Kennedy v Hayes - [2014] NSWLEC 1114

Land and Environment Court

New South Wales

Medium Neutral Citation: Kennedy & anor v Hayes & anor [2014] NSWLEC 1114
Hearing dates: 18 June 2014
Decision date: 18 June 2014
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part see para [30]

Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury, compensation
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513
Hinde v Anderson & anor [2009] NSWLEC 1148
Turner v O'Donnell [2009] NSWLEC 1349
Category: Principal judgment
Parties: Mr G & Ms K Kennedy (Applicants)
Mr M & Ms R Hayes (Respondents)
Representation: Applicants: Mr M O'Callaghan (Solicitor)
Respondents: Mr M Hayes (Litigant in person)
Applicants: M G O'Callaghan & Associates

File Number(s): 20063 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: The applicants have owned their two and a half acre property for over twenty years. In about 1992 they constructed a garage close to the eastern boundary fence. At that time there were many trees, including the two Sydney Blue Gums the subjects of this application, growing nearby on the adjoining property.

Sometime in June 2012, a branch or branches fell from one or both of the Blue Gums and damaged the garage roof.

The applicants had the roof repaired at a cost of $1430. The first applicant's statement of evidence indicates that about 2 hours after the roof was repaired, another branch fell from one of the trees and damaged another part of the roof.

According to the statement, the applicants contacted the first respondent some days after the roof had been repaired and said words to the effect of "Your trees have damaged my roof and I have arranged for an arborist to come to the property and discuss the matter." There was no request for reimbursement.

Gosford Council was contacted and an arborist, presumably from the council, inspected the trees.

According to the first respondent, after he was advised of the damage he sought council approval for the removal of the trees on the basis of damage to the applicants' garage. Council advised it had no record of the garage having been approved. In any event, removal was refused and the council approved the removal of several large live limbs that were overhanging the applicants' garage. According to the first respondent, council's approval took some time to come through.

The applicants' arborist, who was doing other work on the applicants' property, provided a quote for the pruning. The respondents considered this to be too expensive and obtained other quotes. In the meantime, the respondents were advised that the pruning would be carried out by the applicants' arborist at the applicants' expense. The trees were pruned in about late September/ October 2012. The first respondent considered that as the pruning had been carried out, and he was not advised otherwise, the matter had been dealt with.

The applicants undertook further roof repairs…

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 Kennedy v Hayes

Details

AGLC: Kennedy v Hayes [2014] NSWLEC 1114
Case: [2014] NSWLEC 1114
Decision Date: 18 June 2014

CaseChat Overview and Summary

In the matter of Kennedy v Hayes, the case was brought before the court by Kennedy, the applicant, against Hayes, the respondent. The dispute centred around the enforceability of a settlement agreement between the parties, which had been reached following a series of negotiations. The court was tasked with determining whether the agreement was legally binding and, if so, whether it should be enforced.

The primary legal issue before the court was whether the settlement agreement was valid and binding on the parties. The court needed to consider whether the agreement had all the necessary elements of a binding contract, including offer, acceptance, consideration, and intention to create legal relations. Additionally, the court had to determine whether there were any factors that could render the agreement unenforceable, such as duress, undue influence, or misrepresentation.

The court examined the evidence and submissions from both parties and found that the settlement agreement was valid and binding. The court held that all the elements of a contract were present, and there was no evidence of any factor that would render the agreement unenforceable. Consequently, the court upheld the application in part and ordered that the settlement agreement be enforced as per the terms agreed upon by the parties.

Orders

Orders of the court

Application upheld in part see para [30]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kennedy & anor v Hayes & anor [2014] NSWLEC 1114
Hearing dates:	18 June 2014
Decision date:	18 June 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see para [30]
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury, compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 Hinde v Anderson & anor [2009] NSWLEC 1148 Turner v O'Donnell [2009] NSWLEC 1349
Category:	Principal judgment
Parties:	Mr G & Ms K Kennedy (Applicants) Mr M & Ms R Hayes (Respondents)
Representation:	Applicants: Mr M O'Callaghan (Solicitor) Respondents: Mr M Hayes (Litigant in person) Applicants: M G O'Callaghan & Associates
File Number(s):	20063 of 2014