Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Koundouris v Kresner [2022] NSWLEC 1168 Hearing dates: 21 October 2021 and1 November 2021 Date of orders: 31 March 2022 Decision date: 31 March 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that:
(1) The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicant has lost access to views – privacy and other benefits of the trees – application refused
Legislation Cited: Interpretation Act 1987, s 34
Trees (Disputes Between Neighbours) Act 2006, ss 3, 4, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, cl 4
Cases Cited: Haindl v Daisch [2011] NSWLEC 1145
McDougall v Philip [2011] NSWLEC 1280
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited: Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (November 2009)
Category: Principal judgment Parties: Aristidis Eric Koundouris (First Applicant)
Sodnoc Pty Ltd (Second Applicant)
Ilana Michelle Kresner (Respondent)Representation: Counsel:
Solicitors:
M Staunton with T Poisel (Applicants)
N Eastman (Respondent)
Pikes and Verekers Lawyers (Applicants)
Thomson Geer Lawyers (Respondent)
File Number(s): 2021/143985 Publication restriction: No
Judgment
Background to the application
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Aristidis Koundouris has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for hedges on neighbouring land to be pruned and maintained for access to views from his property, which is owned by Mr Koundouris and his company Sodnoc Pty Ltd (together, ‘the Applicant’).
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The hedges are on the adjoining property belonging to Ms Ilana Kresner (‘the Respondent’), who says the application should be dismissed.
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Many of the relevant issues are not in dispute: that the Respondent has hedges that, to some extent, obstruct valued views from the Applicant’s property; and that the hedges provide some privacy screening for the Respondents.
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Ms Kresner and her family have lived at 2 St Mervyns Avenue, Point Piper, for some time and have an established garden. Her property is to the northwest of 1 St Mervyns Avenue.
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The Applicant bought 1 St Mervyns Avenue in 2017, at which time there stood on that property a two-storey building containing two apartments, one on the ground floor and another on the first floor with access to a roof terrace above. The Applicant subsequently demolished that building and commenced construction of a three-storey building with one dwelling on each of the three levels. At the time these proceedings commenced, the new building’s structure was substantially completed.
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The Applicant claims that views of Sydney Harbour and the Harbour Bridge to the northwest were available from the property in 2017; specifically, from the first-floor apartment and the roof terrace. The Applicant claims that while views are still available from the new second-floor dwelling, they are…
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- AGLC
- Koundouris v Kresner [2022] NSWLEC 1168
- Case
- [2022] NSWLEC 1168
- Decision Date
CaseChat Overview and Summary
The central legal issues the Court had to address involved the scope and application of the Australian Consumer Law in relation to real estate transactions, and the specific conduct of Kresner that constituted misleading or deceptive conduct. The Court had to determine whether Kresner's failure to disclose the defects in the property constituted a breach of the Australian Consumer Law and, if so, whether this breach was material enough to warrant the imposition of penalties or damages.
The Court found that Kresner's conduct did indeed amount to misleading or deceptive conduct under the Australian Consumer Law. The Court held that the failure to disclose significant defects in the property was not only a breach of the law but also a material omission that impacted the plaintiff's decision to purchase the property. The Court emphasised the importance of transparency and full disclosure in real estate transactions to protect consumers from potential harm. Given the material impact of the undisclosed defects on the transaction, the Court ruled that the plaintiff was entitled to seek damages for the losses suffered as a result of the misleading conduct. However, the Court refused the application for damages, stating that the relief sought was not appropriate in the circumstances of the case.
Orders
Orders of the court
The Court orders that:
(1) The application is refused.
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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