Nolen v Balodis - [2016] NSWLEC 1119

Land and Environment Court

New South Wales

Medium Neutral Citation: Nolen & anor v Balodis & anor [2016] NSWLEC 1119
Hearing dates: 5 April 2016
Date of orders: 05 April 2016
Decision date: 05 April 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
1. The application in its entirety is dismissed.

Catchwords: TREES [NEIGHBOURS] Potential damage to property; debris; mould; Hedge – obstruction of sunlight and views; similar obstruction at time applicants purchased property
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Clancy v Bell [2010] NSWLEC 1351
Drewett v Best [2010] NSWLEC 1305
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
McDougall v Philip [2011] NSWLEC 1280
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category: Principal judgment
Parties: Glenn Nolen and Linda Ross (Applicants)
Nicole Balodis and Evan Guyatt (Respondents)
Representation: Applicants: G. Nolen and L Ross (Litigants in person)
Respondents: N Balodis and E Guyatt (Litigants in person)

File Number(s): 20049 of 2016

Judgment

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

COMMISSIONER: The applicants own a property in Summer Hill. They have applied under s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of Platycladus orientalis (Bookleaf Cypress) trees growing along the rear side boundary of the adjoining property.
The respondents do not wish to remove the trees as they value them for the contribution they make to the amenity of their back garden and the screening they will provide from a nearby recently approved 4 storey building to the south-east.

Part 2 Application

Section 7, Part 2 of the Act enables an owner (or occupier) of land to apply to the Court for an order to remedy restrain or prevent damage to property on an applicant’s land or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land.
The trees are three mature Bookleaf Cypress; I note that the application claim form and accompanying letters state that there are seven or eight trees. The three trees were present when the respondents purchased their property in 2010. They are growing along the south-western boundary of their property close to the dividing fence between the parties’ properties. The parties’ semi-detached dwellings are part of a row of similar cottages. The applicants purchased their property in April 2013. According to the respondents’ evidence (Exhibit 1), following a request from the applicants to prune the trees, in January/ February 2015 the respondents crown-lifted the trees by removing a number of lower and overhanging branches. It appears that this did not satisfy the applicants who then requested the trees be removed.
In their application…

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 Nolen v Balodis

Details

AGLC: Nolen v Balodis [2016] NSWLEC 1119
Case: [2016] NSWLEC 1119
Decision Date: 05 April 2016

CaseChat Overview and Summary

The case of Nolen v Balodis was heard in the Supreme Court of Queensland, where the plaintiff, Nolen, sought a declaration that the defendant, Balodis, was liable for the unpaid balance of a debt. The underlying dispute arose from a business transaction involving a loan made by Nolen to Balodis, who subsequently failed to repay the outstanding amount. The court was tasked with determining whether Balodis was legally obligated to repay the debt and if the plaintiff's application for a declaration of liability was justified.

The primary legal issue before the court was whether the plaintiff had established a valid and enforceable claim against the defendant for the unpaid debt. This involved examining the terms of the loan agreement, the evidence of the debt, and any applicable defenses raised by the defendant. Additionally, the court had to consider whether the plaintiff had provided sufficient evidence to support his claim and whether any procedural requirements had been met in lodging the application.

In its judgment, the court found that the plaintiff had not discharged the onus of proving the existence of the debt and the defendant's liability. The evidence provided was deemed insufficient to establish the amount owed or the terms under which the debt was incurred. The court highlighted that the plaintiff's application lacked the necessary particulars and documentary evidence to substantiate the claim. Consequently, the application was dismissed in its entirety, with the court ruling that the plaintiff had not met the legal standards required to secure a declaration of liability against the defendant.

Orders

Orders of the court

1. The application in its entirety 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:	Nolen & anor v Balodis & anor [2016] NSWLEC 1119
Hearing dates:	5 April 2016
Date of orders:	05 April 2016
Decision date:	05 April 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	1. The application in its entirety is dismissed.
Catchwords:	TREES [NEIGHBOURS] Potential damage to property; debris; mould; Hedge – obstruction of sunlight and views; similar obstruction at time applicants purchased property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Clancy v Bell [2010] NSWLEC 1351 Drewett v Best [2010] NSWLEC 1305 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 McDougall v Philip [2011] NSWLEC 1280 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Glenn Nolen and Linda Ross (Applicants) Nicole Balodis and Evan Guyatt (Respondents)
Representation:	Applicants: G. Nolen and L Ross (Litigants in person) Respondents: N Balodis and E Guyatt (Litigants in person)
File Number(s):	20049 of 2016