O'Donnell v Yam

Case [2008] NSWLEC 1444

Land and Environment Court


of New South Wales


CITATION: O’Donnell v Yam [2008] NSWLEC 1444
This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:

APPLICANT
Brendan O’Donnell

RESPONDENTS
Elseve Yam and Warren Yam
FILE NUMBER(S): 20843 of 2008
CORAM: Moore C
KEY ISSUES: Jurisdiction - Trees (Neighbours) :-
Tree removed prior to lodgment of application
No jurisdiction
LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
CASES CITED: Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
DATES OF HEARING: 13 October 2008
EX TEMPORE JUDGMENT DATE: 13 October 2008
LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENTS
In person

JUDGMENT:

        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        MOORE C

        13 October 2008

        20843 of 2008 Brendan O’Donnell v Elseve Yam and Warren Yam


        JUDGMENT

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

    1 COMMISSIONER : The tree that is the subject of the application was not in existence as at 19 August 2008, when Mr O’Donnell’s application was filed with the Court, as it had already been removed by Mr and Ms Yam.

    2 As a consequence, I am obliged, for the reasons discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at para 144, to dismiss the application because, as there was no tree the subject of an application situated on the Yams’ land at the date the application was made, the Court does not have jurisdiction to entertain the application. The application is dismissed.

    Tim Moore
    Commissioner of the Court
03/11/2008 - Correction to date - Paragraph(s) Cover sheet
Details
AGLC
O'Donnell v Yam [2008] NSWLEC 1444
Case
[2008] NSWLEC 1444
Decision Date

CaseChat Overview and Summary

Brendan O’Donnell brought an application before the Land and Environment Court of New South Wales against Elseve Yam and Warren Yam, alleging a dispute concerning trees on the Yams' property. The primary issue in the case was whether the Court had jurisdiction to hear the application given that the tree in question had been removed by the Yams prior to the filing of the application.

The legal issue before the Court was whether it had jurisdiction to hear the case, particularly in light of the fact that the tree, which was the subject of the application, had been removed by the Yams before the application was lodged. The Court was required to determine whether the absence of the tree at the time of the application meant that it lacked the jurisdiction to entertain the case.

The Court found that it did not have jurisdiction to hear the application because the tree, which was the subject of the dispute, was no longer present on the Yams' property at the time the application was made. The Court cited Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 as precedent, which established that the existence of the tree at the time of the application is a necessary condition for the Court's jurisdiction. Consequently, the application was dismissed as the Court could not exercise its jurisdiction in the absence of the tree.

The Court's decision was delivered ex tempore on 13 October 2008, and the application was dismissed. The judgment was subsequently revised and edited for publication on 3 November 2008.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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