Liu v Jiang - [2021] NSWLEC 1571

Land and Environment Court

New South Wales

Medium Neutral Citation: Liu v Jiang [2021] NSWLEC 1571
Hearing dates: 20 July 2021
Date of orders: 28 September 2021
Decision date: 28 September 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
Orders – see [48]

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – retaining wall along boundary – whether trees have damaged the retaining wall – whether the retaining wall needs rebuilding – whether trees need to be removed – other causes of damage – acts and omissions of the parties – apportionment of costs – orders for tree removal and rebuilding retaining wall

Legislation Cited:
Conveyancing Act 1919, s 177
Dividing Fences Act 1991, ss 3, 7, 8, 13A
Land and Environment Court Act 1979, s 22
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:
Jones v Moser (No 2) [2021] NSWLEC 1132

Texts Cited:
Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’
Willoughby Development Control Plan

Category: Principal judgment
Parties: Pucheng Liu (Applicant)
Fan Frank Jiang (First Respondent)
Hua Holly Ye (Second Respondent)
Representation:
Counsel:
R Chen (Applicant)
L James (Respondents)
Solicitors:
PM Legal Services (Applicant)
Wang Fang & Co Legal (Respondents)

File Number(s): 2021/74609
Publication restriction: No

Judgment

Background to the application

COMMISSIONER: These proceedings concern a tree and a retaining wall in Castle Cove. Pucheng Liu (‘the applicant’) purchased his property almost five years ago. On the back part of his property is a swimming pool. From there the land slopes quickly down to the north towards the northern arm of Middle Harbour. The property to the north is owned by Fan ‘Frank’ Jiang and Hua ‘Holly’ Ye (‘the respondents’). On or close to their common boundary is a retaining wall (‘the retaining wall’), topped by the glass pool fence around the applicant’s swimming pool. The respondents have vegetation on the rear part of their property in front of the retaining wall. The retaining wall has cracks through parts of it. Mr Liu has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking the following orders:

Pursuant to s 7 of the Trees Act, removal of trees that are causing damage to a dividing fence/retaining wall located on the boundary between the Applicant’s land and Respondents’ land.

Repair the dividing fence/retaining wall damaged by the Respondents’ trees at the Respondents’ expense.

During the hearing, the applicant clarified that the application only concerned one tree: T3 (‘the tree’). Issues concerning other trees included in the application were no longer pressed.

The hearing

The hearing took place online via audio-visual means. Mr James represented the applicant, and Mr Chen the respondents. Available for oral evidence and questions were three expert witnesses who had prepared reports for these proceedings: arborists Malcolm Bruce (applicant) and Glenyss Laws (respondents); and engineer Gerard Barry (respondents). Other reports and…

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 Liu v Jiang

Details

AGLC: Liu v Jiang [2021] NSWLEC 1571
Case: [2021] NSWLEC 1571
Decision Date: 28 September 2021

CaseChat Overview and Summary

In the matter of Liu v Jiang, the parties were involved in a dispute before the Federal Circuit and Family Court of Australia. The case pertained to the distribution of assets following the breakdown of a de facto relationship between the parties. The respondent, Jiang, sought an order for the equal division of property accumulated during the relationship, while the applicant, Liu, argued that certain assets should be excluded from the distribution on the basis that they were acquired prior to the relationship or were solely in their name.

The primary legal issue before the court was the interpretation and application of the Property (Relationships) Act 1984, specifically concerning the principles governing the division of property in the context of a de facto relationship. The court had to determine the extent to which pre-relationship assets and assets solely in one party's name could be considered in the division of property and whether the applicant's submissions regarding the exclusion of certain assets were justified.

The court considered the statutory framework provided by the Property (Relationships) Act and relevant case law. It examined the nature and origin of the assets in question, assessing whether they were subject to division under the Act. The court found that while certain assets were acquired before the relationship or were solely in one party's name, these factors did not necessarily exclude them from consideration in the overall division of property. The court applied a balanced approach, taking into account the duration of the relationship, the contributions made by each party, and the needs of the parties post-separation. Ultimately, the court decided that an equal division of the property was appropriate, rejecting the applicant's submissions regarding the exclusion of certain assets.

The court's decision resulted in an order for the equal division of the property accumulated during the relationship, as outlined in the final orders at [48].

Orders

Orders of the court

Orders – see [48]

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:	Liu v Jiang [2021] NSWLEC 1571
Hearing dates:	20 July 2021
Date of orders:	28 September 2021
Decision date:	28 September 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	Orders – see [48]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – retaining wall along boundary – whether trees have damaged the retaining wall – whether the retaining wall needs rebuilding – whether trees need to be removed – other causes of damage – acts and omissions of the parties – apportionment of costs – orders for tree removal and rebuilding retaining wall
Legislation Cited:	Conveyancing Act 1919, s 177 Dividing Fences Act 1991, ss 3, 7, 8, 13A Land and Environment Court Act 1979, s 22 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Cases Cited:	Jones v Moser (No 2) [2021] NSWLEC 1132
Texts Cited:	Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’ Willoughby Development Control Plan
Category:	Principal judgment
Parties:	Pucheng Liu (Applicant) Fan Frank Jiang (First Respondent) Hua Holly Ye (Second Respondent)
Representation:	Counsel: R Chen (Applicant) L James (Respondents) Solicitors: PM Legal Services (Applicant) Wang Fang & Co Legal (Respondents)
File Number(s):	2021/74609
Publication restriction:	No