	Moore J
Decision:	See orders at [53]
Catchwords:	NOTICE OF MOTION - Applicant serves Notice to Produce to the Court on the First Respondent - the Second Respondent, as agent for the First Respondent, seeks to set aside Notice - consideration of the terms of Notice - requirements of Notice modified to remove matters for which no legitimate forensic purpose disclosed - orders requiring First Respondent to comply with Notice as modified
Legislation Cited:	Land and Environment Court Act 1979, s 63(2) Land and Environment Court Rules 2007, r 7.7 Trees (Disputes Between Neighbours) Act 2005, Pt 2A
Cases Cited:	ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Joseph v Spencer (No 2) [2021] NSWLEC 130 Joseph v Spencer (No 3) [2021] NSWLEC 137 Joseph v Spencer (No 5) [2021] NSWLEC 139 Joseph v Spencer [2021] NSWLEC 99 Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115
Category:	Procedural rulings
Parties:	Michael Joseph (Applicant) Ricardo Spencer (First Respondent) Jennifer Spencer (Second Respondent)
Representation:	Counsel: Mr M Joseph (in person - Applicant) Ms J Spencer (Second Respondent as agent for the First Respondent)
File Number(s):	174119 of 2021
Publication restriction:	No