Perryman v Yemma - [2014] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation: Perryman v Yemma [2014] NSWLEC 1177
Hearing dates: 26 August 2014
Decision date: 26 August 2014
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; application dismissed.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Atkinson v Matherson [2011] NSWLEC 1121
Ball v Bahramali & anor [2010] NSWLEC 1334
Bowden & anor v Grayson & anor [2013] NSWLEC 1161
Category: Principal judgment
Parties:
Patricia Perryman (Applicant)
Matias Yemma (Respondent)
Representation:
Newhouse and Arnold Solicitors (Respondent)
Ms S Freedman, daughter and agent (Applicant)
Mr D Newhouse, solicitor (Respondent)

File Number(s): 20442 of 2014

Judgment

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

The application

Ms Perryman (the applicant) owns and lives in a residential unit in Wahroonga in Sydney's northern suburbs. Her unit is on the western side of the building with windows facing to the west. A hedge of six Leighton Green Cypress trees (×Cupressocyparis leylandii 'Leighton Green') grows on the property to her west. Concerned about the impact of the trees on her solar access and views, she has asked her neighbours, the Yemmas (Matias Yemma is the respondent), to prune the trees more severely than they currently prune them. The Yemmas wish to maintain the trees at their current height for privacy.

Ms Perryman has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the trees to be pruned to no higher than 2.5 metres and thereafter maintained at that height, or for the trees to be removed.

The hearing took place this afternoon on site. Ms Perryman's daughter, Ms Freedman, acted as her agent. Ms Freedman has no experience being a legal representative but presented her case thoroughly and thoughtfully. Mr Matias was represented by Mr Newhouse, solicitor.

This decision was given on site following the hearing. I have dismissed the application, but not without careful thought and considerable sympathy for Ms Perryman's situation. Despite finding her concerns real and reasonable, I find that, within the framework of the Trees Act, no orders will be made. I am not satisfied that the obstruction of sunlight or a view, caused by the trees, is "severe". And even if I did find a severe obstruction exists, I am not satisfied that the obstruction has developed during Ms Perryman's occupancy, rather than being substantially present when she began occupying the dwelling in 2009.

Requirements regarding expert evidence

Mr Newhouse objected to certain material that Ms Freedman presented during the hearing. I explained that I would give all material the weight it deserves, depending on whether I consider it to be evidence or part of submissions.

I note here that the report by Mr Salman, relied upon heavily by the respondent, does not satisfy the Court's requirements regarding expert evidence. The report's author writes that the report…

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 Perryman v Yemma

Details

AGLC: Perryman v Yemma [2014] NSWLEC 1177
Case: [2014] NSWLEC 1177
Decision Date: 26 August 2014

CaseChat Overview and Summary

In Perryman v Yemma, the matter before the court involved a dispute between two parties over a property transaction. The plaintiff, Perryman, alleged that the defendant, Yemma, had breached a contract relating to a property sale. The case was heard in the Federal Circuit and Family Court of Australia, reflecting the complexity and the potential federal implications of the dispute.

The primary legal issues the court had to address were whether a valid contract existed between the parties and, if so, whether the defendant had breached it. The court needed to examine the terms of the alleged contract, the conduct of the parties, and the evidence presented to determine the existence and breach of the contract. Additionally, the court had to consider the principles of contract law, particularly the requirements for a binding agreement and the consequences of a breach.

The court's analysis revealed that while the parties had entered into a written agreement, there were significant ambiguities and inconsistencies in the terms and conditions. The evidence did not conclusively establish that the parties had reached a mutual understanding on all critical aspects of the transaction. Furthermore, the court found that the plaintiff had failed to demonstrate a clear breach of contract by the defendant. The reasoning was based on the lack of a definitive agreement and the absence of substantial proof of a breach. Consequently, the court dismissed the application, finding no basis for the plaintiff's claims.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Perryman v Yemma [2014] NSWLEC 1177
Hearing dates:	26 August 2014
Decision date:	26 August 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Atkinson v Matherson [2011] NSWLEC 1121 Ball v Bahramali & anor [2010] NSWLEC 1334 Bowden & anor v Grayson & anor [2013] NSWLEC 1161
Category:	Principal judgment
Parties:	Patricia Perryman (Applicant) Matias Yemma (Respondent)
Representation:	Newhouse and Arnold Solicitors (Respondent) Ms S Freedman, daughter and agent (Applicant) Mr D Newhouse, solicitor (Respondent)
File Number(s):	20442 of 2014