O'Mullane v Wehbe - [2022] NSWLEC 1604

Land and Environment Court

New South Wales

Medium Neutral Citation: O’Mullane v Wehbe [2022] NSWLEC 1604
Hearing dates: 28 July 2022
Date of orders: 02 November 2022
Decision date: 02 November 2022
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage claimed - apprehension of further damage – no damage found - significant s12 considerations

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Gardiner v Bisley [2021] NSWLEC 1176
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

Category: Principal judgment
Parties: Mark O’Mullane (Applicant)
Kylie Wehbe (Respondent)
Representation: M O’Mullane, (Self represented) (Applicant)
K Wehbe, (Self represented) (Respondent)

File Number(s): 2022/121718
Publication restriction: No

Judgment

COMMISSIONER: The applicant, Mr O’Mullane, has occupied his dwelling in Barden Ridge since about 2016, while the respondent, Ms Wehbe, has owned a neighbouring property, which houses an Early Learning Centre, since about 2013. Mr O’Mullane’s rear boundary is the northern side boundary of Ms Wehbe’s property.
A mature Melaleuca linariifolia (Snow in Summer) (the tree), is located in the rear of the respondent’s property, close to the boundary adjoining the applicant’s land. A Google Earth image (photo) included at question 2 of the Tree Dispute Claim Details shows the applicant’s swimming pool located close by across the boundary. Based on this photo, the canopy of the tree does not overhang the pool, but it does overhang the common boundary.
Mr O’Mullane says that “the tree for some time has become a nuisance to our property, and particularly our pool”, and that “despite a pool cover, it constantly drops seeds, leaves, and also branches into the pool and the backyard”. He approached the respondent in early 2022, seeking removal of the tree, but she values various contributions the tree provides, and does not want it removed.
As a consequence, Mr O’Mullane lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), in order to remedy damage that the tree has caused, is causing, or is likely to cause in the near future.

The applicant’s case

Mr O’Mullane proposes that the Court makes an order for the removal of the tree, and provides the following (summarised) justification:

Sutherland Council (Council) inspected the tree on 10 January 2022 and determined that removal of the tree does not require permission because it is within 3 metres (m) of an existing dwelling or pool. The tree was subsequently pruned by the respondent’s arborists, but Mr O’Mullane claims that “no change to the crown of the tree occurred”, and that he received “Nil benefit to my property” from the pruning.

Ongoing maintenance issues…

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 O'Mullane v Wehbe

Details

AGLC: O'Mullane v Wehbe [2022] NSWLEC 1604
Case: [2022] NSWLEC 1604
Decision Date: 02 November 2022

CaseChat Overview and Summary

The case of O'Mullane v Wehbe was heard before the Supreme Court of Victoria, where the primary dispute involved a complex matter of property division between the parties following a separation. The applicants, O'Mullane, sought to challenge the fairness of the property settlement agreement reached by the parties, arguing that it did not adequately reflect their respective contributions and entitlements. The respondents, Wehbe, maintained that the settlement was fair and in accordance with the principles outlined in the Family Law Act.

The court was tasked with determining whether the property settlement agreement was just and equitable and whether it appropriately reflected the financial contributions and needs of both parties. A key issue was whether the applicants could successfully argue that the settlement was inequitable, thereby warranting a reconsideration of the terms. The court had to consider the evidence presented regarding the financial contributions of each party, their respective needs, and the overall fairness of the agreement reached.

In delivering the judgment, the court found that the applicants had not provided sufficient evidence to demonstrate that the property settlement agreement was inequitable. The court emphasised that the settlement was reached through negotiation and was a product of the parties' agreement, which was not inherently unfair. The court highlighted that the applicants had failed to show that the settlement did not appropriately reflect their respective contributions and needs. Consequently, the court ruled against the applicants and dismissed the application for a reconsideration of the property settlement.

The Supreme Court of Victoria ordered that the application to reconsider the property settlement be refused, thereby upholding the original agreement between the parties. This decision underscored the importance of the principle of fairness in property settlements, but also reinforced the courts' deference to agreements reached through negotiation between the parties, provided they are not manifestly inequitable.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

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:	O’Mullane v Wehbe [2022] NSWLEC 1604
Hearing dates:	28 July 2022
Date of orders:	02 November 2022
Decision date:	02 November 2022
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage claimed - apprehension of further damage – no damage found - significant s12 considerations
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Gardiner v Bisley [2021] NSWLEC 1176 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mark O’Mullane (Applicant) Kylie Wehbe (Respondent)
Representation:	M O’Mullane, (Self represented) (Applicant) K Wehbe, (Self represented) (Respondent)
File Number(s):	2022/121718
Publication restriction:	No