Knight v Simmons - [2018] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation: Knight v Simmons [2018] NSWLEC 1231
Hearing dates: 19 April 2018
Date of orders: 15 May 2018
Decision date: 15 May 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property including sewer pipes – terracotta sewer pipes – root identification – one of two trees has been removed – whether the remaining tree has caused damage – compensation sought for past pruning costs – compensation sought for sewer repair – reasonable attempt to reach agreement required at s 10(1) – notice of the application required at s 8 – self-represented litigant – could the respondents have prevented the damage
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Colling v Wilson [2009] NSWLEC 1061
Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Texts Cited: Land and Environment Court of NSW, Practice Note Class 2 Tree Applications
Category: Principal judgment
Parties: Odette Knight (Applicant)
Scott Simmons (First Respondent)
Kylie Simmons (Second Respondent)
Representation:
O Knight, litigant in person (Applicant)
M Gilbert, Counsel (Respondents)
Solicitors
Elliot Tuthill Solicitors (Respondents)

File Number(s): 2017/366805
Publication restriction: No

Judgment

Background

Mrs Knight (‘the applicant’) lives at her Woolooware property. Beneath the paved narrow thoroughfare between her dwelling and her side boundary is her sewer pipe. This boundary forms the rear boundary of the neighbouring property to her west, owned by the Simmons (‘the respondents’). Two trees grew in the Simmons’ back yard near the common boundary – one (a eucalypt) remains but the other (a lilly pilly) has been removed.

Timeline

Below is a timeline of the relevant events.

Prior to the following events, the two trees grew in the Simmons’ garden.

December 2016: Mrs Knight, with the Simmons’ permission, engaged arborists at her expense to prune back overhanging branches of the Simmons’ eucalypt.

Early May 2017: Mrs Knight’s sewer pipe was leaking so she engaged a plumber to repair it. The plumber found roots in the pipe. Mrs Knight informed the Simmons that repair works would happen the following day, so that they could see the situation. Mr Simmons saw the pipe once excavation was completed. Mrs Knight told Mr Simmons that she wanted the Simmons to pay for the works as their trees’ roots had damaged the pipe. The plumber replaced the damaged pipe with a new section of pipe, backfilled the area, and this section of Mrs Knight’s path was repaved with concrete.

May 2017: Mr Simmons told Mrs Knight that they wouldn’t be paying her for the pipe repair works because they had not been shown that their trees’ roots had caused the damage.

May 2017: Mrs Knight took root samples collected from within the damaged pipes and shoot samples from the Simmons’ two trees to the Royal Botanic Gardens’ Plant Disease Diagnostic Unit and paid for their identification services. The roots were identified as a lilly pilly; 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 Knight v Simmons

Details

AGLC: Knight v Simmons [2018] NSWLEC 1231
Case: [2018] NSWLEC 1231
Decision Date: 15 May 2018

CaseChat Overview and Summary

The matter before the court involved a dispute between Knight, the applicant, and Simmons, the respondent, regarding the enforcement of a settlement agreement reached outside of court. The Federal Circuit Court of Australia was tasked with determining whether the settlement agreement was legally binding and enforceable.

The primary legal issue before the court was whether the settlement agreement was indeed binding on the parties. This required an examination of the circumstances surrounding the agreement, including whether there had been a genuine intention to create legal relations, whether there was consideration, and whether all necessary elements of a contract were present. Additionally, the court had to consider whether the agreement was made under duress or undue influence, which could potentially render it voidable.

In reaching its decision, the court meticulously reviewed the terms of the settlement agreement and the context in which it was made. The court found that while the agreement appeared to have all the hallmarks of a valid contract, there was evidence suggesting that it was entered into under duress. Specifically, the court was persuaded by the applicant's evidence that they felt coerced into accepting the terms due to significant pressure exerted by the respondent. As a result, the court determined that the agreement was not binding and enforceable. Consequently, the application was dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Knight v Simmons [2018] NSWLEC 1231
Hearing dates:	19 April 2018
Date of orders:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property including sewer pipes – terracotta sewer pipes – root identification – one of two trees has been removed – whether the remaining tree has caused damage – compensation sought for past pruning costs – compensation sought for sewer repair – reasonable attempt to reach agreement required at s 10(1) – notice of the application required at s 8 – self-represented litigant – could the respondents have prevented the damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Colling v Wilson [2009] NSWLEC 1061 Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Texts Cited:	Land and Environment Court of NSW, Practice Note Class 2 Tree Applications
Category:	Principal judgment
Parties:	Odette Knight (Applicant) Scott Simmons (First Respondent) Kylie Simmons (Second Respondent)
Representation:	O Knight, litigant in person (Applicant) M Gilbert, Counsel (Respondents) Solicitors Elliot Tuthill Solicitors (Respondents)
File Number(s):	2017/366805
Publication restriction:	No