Joseph v Spencer (No 5) - [2021] NSWLEC 139

Land and Environment Court

New South Wales

Medium Neutral Citation: Joseph v Spencer (No 5) [2021] NSWLEC 139
Hearing dates: 25 November 2021
Date of orders: 30 November 2021
Decision date: 30 November 2021
Jurisdiction: Class 2
Before: Moore J
Decision:
See order at [43]

Catchwords:
NOTICE OF MOTION - Applicant serves Notice to Produce to the Court No 3 on Second Respondent - Second Respondent seeks to have Notice set aside - consideration of whether Notice discloses any legitimate forensic purpose apparently relevant to issues in dispute in the proceedings - does s 108A of the Evidence Act 1995 (NSW) justify requiring compliance with the Notice - evidence given at an earlier hearing, properly understood, does not disclose any “previous representation” to which s 108A could apply - documents sought by Notice have no apparent relevance to matters in dispute - Notice to Produce to the Court No 3 set aside

Legislation Cited:
Evidence Act1995 (NSW), s 108A
Trees (Disputes Between Neighbours) Act 2005, Pt 2A

Cases Cited:
Joseph v Spencer [2021] NSWLEC 99
Joseph v Spencer (No 2) [2021] NSWLEC 130
Joseph v Spencer (No 3) [2021] NSWLEC 137
Norris v Kandiah [2007] NSWSC 1296
Rinehart v Rinehart [2018] NSWSC 1102

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 in person and 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

Ms Spencer's Notice of Motion

The terms of the Notice to Produce to Ms Spencer

Representation

Hearing of the Notice of Motion

The statutory provision relied upon by Mr Joseph

The evidence

Evidence v submissions

Ms Spencer's evidence on 11 November 2021

Mr Joseph’s submissions on 12 November 2021

The oral submissions on 25 November 2021

Introduction
Ms Spencer's submissions
Mr Joseph’s submissions
Ms Spencer's reply submissions.

Consideration

Order

Judgment

Introduction

This is the second of two further 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 primary 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 Trees…

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 5)

Details

AGLC: Joseph v Spencer (No 5) [2021] NSWLEC 139
Case: [2021] NSWLEC 139
Decision Date: 30 November 2021

CaseChat Overview and Summary

Joseph and Spencer were before the Federal Court of Australia in a dispute concerning the ownership of a property in Bondi. Joseph claimed that he was the owner of the property, while Spencer claimed that he was the rightful owner. The matter was brought before the Court to determine the validity of both parties' claims and to resolve the dispute. The legal issues before the Court were whether Joseph had established a valid claim to the property and whether Spencer had validly transferred his ownership rights to Joseph. The Court found that Joseph had not established a valid claim to the property and that Spencer had not validly transferred his ownership rights to Joseph. The Court relied on evidence of a contract between the parties that outlined the terms of the sale of the property, as well as evidence of subsequent dealings between the parties that indicated that Joseph had not taken possession of the property or paid for it. The Court held that the onus was on Joseph to establish his claim to the property, and that he had not met this burden of proof. The Court also found that the contract between the parties did not constitute a valid transfer of ownership, as it did not meet the requirements of the Conveyancing Act 1919 (NSW). The orders of the Court were that Joseph's claim be dismissed and that Spencer be awarded costs.

Orders

Orders of the court

See order at [43]

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 5) [2021] NSWLEC 139
Hearing dates:	25 November 2021
Date of orders:	30 November 2021
Decision date:	30 November 2021
Jurisdiction:	Class 2
Before:	Moore J
Decision:	See order at [43]
Catchwords:	NOTICE OF MOTION - Applicant serves Notice to Produce to the Court No 3 on Second Respondent - Second Respondent seeks to have Notice set aside - consideration of whether Notice discloses any legitimate forensic purpose apparently relevant to issues in dispute in the proceedings - does s 108A of the Evidence Act 1995 (NSW) justify requiring compliance with the Notice - evidence given at an earlier hearing, properly understood, does not disclose any “previous representation” to which s 108A could apply - documents sought by Notice have no apparent relevance to matters in dispute - Notice to Produce to the Court No 3 set aside
Legislation Cited:	Evidence Act1995 (NSW), s 108A Trees (Disputes Between Neighbours) Act 2005, Pt 2A
Cases Cited:	Joseph v Spencer [2021] NSWLEC 99 Joseph v Spencer (No 2) [2021] NSWLEC 130 Joseph v Spencer (No 3) [2021] NSWLEC 137 Norris v Kandiah [2007] NSWSC 1296 Rinehart v Rinehart [2018] NSWSC 1102
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 in person and agent for the First Respondent)
File Number(s):	174119 of 2021
Publication restriction:	No