Moutia v Jarrett - [2013] NSWLEC 1129

Land and Environment Court

New South Wales

Medium Neutral Citation: Moutia v Jarrett [2013] NSWLEC 1129
Hearing dates: 19 July 2013
Decision date: 19 July 2013
Jurisdiction: Class 2
Before: Fakes C; Galwey AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; compensation for sewer repairs; period over which respondent owned the property
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Cincotta v Huang & ors [2011] NSWLEC 1086
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Thornberry & anor v Packer & anor [2010] NSWLEC 1069
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Mr L Moutia (Applicant)
Mr A Jarrett (Respondent)
Representation: Applicant: Mr L Moutia (Litigant in person)
Respondent: Mr A Jarrett (Litigant in person)

File Number(s): 20270 of 2013

Judgment

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

COMMISSIONERS: The applicant in these proceedings is seeking orders for the removal of a tree growing on a neighbouring property as well as compensation for repairs to his sewer that he contends was damaged by the tree's roots. The amount claimed for plumbing costs is $4617.50.

The applicant also seeks reimbursement for an arborist's report. Commissioners do not have the jurisdiction to award such costs. Should the applicant wish to pursue this, a Notice of Motion will have to be heard by a Judge or Registrar of the Court.

The respondent wishes to retain the tree and disputes his liability for the repairs to the sewer.

The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

The tree

The tree is located in the south-eastern corner of the respondent's property. The applicant's arborist, Mr James McArdle identifies the tree as Cratageus viridis 'Winter King' [Hawthorn]. On site, we identified the tree as Acer negundo (Box Elder). A Broadleaf Privet is growing at its base. We understand the application applies only to the Box Elder. (Mr McArdle identifies the Privet as Lagunaria sp [Norfolk Island Hibiscus]).

The Mcardle report identifies some potential structural defects such as included stems and a cavity.

Relevant background

The applicant has lived on his property for over 30 years. The dwelling is thought to be at least 50 years old; the sewer pipes are thought to be the original pipes. The respondent purchased his property in September 2012 but does not reside there; the dwelling is unoccupied.

In late November 2012, the applicant states that he observed seepage that was clearly sewage in the north-western corner of his property in the vicinity of the junction of his sewer with the main.

The applicant contends that he wrote to "The owner of property..." at the respondent's address advising that he would like to discuss the matter of a tree at…

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 Moutia v Jarrett

Details

AGLC: Moutia v Jarrett [2013] NSWLEC 1129
Case: [2013] NSWLEC 1129
Decision Date: 19 July 2013

CaseChat Overview and Summary

In the case of Moutia v Jarrett, the applicant sought an injunction to restrain the respondent from publishing defamatory statements about her on social media. The matter was heard in the Supreme Court of Queensland. The applicant, a former employee of the respondent, alleged that the respondent had made false and defamatory statements about her on social media, causing her reputational damage. The applicant sought an injunction to prevent the respondent from publishing any further defamatory statements about her.

The primary legal issue before the court was whether the applicant had established a prima facie case for an interlocutory injunction. The court needed to consider whether the applicant had a serious question to be tried, whether the balance of convenience favoured the grant of the injunction, and whether the applicant had suffered or would suffer irreparable harm if the injunction was not granted. The court also needed to consider whether the respondent had any real prospect of successfully defending the application.

The court found that the applicant had not established a prima facie case for an interlocutory injunction. The court found that the applicant had not shown that the statements made by the respondent were defamatory or that they were false. The court also found that the balance of convenience favoured the respondent, as the respondent had a right to freedom of speech and expression. The court found that the applicant had not shown that she would suffer irreparable harm if the injunction was not granted. The court further found that the respondent had a real prospect of successfully defending the application, as the statements made by the respondent were not defamatory or false. Therefore, the court dismissed the application for an interlocutory injunction.

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:	Moutia v Jarrett [2013] NSWLEC 1129
Hearing dates:	19 July 2013
Decision date:	19 July 2013
Jurisdiction:	Class 2
Before:	Fakes C; Galwey AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation for sewer repairs; period over which respondent owned the property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cincotta v Huang & ors [2011] NSWLEC 1086 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thornberry & anor v Packer & anor [2010] NSWLEC 1069 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mr L Moutia (Applicant) Mr A Jarrett (Respondent)
Representation:	Applicant: Mr L Moutia (Litigant in person) Respondent: Mr A Jarrett (Litigant in person)
File Number(s):	20270 of 2013