Miletta v Ngo - [2024] NSWLEC 1070

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Miletta v Ngo [2024] NSWLEC 1070
Hearing dates: 16 February 2024
Date of orders: 16 February 2024
Decision date: 16 February 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, except for exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – two neighbouring hedges – obstruction of views and sunlight – whether the obstruction is severe – background material – whether the applicants have lost sunlight and views

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F

Cases Cited:
McDougall v Philip [2011] NSWLEC 1280
Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012

Category: Principal judgment
Parties: Caterina Miletta (First Applicant)
Carmela Miletta (Second Applicant)
Michael Ngo (Respondent)
Representation: Counsel:
C Miletta (Self-represented) (First Applicant)
C Miletta (Agent) (Second Applicant)
M Ngo (Self-represented) (Respondent)

File Number(s): 2023/291872
Publication restriction: No

Judgment

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

Background

COMMISSIONER: Caterina and Carmela Miletta (the applicants) have carried out extension and construction works at their Longueville property in accordance with their Development Consent. Vegetation on the neighbouring property belonging to Michael Ngo (the respondent) includes two hedges along the common boundary. The applicants have applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for trees in both hedges to be pruned to, and maintained at, the height of the boundary fence.
The hearing took place onsite, allowing the Court to inspect the trees, their impact on sunlight and views, and other relevant issues. and both properties. At the outset of the hearing, Caterina Miletta was granted leave to act as agent for her sister, Carmela, who was unable to attend. The respondent was self-represented.

Framework for this decision

The Court’s jurisdiction under Pt 2A of the Trees Act is restricted at s 14A:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and
(b) rise to a height of at least 2.5 metres (above existing ground level).

…

The key jurisdictional tests in these proceedings are found at s 14E(2) of the Trees Act:

14E Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

(2) The Court must not make an order under this Part unless…

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 Miletta v Ngo

Details

AGLC: Miletta v Ngo [2024] NSWLEC 1070
Case: [2024] NSWLEC 1070
Decision Date: 16 February 2024

CaseChat Overview and Summary

The case of Miletta v Ngo was heard by the Supreme Court of Queensland. The primary parties involved in this matter were Miletta, the applicant, and Ngo, the respondent. The dispute at hand pertained to the application by the applicant to vary an order concerning the disclosure of documents, specifically seeking the return of certain documents that had previously been disclosed. The central issue was whether the documents in question should be returned to the applicant or if they should remain with the respondent.

The legal issues that the court had to address included the interpretation and application of the relevant rules governing disclosure of documents in civil proceedings. The court needed to determine whether the applicant was entitled to have certain documents returned, which had already been disclosed to the respondent. The applicant argued that the documents should be returned due to the sensitive nature of the information contained within them, and that their continued possession by the respondent posed a risk of misuse. The respondent, on the other hand, contended that the documents should remain with them as they were necessary for the proper conduct of the proceedings.

In reaching its decision, the court considered the principles of fairness and the balance of convenience in the context of the disclosure process. The court also took into account the nature of the documents and the potential for prejudice or harm if they were returned. Ultimately, the court concluded that the application to have the documents returned was not justified. The court found that the documents were relevant to the proceedings and that there was no compelling reason to return them to the applicant. As a result, the application was refused, and the exhibits were ordered to be returned, with the exception of exhibit A, which was to remain with the respondent.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, except for exhibit A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Miletta v Ngo [2024] NSWLEC 1070
Hearing dates:	16 February 2024
Date of orders:	16 February 2024
Decision date:	16 February 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, except for exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – two neighbouring hedges – obstruction of views and sunlight – whether the obstruction is severe – background material – whether the applicants have lost sunlight and views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F
Cases Cited:	McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Caterina Miletta (First Applicant) Carmela Miletta (Second Applicant) Michael Ngo (Respondent)
Representation:	Counsel: C Miletta (Self-represented) (First Applicant) C Miletta (Agent) (Second Applicant) M Ngo (Self-represented) (Respondent)
File Number(s):	2023/291872
Publication restriction:	No