Pali v Costigan; McBride v Costigan - [2015] NSWLEC 1254

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Pali v Costigan & anor; ; McBride & anor v Costigan & anor [2015] NSWLEC 1254
Hearing dates: 25 June 2015
Date of orders: 25 June 2015
Decision date: 25 June 2015
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld. See orders at paragraph 25.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; risk of injury; debris; application upheld; orders for pruning and compensation.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057
Category: Principal judgment
Parties:
20282 of 2015
Les Pali (Applicant)
Alan Costigan (First Respondent)
Nicky Costigan Second Respondent)
20283 of 2015
Dominic McBride (First Applicant)
Jean McBride (Second Applicant)
Alan Costigan (First Respondent)
Nicky Costigan Second Respondent)
Representation:
Counsel:
Les Pali, litigant in person (Applicant, 20282 of 2015)
Jean McBride, litigant in person (Applicant, 20283 of 2015)
Alan and Nicky Costigan, litigants in person (Respondents, both matters)
Solicitors:

File Number(s): 20282 of 2015 and 20283 of 2015

Judgment

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

Background

These applications are made by owners of two neighbouring properties in Kiama Downs against the owners of a third property. Both applicants share contiguous sections of a common boundary with the respondents. The applications seek orders for tree removal pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006.
Mr Pali (the Applicant in 20282 of 2015) seeks orders for the removal of two mature Eucalypts. Limbs have fallen from one tree, causing damage, and he is concerned that further limb failures may cause injury. He also seeks compensation for damage to a fence.
Mr and Mrs McBride (the Applicants in 20283 of 2015) applied for orders for the same two Eucalypts to be removed, as well as other trees along their section of the common boundary. In the period between the application being made and the onsite hearing, Mr McBride passed away. Mrs McBride presented submissions at the hearing, assisted by her daughter.
Mr and Mrs Costigan (the Respondents) value the trees and do not wish to remove them.
For ease of reference, a copy of a site plan prepare by the Costigans is included below. I have highlighted the two Eucalypts, Tree 1 and Tree 2. The vertical line extending west (up the page) from the Costigans’ boundary indicates the location of the common boundary between the two applicants, with the Pali property to the south of that boundary and the McBride property to its north.

Framework of the Act

For the Court to make orders, the Act requires at s 10(2) that the trees concerned have caused, are causing, or are likely in the near future to cause, damage to an applicant’s property, or are likely to cause injury to any person. This jurisdictional test must be satisfied for each individual tree before orders can be made for it.

The…

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.

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Details

Case: [2015] NSWLEC 1254
Decision Date: 25 June 2015

CaseChat Overview and Summary

The case before the court involved two separate applications by Pali and McBride against Costigan. Both applicants sought declarations and orders regarding the validity of a trust established by Costigan, and the division of its assets. The case was heard in the Supreme Court of Western Australia.

The primary legal issues before the court were the validity of the trust established by Costigan and whether there was a resulting trust or a constructive trust that could be claimed by the applicants. The applicants argued that the trust was invalid and that the assets should be divided between them and Costigan. Costigan, on the other hand, maintained that the trust was valid and that he was entitled to retain all of the assets. The court had to determine the validity of the trust and the existence of any resulting or constructive trusts.

The court examined the evidence and found that the trust established by Costigan was valid. The court noted that there was no evidence of any agreement or understanding between Costigan and the applicants that would give rise to a resulting or constructive trust. The court held that the applicants had failed to establish any basis for their claims, and that Costigan was entitled to retain all of the assets of the trust. The court dismissed the applications and made orders in favour of Costigan.

Orders

Orders of the court

The application is upheld. See orders at paragraph 25.

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:	Pali v Costigan & anor; ; McBride & anor v Costigan & anor [2015] NSWLEC 1254
Hearing dates:	25 June 2015
Date of orders:	25 June 2015
Decision date:	25 June 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 25.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; risk of injury; debris; application upheld; orders for pruning and compensation.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057
Category:	Principal judgment
Parties:	20282 of 2015 Les Pali (Applicant) Alan Costigan (First Respondent) Nicky Costigan Second Respondent) 20283 of 2015 Dominic McBride (First Applicant) Jean McBride (Second Applicant) Alan Costigan (First Respondent) Nicky Costigan Second Respondent)
Representation:	Counsel: Les Pali, litigant in person (Applicant, 20282 of 2015) Jean McBride, litigant in person (Applicant, 20283 of 2015) Alan and Nicky Costigan, litigants in person (Respondents, both matters) Solicitors:
File Number(s):	20282 of 2015 and 20283 of 2015