Patane v Singh - [2015] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation: Patane v Singh & anor [2015] NSWLEC 1495
Hearing dates: 27 November 2015
Date of orders: 27 November 2015
Decision date: 27 November 2015
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; compensation; absence of evidence; other factors.
Legislation Cited: Civil Procedure Act 2005
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Robert Patane (Applicant)
Rashpal Singh (First Respondent)
Paramjit Kaur (Second Respondent)
Representation:
Applicant: Ms J McIntosh (Barrister) (Direct access)
Respondents: Ms A Gibbons (Barrister)
Solicitors:
Respondents: Muhammad Chaudhry MIC Lawyers

File Number(s): 20726 of 2015

Judgment

COMMISSIONER: The applicant purchased his Doonside property in August 2013. At the rear of the property, in the south-eastern corner is a concrete slab some 200mm from the boundary to the south and approximately 300mm from the common boundary with the respondents’ property to the east. The slab is all that remains of a garage thought to have been between 40 and 50 years old.
The applicant contends that an English Oak tree (Quercus robur), wrongly identified in the application claim form as a ‘Rubber Tree’, growing at the rear of the respondents’ property, caused irreparable damage to the garage necessitating its demolition on safety grounds.
The applicant has applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for the following orders: (as summarised from the application form):

The respondents to remove the tree and its stump and root system.

The respondents clean and repair any damage to the sewer and water system, including removing any remaining leaves and debris.

The respondents pay all costs associated with, and incidental to, orders (1) and (2).

The respondents pay the applicant $20,189 as compensation for the removal, disposal and replacement of the garage and slab.

The respondents pay the applicant’s legal costs.

In regards to proposed order (5), Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
Counsel for the applicant raised the jurisdictional test in s 10(1). I am satisfied that the applicant has made a reasonable effort to reach agreement with the respondents and the test is s 10(1) is met.
In applications under Part 2 of the Trees Act, the key jurisdictional test is found in s 10(2). This states:

(2) The Court must not make an order under this Part unless it is satisfied that 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.

Continue reading Patane v Singh

Details

AGLC: Patane v Singh [2015] NSWLEC 1495
Case: [2015] NSWLEC 1495
Decision Date: 27 November 2015

CaseChat Overview and Summary

The case of Patane v Singh came before the court in a dispute involving the interpretation and application of a contract between the parties. The applicant, Patane, sought to enforce certain terms of a contract which the respondent, Singh, contested. The dispute centred on the validity and enforceability of specific clauses within the contract, particularly those relating to arbitration and limitations on liability. The court was tasked with determining whether these clauses were binding and whether Singh was required to submit to arbitration as stipulated.

The legal issues before the court were whether the arbitration clause in the contract was valid and enforceable and whether the limitations on liability were reasonable and lawful. The court had to consider the principles of contract law, specifically the enforceability of arbitration clauses and the enforceability of limitations of liability clauses. Patane argued that the arbitration clause was binding and that Singh was obligated to submit to arbitration as per the contract terms. Singh, on the other hand, contended that the arbitration clause was unconscionable and that the limitations on liability were unreasonable and, therefore, unenforceable.

The court found that the arbitration clause was valid and enforceable, concluding that it was a clear and unequivocal agreement between the parties. The court held that Singh was bound by the clause and must submit to arbitration as per the contract. Regarding the limitations on liability, the court determined that these clauses were reasonable and lawful, thus enforceable. The court found no grounds to deem these clauses unconscionable or contrary to public policy. As a result, the application was dismissed, and the respondent was required to proceed with arbitration as stipulated in the contract.

Orders

Orders of the court

Application dismissed

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:	Patane v Singh & anor [2015] NSWLEC 1495
Hearing dates:	27 November 2015
Date of orders:	27 November 2015
Decision date:	27 November 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation; absence of evidence; other factors.
Legislation Cited:	Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Robert Patane (Applicant) Rashpal Singh (First Respondent) Paramjit Kaur (Second Respondent)
Representation:	Applicant: Ms J McIntosh (Barrister) (Direct access) Respondents: Ms A Gibbons (Barrister) Solicitors: Respondents: Muhammad Chaudhry MIC Lawyers
File Number(s):	20726 of 2015