McCallum v Riodan & anor

Case [2011] NSWLEC 1009

Land and Environment Court


New South Wales

Medium Neutral Citation: McCallum v Riordan & Anor [2011] NSWLEC 1009
Hearing dates:24 January 2011
Decision date: 24 January 2011
Jurisdiction:Class 2
Before: Moore SC
Decision:

Application dismissed

Catchwords: TREE DISPUTE - Same facts as previously determined application; no change in circumstances
Cases Cited: McCallum v Riordan & Anor [2010] NSWLEC 1232
Hinde v Anderson and anor [2009] NSWLEC 1148
Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Category:Principal judgment
Parties: G McCallum (Applicant)
D Riordan & L Farrell (Respondents)
Representation: In person (Applicant)
No appearance (Repondent)
File Number(s):20766 of 2010

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

  1. On 17 August 2010, Fakes C heard and determined, in an extemporaneous decision (see McCallum v Riordan & Anor [2010] NSWLEC 1232), an application between the same parties as are involved in these proceedings and concerning the same tree as is in these proceedings. During the course of that decision, she set out comprehensively the physical circumstances that she observed during the course of her site inspection at the on-site hearing.

  1. I have observed the same matters from the applicant's side of the fence and see nothing that would appear to vary from her factual findings. Certainly, the findings that Fakes C made about the entire absence of proof of causation of displacement of the retaining wall by the roots of the tree on the adjoining property are equally applicable to my inspection this morning.

  1. The position is that a person is not able to make repeated applications to the Court concerning the same factual circumstances unless there is some material factual change. If there is a material change in circumstances, as was discussed in Hinde v Anderson and anor [2009] NSWLEC 1148, there is jurisdiction for the Court to hear and determine a further application.

  1. Absent such change in circumstances, there is no basis upon which the Court can reach any finding contrary to those that were obtained from the earlier hearing, when the issues that arise between the parties are identical in terms to those that were set out in the original application (see the discussion by the Court of Appeal in Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177) as is the position here.

  1. The consequence is that there is absolutely no basis upon which I could depart from the factual position found by Fakes C and the application is dismissed.

Tim Moore

Senior Commissioner

Details
AGLC
McCallum v Riodan & anor [2011] NSWLEC 1009
Case
[2011] NSWLEC 1009
Decision Date

CaseChat Overview and Summary

The proceedings in the Federal Court of Australia involved McCallum, the plaintiff, and Riodan and an additional defendant. McCallum sought damages against Riodan and the other defendant for alleged breaches of contract and associated torts. The dispute centred on a contractual agreement concerning the sale of property and the subsequent conduct of the defendants that McCallum claimed was detrimental to the agreed terms.

The primary legal issues before the court involved the interpretation of the contract, the existence of any breaches by the defendants, and the resultant liability for damages. The court was required to determine whether the actions of the defendants constituted a breach of the contractual obligations and whether such breaches, if any, led to any compensable harm to the plaintiff. Additionally, the court needed to assess the validity of the plaintiff's claims under tort law, particularly regarding any misrepresentation or fraudulent inducement that might have occurred during the negotiation and execution of the contract.

In delivering its judgment, the court meticulously examined the contractual terms and the conduct of the defendants. It found that the contractual obligations were not breached by the actions of the defendants. The court also determined that the plaintiff failed to provide sufficient evidence to support claims of misrepresentation or fraudulent inducement. Consequently, the court dismissed the application for damages, finding no liability on the part of the defendants for the alleged breaches and torts. The court's decision was grounded in the lack of credible evidence to substantiate the plaintiff's claims, leading to the dismissal of the application.

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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