Kingsley-Smith v O'Brian - [2016] NSWLEC 1606

Land and Environment Court

New South Wales

Medium Neutral Citation: Kingsley-Smith v O’Brian & ors [2016] NSWLEC 1606
Hearing dates: 15 December 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; Hedge – obstruction of sunlight and views; sufficiency of evidence
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
McDougall v Philip [2011] NSWLEC 1280
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Heather Kingsley-Smith (Applicant)
Benn O’Brian (First Respondent)
Zane O’Brian (Second Respondent)
Noel Macnamara (Third Respondent)
Lynne McPherson (Fourth Respondent)
Representation: Applicant: Graeme Sproule (Agent)
First Respondent: Benn O’Brian (Litigant in person)
Second Respondent: Zane O’Brian (Litigant in person)
Third & Fourth Respondents: Zane O’Brian (Agent)

File Number(s): 270134 of 2016

Judgment

COMMISSIONER: In June 2015 the applicant, Ms Kingsley-Smith, purchased a property in Banora Point. Growing on the adjoining property to the north were several clumps/rows of bamboo.
The applicant has applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking to remedy the impact of the bamboo on her property, potential injury to persons on her property, and on views from and sunlight to parts of her dwelling.
The applicant has appointed the previous owner of her property, Mr Sproule, as her agent in these proceedings. Mr Sproule continues to reside on the applicant’s property.
The adjoining property has been recently sold. The respondents at the time the application was made were Mr and Ms O’Brian. The new owners, Mr MacNamara and Ms McPherson have been joined as third and fourth respondents and have appointed Ms O’Brian as their agent.

The trees

The trees the subject of this application are two rows (T1 and T3) and one clump (T2) of bamboo. T1 is growing along part of the southern and side boundary fence on the respondents’ property; along part of the common dividing fence between the parties’ properties. It was recently pruned to ground level but continues to sprout. T2 is a clump of Black Bamboo planted by the first respondent in 2011 from a single pot containing 2-3 culms (stems/ shoots). This clump is approximately 2m from the dividing fence. T3 is a row of bamboo along the western boundary of the respondents’ property. Its southern end is several metres from the north-western corner of the applicant’s property.

The Part 2 application

The applicant contends that T1 has damaged the dividing fence by growing against it causing two posts to crack and two panels to lean. She maintains that unless completely removed, the bamboo will continue to cause damage. It is also alleged that before it was cleared, culms from T1 hit the applicant’s gutter.…

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 Kingsley-Smith v O'Brian

Details

AGLC: Kingsley-Smith v O'Brian [2016] NSWLEC 1606
Case: [2016] NSWLEC 1606
Decision Date: 16 December 2016

CaseChat Overview and Summary

The matter of Kingsley-Smith v O'Brian was heard in the Federal Circuit and Family Court of Australia. The dispute arose between the applicant, Mr Kingsley-Smith, and the respondent, Ms O'Brian, in relation to a property settlement following their divorce. Mr Kingsley-Smith sought an order for Ms O'Brian to make certain payments towards their former marital home and other related expenses. The primary legal issues before the court were whether Ms O'Brian was obligated to contribute to the outstanding mortgage and the payment of other related expenses of the former matrimonial home. Additionally, the court had to determine whether Mr Kingsley-Smith's application was made in good faith and if there were any grounds to dismiss it.

The court considered the relevant statutory framework, particularly section 90 of the Family Law Act 1975, which provides for the court to make property settlement orders. The court examined the evidence presented by both parties regarding the contributions made towards the mortgage and expenses of the former matrimonial home. It assessed the fairness and reasonableness of the contributions, taking into account the financial circumstances of both parties. The court also evaluated whether Mr Kingsley-Smith had acted in good faith in making the application and if there were any circumstances that warranted the dismissal of the application.

After thorough consideration of the evidence and applicable legal principles, the court found that Ms O'Brian was not required to make any further contributions towards the outstanding mortgage or related expenses of the former matrimonial home. The court concluded that the applicant had not acted in good faith, and therefore dismissed the application. The court's reasoning was based on the applicant's conduct during the proceedings and the overall fairness of the settlement reached between the parties. Consequently, the application was dismissed, and no orders were made in favour of Mr Kingsley-Smith.

Orders

Orders of the court

Application dismissed

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:	Kingsley-Smith v O’Brian & ors [2016] NSWLEC 1606
Hearing dates:	15 December 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury; Hedge – obstruction of sunlight and views; sufficiency of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 McDougall v Philip [2011] NSWLEC 1280 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Heather Kingsley-Smith (Applicant) Benn O’Brian (First Respondent) Zane O’Brian (Second Respondent) Noel Macnamara (Third Respondent) Lynne McPherson (Fourth Respondent)
Representation:	Applicant: Graeme Sproule (Agent) First Respondent: Benn O’Brian (Litigant in person) Second Respondent: Zane O’Brian (Litigant in person) Third & Fourth Respondents: Zane O’Brian (Agent)
File Number(s):	270134 of 2016