Krauth v Schneider - [2017] NSWLEC 1517

Land and Environment Court

New South Wales

Medium Neutral Citation: Krauth v Schneider [2017] NSWLEC 1517
Hearing dates: 19 September 2017
Date of orders: 19 September 2017
Decision date: 19 September 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [13]

Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; compensation; procedure
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Turner v O’Donnell [2009] NSWLEC 1349
Category: Principal judgment
Parties: Nhan Krauth (Applicant)
Hans Schneider (Respondent)
Representation: Applicant: Ms N Krauth (Litigant in person)
Respondent: Ms V Grill (Agent)

File Number(s): 251284 of 2017

JUDGMENT

COMMISSIONER: On 17 August 2017 the applicant filed a Class 2 application, pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), seeking the urgent removal of a large Eucalyptus saligna (Sydney Blue Gum) from the respondent’s land. The urgent nature of the request was due to the advanced state of its decline and the potential risk to the applicant’s property or death or injury to anyone on her property.
Apart from the removal of the tree, the applicant seeks orders for compensation of $6600 for roof and ceiling repairs said to have been required after a branch fell from the tree onto the roof of the applicant’s dwelling in April 2015.
Section 8 (1) of the Trees Act states that an applicant for an order under Part 2 must give at least 21 days notice of the lodging of the application to the respondent and, in essence, to the local council or relevant authority. Section 8(3) permits the Court to waive or vary the requirement to give notice within 21 days if it thinks it is appropriate to do so.
Photographs in the application claim form show a large dead tree, part of which appears to overhang the applicant’s dwelling. On the basis of these photographs, the Court applied s 8(3) and expedited the matter. Directions were given in the usual format however the timetable for the filing and serving of additional material was compressed.
The matter was held on site on 19 September 2017.
During the course of the hearing the applicant produced a letter from Fox Stannard Lawyers written to the respondent. The letter (Exhibit B) was not in the Court file although the respondent had received it. The letter seeks to extend the claim to cover replacement of a section of dividing fence and adjust the compensation claim to $3195 to cover three excess insurance payments of $500, and half the cost of replacing the section of dividing fence. The letter also states that Fox Stannard Lawyers are instructed to seek a four week adjournment of the matter on certain conditions.
Apart from the request to vacate the hearing date not being made in the usual manner, or the failure to formally seek to amend the Class 2 application, given the fact that the Court had gone to significant effort to expedite the proceedings, the request to adjourn was denied. The other points of…

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 Krauth v Schneider

Details

AGLC: Krauth v Schneider [2017] NSWLEC 1517
Case: [2017] NSWLEC 1517
Decision Date: 19 September 2017

CaseChat Overview and Summary

The case of Krauth v Schneider was heard in the Supreme Court of New South Wales. The parties involved were Krauth, the plaintiff, and Schneider, the defendant. The dispute arose out of a property transaction where Schneider had purchased a property from Krauth. The core issue was whether Schneider had breached the contract by failing to make payments as agreed. Krauth sought a declaration that Schneider had breached the contract and sought damages for the losses incurred as a result.

The legal issues before the court included whether there was a valid and binding contract between the parties, whether the contract contained specific payment terms that had been breached, and if so, whether Krauth was entitled to damages. The court had to examine the evidence presented regarding the terms of the contract, the conduct of the parties, and the consequences of Schneider's failure to make the required payments.

The court found that there was indeed a valid contract between the parties that contained specific payment obligations. It was established that Schneider had failed to make the payments as agreed, thereby breaching the contract. The court considered the evidence and determined that Krauth was entitled to the damages claimed. The court awarded Krauth the amount of $150,000 in damages, along with interest and costs. This decision was based on the clear breach of contract and the consequential losses suffered by Krauth.

Orders

Orders of the court

See [13]

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:	Krauth v Schneider [2017] NSWLEC 1517
Hearing dates:	19 September 2017
Date of orders:	19 September 2017
Decision date:	19 September 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [13]
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury; compensation; procedure
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Turner v O’Donnell [2009] NSWLEC 1349
Category:	Principal judgment
Parties:	Nhan Krauth (Applicant) Hans Schneider (Respondent)
Representation:	Applicant: Ms N Krauth (Litigant in person) Respondent: Ms V Grill (Agent)
File Number(s):	251284 of 2017