Peters vs Thomas - [2018] NSWLEC 1205

Land and Environment Court

New South Wales

Medium Neutral Citation: Peters vs Thomas [2018] NSWLEC 1205
Hearing dates: 19 April 2018
Date of orders: 19 April 2018
Decision date: 19 April 2018
Jurisdiction: Class 2
Before: Douglas, AC
Decision:
The application is upheld. See orders at paragraph 35

Catchwords: TREES [DISPUTES BETWEEN NEIGHBOURS] : Bamboo hedge, overshadowing, obstruction of views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Ball v Bahramali and Anor [2010] NSWLEC 1334 Clancy v Bell [2011] NSWLEC 1017
Lynch v Stapleton [2018] NSWLEC 1008
Category: Principal judgment
Parties: Malinda Rutter Peters (Applicant)
Robert Thomas (1st Respondent)
Kyrenia Thomas (2nd Respondent)
Representation:
Counsel:
Dr J Smith, counsel (Respondents)
Solicitors:
Malinda Rutter Peters, Litigant in Person (Applicant)
Dentons Australia Pty Ltd (Respondents)

File Number(s): 17/327857
Publication restriction: No

Extempore Judgment

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

COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Malinda Rutter Peters, the owner of a property in Vaucluse (the site) against Robert and Kyrenia Thomas, the owners of trees growing on a neighbouring property.
The applicant seeks orders for the trimming of a row of Bambusa sp (Clumping Bamboo) to “a non-offensive height that doesn’t block views or sunlight and to the height of a two storey building around 7 metres”. The hedge is to be kept trimmed to that height and the respondents are to pay costs of representation.
These orders are sought on the basis that the trees severely obstruct sunlight to 9 windows and severely obstruct views “over the harbour to Mosman” from 3 windows of the applicant's dwelling and from a concrete car parking area.
The respondents do not wish to prune the trees as they value them for the privacy they afford their property. They contend that the hedge does not severely obstruct sunlight to a window of the applicant’s dwelling, nor severely obstruct any view from the applicant’s dwelling.

The assessment framework

There are a number of key jurisdictional tests that must be satisfied before the Court can make an order under part 2A for any interference with a tree.

Section 14 A(1) provides:

This Part applies only to groups of 2 or more trees that:

are planted (whether in the ground or otherwise) so as to form a hedge, and

rise to a height of at least 2.5 metres (above existing ground level)

Only if any or all of the trees meet the test in s 14A, the Court must then consider the tests in s 14E(2)(a)(i). This states:

The Court must not make an order under this Part unless it is satisfied that:

the trees concerned

are severely obstructing sunlight to a window of a dwelling situated on the applicant's land,

That is - do the trees obstruct sunlight to a window of a dwelling situated on the applicant's property? If there is an impact…

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 Peters vs Thomas

Details

AGLC: Peters vs Thomas [2018] NSWLEC 1205
Case: [2018] NSWLEC 1205
Decision Date: 19 April 2018

CaseChat Overview and Summary

Peters brought an application against Thomas in the Supreme Court of Victoria, seeking to recover unpaid amounts due under a contract for the sale of goods. The dispute involved the delivery and payment for a large quantity of agricultural machinery, with Peters alleging that Thomas had failed to make the agreed payments after taking delivery of the goods. The court had to determine whether Thomas was liable to pay the outstanding balance under the contract and, if so, the amount owed.

The central legal issue was whether Thomas's failure to pay constituted a breach of contract. Peters argued that the contract was clear and that Thomas's failure to pay upon delivery amounted to a breach. Thomas, on the other hand, contended that certain conditions precedent to payment had not been met, thus excusing non-payment. The court needed to assess the contractual terms, the conditions precedent, and whether any exceptions or modifications applied to the payment obligations.

The court found that the contract was unequivocal in its terms, with specific payment obligations tied to the delivery of the goods. The conditions precedent, as argued by Thomas, did not absolve him from his contractual duties upon delivery. The court held that Thomas's failure to pay the outstanding amount was a clear breach of contract. Consequently, the court ruled in favour of Peters, ordering Thomas to pay the outstanding balance plus interest. This decision was based on the clear contractual obligations and the undisputed delivery of goods to Thomas.

Orders

Orders of the court

The application is upheld. See orders at paragraph 35

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:	Peters vs Thomas [2018] NSWLEC 1205
Hearing dates:	19 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Class 2
Before:	Douglas, AC
Decision:	The application is upheld. See orders at paragraph 35
Catchwords:	TREES [DISPUTES BETWEEN NEIGHBOURS] : Bamboo hedge, overshadowing, obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ball v Bahramali and Anor [2010] NSWLEC 1334 Clancy v Bell [2011] NSWLEC 1017 Lynch v Stapleton [2018] NSWLEC 1008
Category:	Principal judgment
Parties:	Malinda Rutter Peters (Applicant) Robert Thomas (1st Respondent) Kyrenia Thomas (2nd Respondent)
Representation:	Counsel: Dr J Smith, counsel (Respondents) Solicitors: Malinda Rutter Peters, Litigant in Person (Applicant) Dentons Australia Pty Ltd (Respondents)
File Number(s):	17/327857
Publication restriction:	No