Lazenby v Bergquist - [2014] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation: Lazenby & ors v Bergquist [2014] NSWLEC 1147
Hearing dates: 23 July 2014
Decision date: 23 July 2014
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; bamboo; damage; no evidence of damage; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2014
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
Tooth v McCombie [2011] NSWLEC 1004
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties:
APPLICANTS
Keith Lazenby (first applicant)
Brian Lazenby (second applicant)
Barbara Cook (third applicant)
RESPONDENTS
Mark Bergquist (first respondent)
Constance Bergquist (second respondent)
Representation:
APPLICANTS
Brian Lazenby (Litigant in person)
Barbara Cook (Litigant in person)
RESPONDENTS
No appearance

File Number(s): 20213 of 2014

Judgment

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

The application

Three siblings, Messrs. Lazenby and Ms Cook ("the applicants"), own a dwelling in a residential Murwillumbah street. The second applicant lives at the dwelling. Until recently a tall clump of bamboo grew on the neighbouring property, owned by the Bergquists ("the respondents"). The applicants became concerned that the bamboo was blocking sunlight to, and views from, their dwelling. They were also concerned that roots of the bamboo may interfere with and damage their sewer pipes. They originally applied to the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders from the bamboo's removal. Part 2A of the Act gives the Court jurisdiction to deal with the obstruction of sunlight and views caused by neighbouring hedges.

Prior to the matter being heard, the respondents cut the bamboo almost to ground level. Any obstruction of sunlight or views must be assessed at the time of the hearing (see Tooth v McCombie [2011] NSWLEC 1004), so this prevented the applicants pressing this part of their application. As their concerns about the possibility of roots damaging their sewer remained, they amended their application seeking orders pursuant to Part 2 of the Act, on the grounds that roots of the neighbouring tree (bamboo) are likely to cause damage in future. They want the respondents to also remove the underground parts of the bamboo. The applicants have limited access to legal advice.

The respondents' position regarding this issue is unknown. They did not file any material with the Court prior to the hearing. This morning, Mrs Bergquist was busy in her role at a childcare centre that operates on their property. At the prescribed time for the hearing she said her husband was on his way but was stuck in traffic and would be about ten minutes. It was 10:30 in the morning in Murwillumbah. The hearing began fifteen minutes later with no appearance from the respondents.

The tree

The applicants pointed out the remains of the bamboo. It has been cut to a little above ground level, leaving a large…

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 Lazenby v Bergquist

Details

AGLC: Lazenby v Bergquist [2014] NSWLEC 1147
Case: [2014] NSWLEC 1147
Decision Date: 23 July 2014

CaseChat Overview and Summary

The case of Lazenby v Bergquist was heard in the Supreme Court of Queensland. The dispute between the parties centred around the interpretation of a contract between the two parties, specifically a clause relating to the sale of property. The primary issue was whether the clause was ambiguous and, if so, how it should be interpreted. The applicant, Lazenby, argued that the clause was ambiguous and sought an order to have it interpreted in a way that favoured their position. The respondent, Bergquist, contended that the clause was clear and unambiguous and sought to enforce it as written.

The court was required to determine the meaning of the clause in question and whether it was ambiguous. The court considered the language of the clause, the surrounding circumstances of the agreement, and the intentions of the parties at the time of the contract. The court held that the clause was not ambiguous and that it should be interpreted according to its plain meaning. The court found that the intentions of the parties were clearly set out in the contract and that there was no room for any other interpretation.

The court dismissed the application brought by Lazenby, finding that the clause was not ambiguous and that it should be enforced as written. The court held that the respondent, Bergquist, was entitled to rely on the terms of the contract as they were set out. The court found that Lazenby's argument that the clause was ambiguous was without merit and that there was no basis for the court to intervene in the enforcement of the contract. The court dismissed the application and ordered that the respondent's costs be paid by the applicant.

Orders

Orders of the court

The application is 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:	Lazenby & ors v Bergquist [2014] NSWLEC 1147
Hearing dates:	23 July 2014
Decision date:	23 July 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; bamboo; damage; no evidence of damage; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2014
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	APPLICANTS Keith Lazenby (first applicant) Brian Lazenby (second applicant) Barbara Cook (third applicant) RESPONDENTS Mark Bergquist (first respondent) Constance Bergquist (second respondent)
Representation:	APPLICANTS Brian Lazenby (Litigant in person) Barbara Cook (Litigant in person) RESPONDENTS No appearance
File Number(s):	20213 of 2014