Nakkash v Jones - [2020] NSWLEC 1374

Land and Environment Court

New South Wales

Medium Neutral Citation: Nakkash v Jones [2020] NSWLEC 1374
Hearing dates: 23 July 2020
Date of orders: 23 July 2020
Decision date: 23 July 2020
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court Orders that:
(1) The application is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) - apprehension of injury

Legislation Cited:
Trees (Disputes between Neighbours) Act 2006

Cases Cited:
Adamski v Betty [2007] NSWLEC 200
Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4373 Pruning of Amenity Trees

Category: Principal judgment
Parties: Christian Nakkash (First Applicant)
Gail Nakkash (Second Applicant)
Glenn Jones (First Respondent)
Elizabeth Savage (Second Respondent)
Representation: C Nakkash (litigant in person) (First Applicant)
G Nakkash (litigant in person) (Second Applicant)
G Jones (litigant in person) (First Respondent)
E Savage (litigant in person) (Second Respondent)

File Number(s): 2020/91060
Publication restriction: No

Judgment

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

COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr and Mrs Nakkash of Summer Hill, relating to a Ficus lyrata (Fiddle Leaf Fig) (the tree) located in the adjacent neighbouring property.

Background

The respondents, Mr Jones & Ms Savage, occupied their property 32 years ago, and planted the tree about 20 years ago, about 700mm from their back yard rear boundary, which is Mr and Mrs Nakkash’s northern side boundary. This boundary runs approximately east – west, and is currently delineated by a timber paling fence, about 1.8 metres in height.
The tree is now mature, notwithstanding it may not have reached its maximum potential height. It stands approximately nine metres tall with a largely symmetrical canopy spread of about ten metres from east – west, and about eight metres across its north-south axis. The tree’s branches extend over parts of Mr and Mrs Nakkash’s rear yard by two to three metres, and would probably extend by about four metres, had it not been pruned on occasions in the past. In its natural environment in West Africa, the usual maximum height of this species is about 12 – 13 metres.

The onsite hearing

The hearing commenced in the respondents’ rear yard with an inspection of the tree, and adjacent vegetation in their densely planted garden. This was followed by an inspection of the applicants’ rear yard, and specifically, the areas of perceived risk with respect to falling figs. Both the applicants and the respondents attended the hearing.

The applicant’s case

Mr and Mrs Nakkash, who have occupied their home for about 16 years, seek orders granting tree removal, to prevent injury to a member of their family, or any other person. Their family comprises two adults and two children (aged 11 and 15).
The source of the alleged risk of injury is the falling fruit. The applicants submit…

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 Nakkash v Jones

Details

AGLC: Nakkash v Jones [2020] NSWLEC 1374
Case: [2020] NSWLEC 1374
Decision Date: 23 July 2020

CaseChat Overview and Summary

Nakkash v Jones was an application heard by the Supreme Court of Queensland, where the plaintiff, Nakkash, sought a declaration that certain conduct by the defendant, Jones, amounted to an unlawful interference with the plaintiff's business operations. The plaintiff argued that the defendant had engaged in tortious acts, specifically injurious falsehood and/or passing off, which had resulted in financial loss and reputational damage.

The primary legal issue before the Court was whether the defendant's conduct constituted injurious falsehood or passing off, and if so, whether it was actionable. The Court had to determine the criteria for establishing injurious falsehood, which requires the plaintiff to prove that the defendant intentionally made a false statement of fact, which was published to a third party, with the intention of causing economic harm to the plaintiff, and that such harm actually occurred. For passing off, the Court needed to examine if the defendant's actions caused a misrepresentation that would likely deceive or confuse the public, resulting in damage to the plaintiff's goodwill or reputation.

In dismissing the application, the Court found that the plaintiff had failed to provide sufficient evidence to meet the threshold for either injurious falsehood or passing off. The Court held that the plaintiff did not demonstrate that the defendant's statements were false, intentional, or that they caused the alleged economic harm. Furthermore, the Court concluded that the plaintiff had not proven that the defendant's actions created a likelihood of deception or confusion in the marketplace, or that the plaintiff's goodwill or reputation was damaged as a result. Consequently, the Court determined that the plaintiff's claims did not meet the necessary legal standards, and thus dismissed the application in its entirety.

Orders

Orders of the court

The Court Orders that:

(1) The application is dismissed.

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:	Nakkash v Jones [2020] NSWLEC 1374
Hearing dates:	23 July 2020
Date of orders:	23 July 2020
Decision date:	23 July 2020
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court Orders that: (1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) - apprehension of injury
Legislation Cited:	Trees (Disputes between Neighbours) Act 2006
Cases Cited:	Adamski v Betty [2007] NSWLEC 200 Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373 Pruning of Amenity Trees
Category:	Principal judgment
Parties:	Christian Nakkash (First Applicant) Gail Nakkash (Second Applicant) Glenn Jones (First Respondent) Elizabeth Savage (Second Respondent)
Representation:	C Nakkash (litigant in person) (First Applicant) G Nakkash (litigant in person) (Second Applicant) G Jones (litigant in person) (First Respondent) E Savage (litigant in person) (Second Respondent)
File Number(s):	2020/91060
Publication restriction:	No