Michaels v Lei - [2023] NSWLEC 1168

Land and Environment Court

New South Wales

Medium Neutral Citation: Michaels v Lei [2023] NSWLEC 1168
Hearing dates: 23 January 2023
Date of orders: 12 April 2023
Decision date: 12 April 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage claimed - apprehension of further damage and of injury – no damage proven – maintenance expectation is reasonable – risk of injury is low – significant s12 considerations

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 8, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Gardiner v Bisley [2021] NSWLEC 1176
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Le Bron v Chidiac [2019] NSWLEC 1194
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Ku-ring-gai Development Control Plan

Category: Principal judgment
Parties: Allen Michaels (Applicant)
Alberto Lei (First Respondent)
Wai Au (Second Respondent)
Representation: Counsel:
A Michaels (Self-represented) (Applicant)
A Lei (Self-represented) (First Respondent)
W Au (Self-represented) (Second Respondent)

File Number(s): 2022/286579
Publication restriction: Nil

JUDGMENT

Background

The respondents, Mr Lei and Ms Au, occupied their dwelling in Gordon in 2012, while the applicant, Mr Michaels, purchased the neighbouring property to the west in about 2014. The parties share a rear north-south boundary.
A mature Ulmus parvifolia (Chinese Weeping Elm) (the tree) is located in the back yard of the respondents’ property, about 3 metres (m) from the common rear boundary, and about 1m from the respondents’ northern side boundary.
In 2017, the applicant demolished his existing dwelling and built a new dwelling and also installed an inground swimming pool in his back yard, partly under the canopy of the tree. Based on aerial photographs included at question 2 of the Tree Dispute Claim Details (Form H), it appeared that at the time of the pool’s installation, the tree’s canopy extended over the common boundary by about 4 – 5m. This was consistent with an aerial photograph from Metromap, dated 1 April 2018, which was supplied by the respondents.
The eastern side of the pool is about 3m from the common boundary, with tiled pool surrounds extending to this boundary. The pool filter was installed in the north-eastern corner of the yard, adjacent to the common boundary. Therefore, the tree’s canopy primarily overhung the tiled pool surrounds but also encroached above the pool by about 2m.
The house and pool construction were completed in 2019, and in August 2019, the applicant contacted the respondents, advising that:

“we need you to trim all your tree branches sticking into and above our property ASAP and before any further damages caused and/or dirt accumulation from your falling leaves above our property and swimming pool.”

In a subsequent message to the respondents in August 2019, the applicant advised that he had confirmed with Ku-ring-gai Council (Council) that it was…

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 Michaels v Lei

Details

AGLC: Michaels v Lei [2023] NSWLEC 1168
Case: [2023] NSWLEC 1168
Decision Date: 12 April 2023

CaseChat Overview and Summary

The parties in this case are Michaels, the applicant, and Lei, the respondent. The nature of the dispute is an application to set aside a default judgment obtained by Lei against Michaels. The court in which this matter was heard is the Federal Circuit and Family Court of Australia. The court was required to determine whether the application to set aside the default judgment should be granted, considering the grounds for the application and the principles governing the setting aside of such judgments.

The central legal issue before the court was whether the applicant had demonstrated a sufficient basis for setting aside the default judgment, in line with the relevant statutory provisions and common law principles. Specifically, the court had to assess whether Michaels had shown a meritorious defence or a satisfactory explanation for the default, as well as whether there was a prospect of successfully defending the claim. The court also had to consider whether setting aside the judgment would result in substantial injustice to Lei if granted.

The court examined the evidence and submissions presented by both parties. It found that while Michaels had provided some explanation for the default, it did not sufficiently demonstrate a meritorious defence or a reasonable excuse. The court held that the application did not meet the necessary threshold for setting aside the default judgment, as Michaels had not shown a sufficient prospect of successfully defending the claim. Additionally, the court found that granting the application would cause substantial injustice to Lei, as it would unduly delay the proceedings and potentially prejudice Lei's position. Consequently, the court refused the application to set aside the default judgment.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

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:	Michaels v Lei [2023] NSWLEC 1168
Hearing dates:	23 January 2023
Date of orders:	12 April 2023
Decision date:	12 April 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage claimed - apprehension of further damage and of injury – no damage proven – maintenance expectation is reasonable – risk of injury is low – significant s12 considerations
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 8, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Gardiner v Bisley [2021] NSWLEC 1176 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Le Bron v Chidiac [2019] NSWLEC 1194 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Ku-ring-gai Development Control Plan
Category:	Principal judgment
Parties:	Allen Michaels (Applicant) Alberto Lei (First Respondent) Wai Au (Second Respondent)
Representation:	Counsel: A Michaels (Self-represented) (Applicant) A Lei (Self-represented) (First Respondent) W Au (Self-represented) (Second Respondent)
File Number(s):	2022/286579
Publication restriction:	Nil