McGee v Qiu - [2016] NSWLEC 1117

Land and Environment Court

New South Wales

Medium Neutral Citation: McGee & anor v Qiu & anor [2016] NSWLEC 1117
Hearing dates: 1 April 2016
Date of orders: 01 April 2016
Decision date: 01 April 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application granted in part

Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; brick retaining wall; tree approved for removal by council; apportionment of compensation.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Cincotta v Huang & ors [2011] NSWLEC 1086
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Thornberry & anor v Packer & anor [2010] NSWLEC 1069
Category: Principal judgment
Parties: Robin and Jannice McGee (Applicants)
Tao Qiu and Jing Liu (Respondents)
Representation:
Applicants: Mr D Loether (Solicitor)
Respondents: Ms M Woo (Agent)
Solicitors:
Applicants: Bartier Perry

File Number(s): 20140 of 2016

Judgment

COMMISSIONER: In 1981 the applicants constructed a retaining wall along the rear boundaries of their Mosman property. The wall is built from sandstock bricks, circa 1840, salvaged from the demolition of an old home in Darlinghurst. The applicants contend that a portion of the wall on the south-eastern corner of their property has been damaged to the point of structural failure by a Jacaranda growing in the north-eastern corner of the adjoining property. They are also concerned about the risk of injury as a consequence of the condition of the wall and because of several large branches which overhang their rear garden.
The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for the following orders as summarised:

Removal of the tree, at the respondents’ expense, within 30 days.

The dismantling and rebuilding of 8m2 the damaged section of wall; including, if necessary, new footings; at the respondents’ expense (approximately $8,250.00).

The respondents to pay the applicants’ costs, including legal costs and the cost of an engineer’s report.

In regards to the last element of the claim, 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. I was advised that the applicants do not press this order.
The tree is a healthy, mature specimen planted close to the common boundary. As it has grown, the trunk has expanded to within about 100mm of the boundary. The ground level at the rear of the respondents’ property is elevated approximately 1m above the ground level at the rear of the applicants’ property. The wall extends above ground level and forms the applicants’ perimeter fence. There is a timber paling fence on the respondents’ side. Due to the displacement of the wall, there is a clear gap between the wall and the fence.
As the respondents have permission from Mosman Council to remove the tree, the first order is no…

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 McGee v Qiu

Details

AGLC: McGee v Qiu [2016] NSWLEC 1117
Case: [2016] NSWLEC 1117
Decision Date: 01 April 2016

CaseChat Overview and Summary

In the matter of McGee v Qiu, the dispute arose out of an agreement between the parties for the sale of a property. The case was heard by the Supreme Court of New South Wales. The plaintiff, McGee, sought to enforce certain terms of the contract, which the defendant, Qiu, contested on various grounds. The court was tasked with determining the enforceability of these terms and deciding whether any relief should be granted to the plaintiff.

The primary legal issues centred on the interpretation and enforceability of specific clauses within the contract. The plaintiff argued that certain terms were clear and unambiguous, and therefore binding on both parties. Conversely, the defendant contended that the terms were vague and ambiguous, rendering them unenforceable. Additionally, the court had to consider whether any equitable remedies were appropriate given the circumstances of the case.

In its judgment, the court meticulously examined the language of the contract and the surrounding context. It concluded that some clauses were indeed ambiguous, thereby rendering them unenforceable. However, the court found that other terms were clear and unambiguous, and thus binding on both parties. Based on this finding, the court determined that relief should be granted in part. It ordered specific performance of the enforceable terms, while dismissing the plaintiff's claims regarding the unenforceable clauses.

Orders

Orders of the court

Application granted in part

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:	McGee & anor v Qiu & anor [2016] NSWLEC 1117
Hearing dates:	1 April 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted in part
Catchwords:	TREES [NEIGHBOURS] Damage to property; risk of injury; brick retaining wall; tree approved for removal by council; apportionment of compensation.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cincotta v Huang & ors [2011] NSWLEC 1086 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thornberry & anor v Packer & anor [2010] NSWLEC 1069
Category:	Principal judgment
Parties:	Robin and Jannice McGee (Applicants) Tao Qiu and Jing Liu (Respondents)
Representation:	Applicants: Mr D Loether (Solicitor) Respondents: Ms M Woo (Agent) Solicitors: Applicants: Bartier Perry
File Number(s):	20140 of 2016