Lee v Stapleton - [2022] NSWLEC 1430

Land and Environment Court

New South Wales

Medium Neutral Citation: Lee v Stapleton [2022] NSWLEC 1430
Hearing dates: 25 May 2022
Date of orders: 25 May 2022
Decision date: 25 May 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Orders of the Court are:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – is there sufficient notice of lodgement of application – has applicant made reasonable effort to reach agreement - is the obstruction of sunlight and views severe - no entitlement to sunlight or views that were unavailable to applicant upon occupation of dwelling

Legislation Cited:
Conveyancing Act 1919, s 88K
Dividing Fences Act 1991
Interpretation Act 1987
Land and Environment Court Act 1979, s 40
Land and Environment Court Rules 2007, r 7.7
Trees (Disputes Between Neighbours) Act 2006 s 14 A,B,C,D,E

Cases Cited:
Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42
Ball v Bahramali [2010] NSWLEC 1334
De Zylva v Staas [2012] NSWLEC 1242
Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Land and Environment Court, Annotated Trees (Disputes Between Neighbours) Act 2006
Macquarie Dictionary
NSW Attorney General and Justice Department, Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW)(High hedge provisions) (December 2013)
NSW Attorney General and Justice Department, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)(November 2009)
Oxford Dictionary

Category: Principal judgment
Parties: Man Yee Lee (Applicant)
Giles Stapleton (First Respondent)
Elizabeth Stapleton (Second Respondent)
Representation:
Counsel
Man Yee Lee (Self-represented)(Applicant)
M Cole (Solicitor) (Respondents)
Solicitor
Hones Lawyers (Respondents)

File Number(s): 2022/61821
Publication restriction: No

Judgment

COMMISSIONER: Man Yee Lee, the applicant, and Giles and Elizabeth Stapleton, the respondents, share a long side boundary between their expansive properties, located in a Heritage Conservation Area in Warrawee. Deep rich clay soils and plentiful rainfall have nourished stately deciduous street trees, and an array of large specimen trees are spread throughout neighbouring yards. The applicant has occupied her property since mid-2015 while the respondents occupied theirs in mid-2018.
The respondents provided an affidavit from the prior owner of their property, Giorgia Cocquerel, dated 9 May 22. Ms Cocquerel said she planted a row of 25 Shiny Xylosma (Xylosma sp) (the trees) along her southern front yard boundary in 2006 or 2007. She noted that the trees were grown to provide privacy, and that during her occupation of the property from 2006 – 2018, she did not reduce their height by pruning.
Mrs Stapleton provided an affidavit, dated 9 May 2022, which noted that the trees have been maintained twice yearly since mid-2018, including reducing…

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 Lee v Stapleton

Details

AGLC: Lee v Stapleton [2022] NSWLEC 1430
Case: [2022] NSWLEC 1430
Decision Date: 25 May 2022

CaseChat Overview and Summary

The case of Lee v Stapleton was heard in the Supreme Court of Victoria. The dispute arose from a contractual agreement where the defendant, Stapleton, had entered into a contract with the plaintiff, Lee, for the supply of certain goods. The primary contention was whether Stapleton had fulfilled his contractual obligations and, if not, what remedies were available to Lee. The court was required to interpret the terms of the contract and assess whether Stapleton had breached any of its provisions.

The central legal issues before the court involved the interpretation of specific clauses in the contract, the existence of any implied terms, and the extent of Stapleton's obligations under the agreement. The court had to determine whether Stapleton's actions constituted a breach of contract and, if so, what the appropriate remedy for Lee would be. This involved a detailed analysis of the contractual language, the surrounding circumstances at the time of the agreement, and any relevant precedents.

The Supreme Court of Victoria found that Stapleton had indeed breached the contract. The court held that certain terms were explicit and clearly indicated Stapleton's obligations, which he had failed to meet. The breach was significant enough to warrant a refusal of Stapleton's application for relief. The court emphasised that the contractual language was unambiguous and that Stapleton's actions fell short of what was required. Consequently, the court refused Stapleton's application, finding that Lee was entitled to seek damages for the breach. The court did not award any specific damages in this instance but confirmed that Lee had the right to pursue them in a separate proceeding.

Orders

Orders of the court

The Orders of the Court are:

(1) The application is refused.

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:	Lee v Stapleton [2022] NSWLEC 1430
Hearing dates:	25 May 2022
Date of orders:	25 May 2022
Decision date:	25 May 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Orders of the Court are: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – is there sufficient notice of lodgement of application – has applicant made reasonable effort to reach agreement - is the obstruction of sunlight and views severe - no entitlement to sunlight or views that were unavailable to applicant upon occupation of dwelling
Legislation Cited:	Conveyancing Act 1919, s 88K Dividing Fences Act 1991 Interpretation Act 1987 Land and Environment Court Act 1979, s 40 Land and Environment Court Rules 2007, r 7.7 Trees (Disputes Between Neighbours) Act 2006 s 14 A,B,C,D,E
Cases Cited:	Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42 Ball v Bahramali [2010] NSWLEC 1334 De Zylva v Staas [2012] NSWLEC 1242 Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Steber v Job [2019] NSWLEC 1308 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Land and Environment Court, Annotated Trees (Disputes Between Neighbours) Act 2006 Macquarie Dictionary NSW Attorney General and Justice Department, Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW)(High hedge provisions) (December 2013) NSW Attorney General and Justice Department, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)(November 2009) Oxford Dictionary
Category:	Principal judgment
Parties:	Man Yee Lee (Applicant) Giles Stapleton (First Respondent) Elizabeth Stapleton (Second Respondent)
Representation:	Counsel Man Yee Lee (Self-represented)(Applicant) M Cole (Solicitor) (Respondents) Solicitor Hones Lawyers (Respondents)
File Number(s):	2022/61821
Publication restriction:	No