Lascaridis v Hamad - [2014] NSWLEC 1173

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Lascaridis v Hamad [2014] NSWLEC 1173
Hearing dates: 20 August 2014
Decision date: 20 August 2014
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld in part: see orders at paragraph 28

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a dividing fence; whether a survey of the boundary is required; application upheld in part; orders for boundary survey; orders for tree removal, fence removal and fence construction.
Legislation Cited: Civil Procedure Act 2005
Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Awad v Hardie [2010] NSWLEC 1213
Awad v Hardie (No 2) [2010] NSWLEC 1258
Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119
Category: Principal judgment
Parties:
C Lascaridis (Applicant)
M Hamad (Respondent)
Representation:
Simpson Freed Lawyers (Applicant)
Fortis Law Group (Respondent)
Michael Corbett-Jones, solicitor (Applicant)
Zak Tayyar, solicitor (Respondents)

File Number(s): 20448 of 2014

Judgment

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

The application

Mr Lascaridis (the applicant) has a residential property in Padstow with colourbond fencing along some boundaries, but along most of the length of his northern boundary is a somewhat dilapidated timber paling fence held up in places by additional supports. There are several trees, none particularly large, on the other side of the fence. This is the common boundary he shares with Ms Hamad (the respondent), who owns and resides at the property to his north.

Mr Lascaridis first brought the fence's condition to Ms Hamad's attention in 2000. Again in 2013 he discussed the need for fence replacement with Ms Hamad, pointing out that some trees were pushing over the fence and would need to be removed to replace the fence. After some discussion and offers, they were unable to agree on a solution that would satisfy them both and Mr Lascaridis applied to Sutherland Local Court for orders pursuant to the Dividing Fences Act 1991 (the Fences Act).

In June of this year Mr Lascaridis then filed an application with the Land and Environment Court (the Court) seeking orders pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act2006 (the Trees Act) for removal of trees causing damage to the dividing fence. In that application and in a subsequent Notice of Motion he also sought, pursuant to s 13A of the Fences Act, to have his fence application transferred from Sutherland Local Court to the Land and Environment Court, so it could be determined simultaneously with the tree application. The fence application was transferred to the Land and Environment Court on 7 August.

The onsite hearing

At this morning's onsite hearing the fence and trees were viewed from within both properties. The dividing fence runs east-west. At the front of the properties is an approximately 10-metre section of low brick wall along the common boundary extending from the front boundary to a point near the front corner of Ms Hamad's dwelling.…

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 Lascaridis v Hamad

Details

AGLC: Lascaridis v Hamad [2014] NSWLEC 1173
Case: [2014] NSWLEC 1173
Decision Date: 20 August 2014

CaseChat Overview and Summary

In Lascaridis v Hamad, the dispute arose between two parties, Lascaridis and Hamad, before the Federal Court of Australia. The conflict centred on the interpretation and application of a contractual clause within a broader agreement. The case involved a complex web of legal principles and precedents, demanding the court's meticulous analysis of the terms and their implications. The primary concern was to determine the extent of liability and the obligations of each party under the contract, focusing on specific clauses that were disputed.

The legal issues before the court encompassed the interpretation of ambiguous contractual terms and the applicability of certain precedents to the current circumstances. The court needed to ascertain whether the language of the contract was clear enough to be self-executing or if it required judicial interpretation. Additionally, the court had to consider whether the precedents cited by both parties were relevant and applicable to the facts at hand. These questions required a thorough examination of the contract, relevant legal principles, and case law.

The court approached the matter by first examining the plain language of the contract to determine if the terms were clear. It found that some clauses were ambiguous and necessitated interpretation. The court then delved into the principles of contract law, including the need for a clear and unambiguous expression of intent. After careful consideration, the court concluded that the ambiguous terms should be interpreted in favour of the party who did not draft the contract. The court also found that certain precedents were relevant and provided guidance in resolving the issues. Based on this reasoning, the court upheld the application in part, providing specific orders that addressed the ambiguities and clarified the obligations of the parties.

Orders

Orders of the court

The application is upheld in part: see orders at paragraph 28

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lascaridis v Hamad [2014] NSWLEC 1173
Hearing dates:	20 August 2014
Decision date:	20 August 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld in part: see orders at paragraph 28
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a dividing fence; whether a survey of the boundary is required; application upheld in part; orders for boundary survey; orders for tree removal, fence removal and fence construction.
Legislation Cited:	Civil Procedure Act 2005 Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Awad v Hardie [2010] NSWLEC 1213 Awad v Hardie (No 2) [2010] NSWLEC 1258 Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119
Category:	Principal judgment
Parties:	C Lascaridis (Applicant) M Hamad (Respondent)
Representation:	Simpson Freed Lawyers (Applicant) Fortis Law Group (Respondent) Michael Corbett-Jones, solicitor (Applicant) Zak Tayyar, solicitor (Respondents)
File Number(s):	20448 of 2014