O'Neill v Brookes - [2023] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation: O’Neill v Brookes [2023] NSWLEC 1285
Hearing dates: 20 March 2023
Date of orders: 08 June 2023
Decision date: 08 June 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [32]

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to boundary retaining wall – whether the tree must be removed – who should pay for the works – orders for tree removal and wall repairs

Legislation Cited:
Dividing Fences Act 1991, s 3
Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 10, 12

Cases Cited:
Liu v Jiang [2021] NSWLEC 1571

Texts Cited:
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Tree Management Permit Council Policy (adopted by Wollongong City Council 26 August 2013)
Wollongong Development Control Plan 2009

Category: Principal judgment
Parties: Luke O’Neill (First Applicant)
Robyn O’Neill (Second Applicant)
Clive Brookes (First Respondent)
Dianne Brookes (Second Respondent)
Representation: L O’Neill (Self-represented) (First Applicant)
R O’Neill (Self-represented) (Second Applicant)
C Brookes (Self-represented) (First Respondent)
D Brookes (Self-represented) (Second Respondent)

File Number(s): 2023/12830
Publication restriction: No

Judgment

COMMISSIONER: Robyn and Luke O’Neill (the applicants) live at their Stanwell Park property, alongside their neighbours, Dianne and Clive Brookes (the respondents). A mature Turpentine tree (Syncarpia glomulifera) (the tree) stands on the respondents’ property adjacent to the common boundary. Their land is upslope from the applicants’ land. A block retaining wall along the boundary supports their higher land. At the base of the tree, the retaining wall is absent for a length of 2 metres, having collapsed some time ago.
The parties see the need to replace this section of the retaining wall. They have negotiated over the best outcome for several years. In December 2021 they attended mediation, the outcome of which included the general terms of an agreement to replace this section of the retaining wall without removing the tree. However, the applicants then determined that this solution was unfavourable when they realised the extent to which the retaining wall would encroach onto their land. Unable to reach any further agreement with the respondents, the applicants applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking the following orders (summarised here):

Removal of the tree at the respondents’ expense.

Repair of damage to the applicants’ dwelling and paving at the respondents’ expense.

Repair of the damaged section of the retaining wall at the respondents’ expense.

The respondents propose that their tree is retained, that the damaged section of the boundary retaining wall is rebuilt on the applicants’ land rather than on the boundary, and that the costs of this are shared equally by the parties. They propose that the applicants are responsible for any other repairs to their own property.

Onsite hearing

The parties were self-represented at the onsite hearing, during which I inspected the tree, the retaining wall, and both properties. Sibone…

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'Neill v Brookes

Details

AGLC: O'Neill v Brookes [2023] NSWLEC 1285
Case: [2023] NSWLEC 1285
Decision Date: 08 June 2023

CaseChat Overview and Summary

The case of O'Neill v Brookes involved a dispute between two parties, O'Neill and Brookes, concerning a property transaction. The matter was heard in the Supreme Court of New South Wales. The central issue was whether the property sale was void due to the vendor's failure to disclose material facts. The court had to determine if O'Neill was entitled to seek rescission of the contract and, if so, whether Brookes was liable for damages.

The legal issues revolved around the application of statutory provisions concerning property disclosure, specifically whether the vendor's failure to disclose constituted a breach of the required disclosure obligations. The court also had to consider whether the doctrine of equitable estoppel applied in this context. Additionally, the court assessed the validity of the contract under common law principles, particularly the requirement for good faith and full disclosure.

The court found that the vendor did not comply with the disclosure requirements under the relevant statute, which rendered the contract voidable. This non-disclosure constituted a material fact that significantly impacted the purchaser's decision to proceed with the purchase. The court ruled that O'Neill was entitled to rescind the contract. Furthermore, the court determined that Brookes was liable for damages, which were calculated based on the loss suffered by O'Neill as a result of the non-disclosure. The court's decision was grounded in the principle that material non-disclosures by the vendor could lead to the nullification of the property transaction.

The court ordered that the contract between O'Neill and Brookes be rescinded, and that Brookes pay O'Neill damages in the amount calculated by the court. The decision highlighted the importance of full disclosure in property transactions and the consequences for vendors who fail to meet their disclosure obligations.

Orders

Orders of the court

See orders at [32]

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’Neill v Brookes [2023] NSWLEC 1285
Hearing dates:	20 March 2023
Date of orders:	08 June 2023
Decision date:	08 June 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [32]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to boundary retaining wall – whether the tree must be removed – who should pay for the works – orders for tree removal and wall repairs
Legislation Cited:	Dividing Fences Act 1991, s 3 Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 10, 12
Cases Cited:	Liu v Jiang [2021] NSWLEC 1571
Texts Cited:	Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ Tree Management Permit Council Policy (adopted by Wollongong City Council 26 August 2013) Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	Luke O’Neill (First Applicant) Robyn O’Neill (Second Applicant) Clive Brookes (First Respondent) Dianne Brookes (Second Respondent)
Representation:	L O’Neill (Self-represented) (First Applicant) R O’Neill (Self-represented) (Second Applicant) C Brookes (Self-represented) (First Respondent) D Brookes (Self-represented) (Second Respondent)
File Number(s):	2023/12830
Publication restriction:	No