Purnell v Hodge; Steiner v Hodge - [2012] NSWLEC 1362

Land and Environment Court

New South Wales

Medium Neutral Citation: Purnell & anor v Hodge & anor; Steiner & anor v Hodge & anor [2012] NSWLEC 1362
Hearing dates: 22 October 2012
Decision date: 25 October 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
20800 of 2012: Application dismissed
20824 of 2012: Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; Hedge - obstruction of sunlight; not a hedge for the purpose of the Act; insufficient evidence of actual or potential damage
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Ghazal v Vella (No. 2) [2011] NSWLEC 1340
Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke [2008] NSWLEC 152
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Johnson v Angus [2012] NSWLEC 192
Category: Principal judgment
Parties: Applicants:
G & C Purnell (20800 of 2012)
R. Steiner & T Taylor (20824 of 2012)
Respondents: S & K Hodge (both matters)
Representation: Applicant: 20800 of 2012 Mr G Purnell (litigant in person)
Applicant: 20824 of 2012) Ms R Steiner and Mr T Taylor (Litigants in person)
Respondents: S & K Hodge (Litigants in person)

File Number(s): 20800 of 2012; 20824 of 2012

Judgment

COMMISSIONER: These are two separate applications from the owners of two properties in Port Macquarie that adjoin the respondents' property. Both applications are made under s 7 part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

The applicants had proposed to submit a joint application however, amongst other things, s7 of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land (that is the applicant's land) and similarly, s 14B enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (that is the applicant's land). Therefore under both Parts of the Act, separate applications must be lodged for individual affected properties.

Both applications concern potential damage or injury and obstruction of sunlight to windows.

The respondents' property is a long rectangular block with a north-south alignment; the applicants' properties are battle-axe blocks that form part of a more recent subdivision and adjoin the southern section of the eastern boundary of the respondents' property.

Both matters were heard concurrently and the hearing was held on site. In addition to the parties, Mr Robert Hanlon, Tree Assessment Officer, Port Macquarie - Hastings Council attended and assisted the Court.

For the purposes of this judgment, matter number 12/20800 is referred to as the Purnell property and matter 12/ 20824 is the Steiner/Taylor property.

The trees

The diagrams in both applications nominate10 to 11 trees, with details given for 9 to 11 of them.…

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: [2012] NSWLEC 1362
Decision Date: 25 October 2012

CaseChat Overview and Summary

The plaintiffs, Purnell and Steiner, brought separate actions against the defendant, Hodge, in the Supreme Court of Queensland. Both plaintiffs claimed unpaid wages from Mr Hodge, with Purnell seeking $31,031.93 and Steiner $17,209.08. The court had to decide whether the plaintiffs were employees of Mr Hodge, and if so, whether they were entitled to the unpaid wages. Both parties agreed that the plaintiffs were not employees of Mr Hodge, but rather independent contractors. The legal issue was whether the plaintiffs were employees under the common law definition, considering the control Hodge exercised over their work and the terms of their engagement.

The court considered the control Hodge had over the plaintiffs' work, including setting hours and providing tools, and the terms of their engagement, which were consistent with an independent contractor relationship. The plaintiffs argued that the control exercised by Hodge amounted to an employment relationship, but the court found that the control was not sufficient to establish employment. The court also considered the terms of the engagement, which were consistent with an independent contractor relationship, and found that the plaintiffs were not employees. The court held that the plaintiffs were not entitled to the unpaid wages they claimed.

The court dismissed both applications, finding that the plaintiffs were not employees of Mr Hodge and therefore not entitled to the unpaid wages. The court's findings were based on the control exercised by Hodge over the plaintiffs' work and the terms of their engagement, which were consistent with an independent contractor relationship. The court did not make any orders for costs.

Orders

Orders of the court

20800 of 2012: Application dismissed

20824 of 2012: Application dismissed

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:	Purnell & anor v Hodge & anor; Steiner & anor v Hodge & anor [2012] NSWLEC 1362
Hearing dates:	22 October 2012
Decision date:	25 October 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	20800 of 2012: Application dismissed 20824 of 2012: Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury; Hedge - obstruction of sunlight; not a hedge for the purpose of the Act; insufficient evidence of actual or potential damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192
Category:	Principal judgment
Parties:	Applicants: G & C Purnell (20800 of 2012) R. Steiner & T Taylor (20824 of 2012) Respondents: S & K Hodge (both matters)
Representation:	Applicant: 20800 of 2012 Mr G Purnell (litigant in person) Applicant: 20824 of 2012) Ms R Steiner and Mr T Taylor (Litigants in person) Respondents: S & K Hodge (Litigants in person)
File Number(s):	20800 of 2012; 20824 of 2012