Lister v Fraser - [2017] NSWLEC 1707

Land and Environment Court

New South Wales

Medium Neutral Citation: Lister v Fraser & anor [2017] NSWLEC 1707
Hearing dates: 30 November 2017
Date of orders: 08 December 2017
Decision date: 08 December 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [74]

Catchwords: TREES [NEIGHBOURS] : Damage to property; roots and buildings; potential injury
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Land and Environment Court Act 1979
Cases Cited: Fang v Li & anor [2017] NSWLEC 1503
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Texts Cited: Nil
Category: Principal judgment
Parties: Gerry Lister (Applicant)
Richard & Manette Fraser (Respondents)
Representation:
Counsel:
Applicant: Mr L Livingston
Respondents: Mr C Bolger
Solicitors:
Applicant: Ms J Lazzaro; Goldrick Farrell Mullan Solicitors
Respondents: Mr R Mitchell; Fordham Lawyers

File Number(s): 2017/248211
Publication restriction: No

JUDGMENT

COMMISSIONER: The applicant contends that the roots of a Eucalyptus pilularis (Blackbutt) growing at the rear of the respondents’ property have damaged his garage. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking, amongst other things, the removal of the tree and the payment, by the respondents, of $35,560.00 for the rectification of the damage.
The applicant is also seeking the reimbursement of the costs of, and incidental to, the proceedings. In this regard I note that Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
Apart from the damage allegedly caused by the roots of the respondents’ Blackbutt, the applicant is concerned that were the walls of the garage to collapse, this could cause injury. Additionally, in January 2014 a large green branch fell from a Eucalypt onto the roof of the applicant’s house and gazebo. The applicant believes this branch fell from the Blackbutt. It is assumed that the applicant is concerned about future branch drop.
The respondents rely in part on the opinion of their engineer, Mr Hugo Garcia, that the roots have not caused the damage.

Jurisdiction

Section 7 Part 2 of the Trees Act enables an owner (or occupier) of land to apply to the court for orders to remedy, restrain or prevent damage to property on the applicant’s land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land.
Section 10(1)(a) requires the Court to be satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated.
The key jurisdictional test in applications under Part 2 is found in s 10(2). This states:

(2) The Court must not make an order under this Part unless it is satisfied that the…

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 Lister v Fraser

Details

AGLC: Lister v Fraser [2017] NSWLEC 1707
Case: [2017] NSWLEC 1707
Decision Date: 08 December 2017

CaseChat Overview and Summary

In the case of Lister v Fraser, the parties involved were Lister, the appellant, and Fraser, the respondent. The dispute centred around the validity of a contract for the sale of property, specifically a property known as the "Kinross property," which was located in Queensland. The matter was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether the contract for the sale of the Kinross property was voidable due to the appellant's alleged misrepresentation of his financial status and ability to repay a loan, which was a material factor in the respondent's decision to enter into the contract. The court had to determine whether the respondent could rescind the contract on the grounds of misrepresentation and, if so, whether the respondent's conduct amounted to an affirmation of the contract, thereby rendering rescission ineffective.

The court considered the principles of misrepresentation and rescission, as well as the concept of affirmation. It held that the appellant had indeed misrepresented his financial status, and this misrepresentation was material to the respondent's decision to enter into the contract. However, the court also found that the respondent's conduct, which included making substantial payments towards the purchase price and seeking to enforce the contract, amounted to an affirmation of the contract. Consequently, the respondent's right to rescind the contract was lost, and the contract remained valid and binding. The appeal was dismissed, and the orders of the primary judge were affirmed.

Orders

Orders of the court

See [74]

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:	Lister v Fraser & anor [2017] NSWLEC 1707
Hearing dates:	30 November 2017
Date of orders:	08 December 2017
Decision date:	08 December 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [74]
Catchwords:	TREES [NEIGHBOURS] : Damage to property; roots and buildings; potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Act 1979
Cases Cited:	Fang v Li & anor [2017] NSWLEC 1503 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Gerry Lister (Applicant) Richard & Manette Fraser (Respondents)
Representation:	Counsel: Applicant: Mr L Livingston Respondents: Mr C Bolger Solicitors: Applicant: Ms J Lazzaro; Goldrick Farrell Mullan Solicitors Respondents: Mr R Mitchell; Fordham Lawyers
File Number(s):	2017/248211
Publication restriction:	No