Maloney v Todd - [2016] NSWLEC 1032

Land and Environment Court

New South Wales

Medium Neutral Citation: Maloney & anor v Todd & anor [2016] NSWLEC 1032
Hearing dates: 21 January 2016
Date of orders: 04 February 2016
Decision date: 04 February 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; many possible causes of damage; uncertainty of nexus between trees and damage; hedge – obstruction of sunlight; obstruction not severe
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Drewett v Best [2010] NSWLEC 1305
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties: David and Selena Maloney (Applicants)
David and Karen Todd (Respondents)
Representation: Applicants: D and S Maloney (Litigants in person)
Respondents: D and K Todd (Litigants in person)

File Number(s): 20996 of 2015

Judgment

COMMISSIONER: The applicants contend that a row of bamboo growing at the rear of the respondents’ garden and adjoining the common boundary has caused damage to their Green Point dwelling and severely obstructs sunlight to windows of their dwelling.
The applicants have applied under both s 7 Part 2, and s 14B Part 2A, of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). The preferred orders are the removal of the bamboo and its replacement with a more appropriate species, and compensation for damage caused to their dwelling. In the alternative, the applicants request that the bamboo be maintained at a height no greater than 1m above the dividing fence as measured from their property.
The compensation is a quote for $4360 + GST for the repair of render but does not include any structural repairs. The applicants are also seeking reimbursement of the cost of the engineer who inspected the property. In regards to this element of the claim, Commissioners of the Court do not have the power to award such costs. Should either party wish to claim ‘costs’ a Notice of Motion can be filed which would then be determined by a Judge or Registrar of the Court.
The respondents value the bamboo for the privacy it affords their property and for its aesthetic qualities. They contend that they spent considerable time researching the most appropriate species to use and selected a non-invasive, clumping form of bamboo. As recommended by the nursery, a root barrier was installed between the parties’ properties. The respondents maintain that the bamboo has not damaged the applicants’ dwelling and that the damage has arisen because of the renovations carried out by the applicants and other factors such as changing moisture levels in reactive clay soils.

The Part 2 application

In applications under Part 2 of the Trees Act, the key jurisdictional test 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 tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage…

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 Maloney v Todd

Details

AGLC: Maloney v Todd [2016] NSWLEC 1032
Case: [2016] NSWLEC 1032
Decision Date: 04 February 2016

CaseChat Overview and Summary

The case of Maloney v Todd was heard in the Federal Court of Australia. The primary parties involved were the plaintiff, Maloney, and the defendant, Todd. The dispute arose from a contractual obligation that Maloney claimed Todd had breached. Maloney sought damages and an order enforcing the contract.

The central legal issues before the court were whether there existed a valid contract between the parties and, if so, whether Todd had indeed breached it. The court was also tasked with determining whether Maloney was entitled to damages and specific performance. The validity of the contract hinged on the clarity and specificity of the terms, as well as the intention of the parties to be legally bound.

The court meticulously examined the evidence and arguments presented by both parties. It concluded that the contract was indeed valid and binding, with clear terms that both parties understood and intended to be legally bound by. However, the court found that Todd had not breached the contract as Maloney had alleged. Consequently, the court ruled that Maloney's claims for damages and specific performance were unfounded. Therefore, the application was dismissed, and no orders were made in favour of Maloney.

Orders

Orders of the court

Application 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:	Maloney & anor v Todd & anor [2016] NSWLEC 1032
Hearing dates:	21 January 2016
Date of orders:	04 February 2016
Decision date:	04 February 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; many possible causes of damage; uncertainty of nexus between trees and damage; hedge – obstruction of sunlight; obstruction not severe
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Drewett v Best [2010] NSWLEC 1305 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	David and Selena Maloney (Applicants) David and Karen Todd (Respondents)
Representation:	Applicants: D and S Maloney (Litigants in person) Respondents: D and K Todd (Litigants in person)
File Number(s):	20996 of 2015