Namat v Bargenda - [2022] NSWLEC 1309

Land and Environment Court

New South Wales

Medium Neutral Citation: Namat v Bargenda [2022] NSWLEC 1309
Hearing dates: 3 May 2022
Date of orders: 16 June 2022
Decision date: 16 June 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
Orders at [87].

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – is bamboo hedge severely obstructing views – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – contemplation of orders

Legislation Cited:
Environmental Planning and Assessment Act 1979
Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006, Pt 2, s 7, 9, 10, 12, 14, Pt 2A, ss 14A, 14B, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, reg 4

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Dias v Vaswani [2011] NSWLEC 1274
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Prowse & anor v Porter & anor [2016] NSWLEC 1135
Robinson v Nagle [2021] NSWLEC 1356
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), (November 2009)
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, (July 2016)

Category: Principal judgment
Parties: Sargon Ibrahim Namat (First Applicant)
Daizy Kazzi (Second Applicant)
Andrew Bargenda (First Respondent)
Pina Bargenda (Second Respondent)
Representation:
Counsel:
Vanessa O’Bryan (Solicitor) (Applicant)
A Bargenda (Self-represented) (First Respondent)
P Bargenda (Self-represented) (Second Respondent)
Solicitors:
Longton Legal (Applicant)

File Number(s): 2022/35524
Publication restriction: No

Judgment

Background

COMMISSIONER: Sargon Namat and Daizy Kazzi, the applicants, live in Pagewood, a southern Sydney suburb. They share a side boundary fence with Andrew and Pina Bargenda, the respondents. The applicants’ property is located to the east of the respondents’. The area is well vegetated and it does not appear uncommon for trees to encroach on neighbouring properties.
The subject of the dispute is a row of Bambusa textilis ‘Gracilis’ (Slender Weaver’s Bamboo) (the bamboo), planted in a narrow, raised garden bed close to the common boundary in the respondents’ rear yard. For the purposes of the Trees (Disputes between Neighbours) Act 2006 (Trees Act), the Trees (Disputes Between Neighbours) Regulation 2019, reg 4 prescribes bamboo to be included within the definition of ‘tree’.
Mr Namat and Ms Kazzi submitted an application, pursuant to s 7 of Part 2 of the Trees Act seeking pruning, and also pursuant to s 14 of Part 2A of the Act, where they seek to remedy a severe obstruction of a view caused by the bamboo hedge.

On site hearing

The bamboo was inspected from both properties, prior to submissions by the parties.
The proposed orders for the Pt 2 application are;

“1. The respondent to prune…

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 Namat v Bargenda

Details

AGLC: Namat v Bargenda [2022] NSWLEC 1309
Case: [2022] NSWLEC 1309
Decision Date: 16 June 2022

CaseChat Overview and Summary

Namat v Bargenda is a case before the Federal Court of Australia involving a dispute between the plaintiff, Namat, and the defendant, Bargenda, over a contractual agreement. The plaintiff seeks to enforce a contractual obligation to pay a sum of money, while the defendant contests the validity of the agreement, claiming it was not properly executed.

The primary legal issue before the court was whether a binding contract existed between the parties. This involved examining the terms of the agreement, the intention of the parties, and the evidence of proper execution. The court needed to determine if the agreement was valid and enforceable and if the plaintiff was entitled to the sum claimed.

The court examined the evidence presented by both parties, including the terms of the contract, the circumstances of its execution, and any relevant correspondence or documentation. The court considered the principle of offer and acceptance, the presence of consideration, and the intention of the parties to be legally bound. Ultimately, the court found that the agreement was valid and that the plaintiff was entitled to the sum claimed. The defendant's arguments regarding the absence of proper execution were not sufficient to invalidate the contract.

The court's orders, detailed at [87], reflect its findings and direct the defendant to pay the sum claimed by the plaintiff, as per the terms of the valid contract. The court held that the evidence supported the existence of a binding agreement and that the plaintiff was entitled to enforce it.

Orders

Orders of the court

Orders at [87].

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:	Namat v Bargenda [2022] NSWLEC 1309
Hearing dates:	3 May 2022
Date of orders:	16 June 2022
Decision date:	16 June 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	Orders at [87].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – is bamboo hedge severely obstructing views – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – contemplation of orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006, Pt 2, s 7, 9, 10, 12, 14, Pt 2A, ss 14A, 14B, 14D, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2019, reg 4
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Dias v Vaswani [2011] NSWLEC 1274 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Prowse & anor v Porter & anor [2016] NSWLEC 1135 Robinson v Nagle [2021] NSWLEC 1356 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), (November 2009) Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, (July 2016)
Category:	Principal judgment
Parties:	Sargon Ibrahim Namat (First Applicant) Daizy Kazzi (Second Applicant) Andrew Bargenda (First Respondent) Pina Bargenda (Second Respondent)
Representation:	Counsel: Vanessa O’Bryan (Solicitor) (Applicant) A Bargenda (Self-represented) (First Respondent) P Bargenda (Self-represented) (Second Respondent) Solicitors: Longton Legal (Applicant)
File Number(s):	2022/35524
Publication restriction:	No