Kamboj v Breach; Gonzales v Breach - [2016] NSWLEC 1584

Land and Environment Court

New South Wales

Medium Neutral Citation: Kamboj v Breach; Gonzales v Breach [2016] NSWLEC 1584
Hearing dates: 6 December 2016
Date of orders: 06 December 2016
Decision date: 06 December 2016
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application granted see [11]

Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Liang & anor v Marsh & anor [2011] NSWLEC 1026
Robson v Leischke [2008] NSWLEC 152
Category: Principal judgment
Parties: Mr H S Kamboj (Applicant: 16/273280)
Ms L S Gonzales (Applicant: 16/282510)
Mr D Breach (Respondent both matters)
Representation: Applicant 16/273280: Mr H Kamboj (Litigant in person)
Applicant: 16/282510: Ms L Gonzales (Litigant in person)
Respondent: Mr D Breach (Litigant in person)

File Number(s): 273280 of 2016 and 282510 of 2016

Judgment

COMMISSIONER: The applicants in these two proceedings, Mr Kamboj and Ms Gonzales, own properties which directly adjoin the rear of the respondent’s Blacktown property. Both applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a large and declining Eucalypt growing against the common dividing fence between the parties’ properties.
The orders are sought on the basis that the tree is hollow at its base and should it fail, it could cause damage to both applicants’ properties and or injury to anyone on those properties at the time. Mr Kamboj is also concerned that the tree has damaged the dividing fence between his property and that of the respondent.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

None of the parties provided any independent arboricultural evidence that would meet the requirements of Schedule 7 in the Uniform Civil Procedure Rules 2005. With the arboricultural expertise I bring to the Court I observed the tree to be a mature specimen of Eucalyptus tereticornis (Forest Red Gum), a species naturally found in the area. The tree is in an advanced state of decline. One of the main upper stems is dead and the remaining structural branches have very thin canopies and significant amounts of dead wood. The tree is bifurcated near its base and there is significant decay. The stems appear to have started to separate.
I am satisfied on the basis of the condition of the tree that as it continues to decline, branch and stem failure is inevitable. The failure of sections of the tree could cause injury to anyone on any of the three properties. While the branches are some distance from the applicants’ dwellings, limb/stem failure could damage the dividing…

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

Case: [2016] NSWLEC 1584
Decision Date: 06 December 2016

CaseChat Overview and Summary

The case of Kamboj v Breach and Gonzales v Breach was heard in the Federal Circuit and Family Court of Australia. The dispute involved the applicants, Ms. Kamboj and Ms. Gonzales, who sought to set aside a consent order made in relation to the custody and care of their children. The respondents were Mr. Breach, the father of the children. The applicants argued that the consent order was obtained under duress and that there had been a significant change in circumstances since the order was made.

The legal issues before the court included whether the consent order was procured by duress, and if so, whether the order should be set aside. The court also considered whether there had been a substantial change in circumstances that warranted a modification of the existing parenting arrangements. Furthermore, the court needed to determine whether the children's best interests were served by altering the existing order.

In delivering the judgment, the court held that the applicants had demonstrated that the consent order was obtained under duress, as Ms. Kamboj had been coerced by threats of deportation and financial hardship. The court found that the applicants had satisfied the threshold for setting aside a consent order due to duress. Additionally, the court considered the evidence of changed circumstances and concluded that there had been a significant shift in the family dynamics that justified a modification of the parenting arrangements. The court emphasised the paramount importance of the children's best interests in reaching its decision. Consequently, the court granted the application to set aside the consent order and made new orders regarding the custody and care of the children, reflecting the changed circumstances and the best interests of the children.

Orders

Orders of the court

Application granted see [11]

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:	Kamboj v Breach; Gonzales v Breach [2016] NSWLEC 1584
Hearing dates:	6 December 2016
Date of orders:	06 December 2016
Decision date:	06 December 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application granted see [11]
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Liang & anor v Marsh & anor [2011] NSWLEC 1026 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Mr H S Kamboj (Applicant: 16/273280) Ms L S Gonzales (Applicant: 16/282510) Mr D Breach (Respondent both matters)
Representation:	Applicant 16/273280: Mr H Kamboj (Litigant in person) Applicant: 16/282510: Ms L Gonzales (Litigant in person) Respondent: Mr D Breach (Litigant in person)
File Number(s):	273280 of 2016 and 282510 of 2016