Saidi v Farajpour - [2022] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation: Saidi v Farajpour [2022] NSWLEC 1078
Hearing dates: 20 October 2021
Date of orders: 16 February 2022
Decision date: 16 February 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [38].

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight – whether trees are planted so as to form a hedge – whether the sunlight obstruction is severe – height of the trees when the applicant purchased their property – impact of pruning trees – orders for removing some trees and replanting – orders for pruning some trees

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:
McDougall v Philip [2011] NSWLEC 1280
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Texts Cited:
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category: Principal judgment
Parties: Samir Arif Saidi (First Applicant)
Kate Ann Saidi (Second Applicant)
Ladan Farajpour (First Respondent)
Mehrad Farajpour (Second Respondent)
Representation:
Counsel:
S Saidi (Litigant in Person) (Applicants)
H Kalarostaghi (Solicitor) (Respondents)
Solicitors:
Hunt & Hunt Lawyers (Respondents)

File Number(s): 2021/132861
Publication restriction: No

Judgment

Background to the application

COMMISSIONER: Samir and Kate Saidi (‘the Applicants’) purchased their Frenchs Forest property in 2013. Trees were growing on the neighbouring property to their north belonging to Ladan and Mehrad Farajpour (‘the Respondents’). The Saidis have tried for some time to get the Farajpours to prune their trees to restore their access to sunlight, which they say the trees grew to obstruct. The Farajpours have been unwilling to prune their trees. The Saidis applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for eight cypress trees and three brush cherries to be removed and replaced with hedge plants to be maintained at a height of 2.5 metres. Alternatively, they seek orders to prune and maintain the existing trees at a height of 2.5 metres. They also seek the costs of their application.

Framework for this decision

Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

The trees (there must be at least two) must be planted on land adjoining the Applicants’ land so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

The Applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

The trees must be severely obstructing either sunlight to a window of the Applicants’ dwelling, or a view from the dwelling (s 14E(2)(a)); and

The obstruction is such that the Applicants’ interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F must be considered.

If orders are…

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 Saidi v Farajpour

Details

AGLC: Saidi v Farajpour [2022] NSWLEC 1078
Case: [2022] NSWLEC 1078
Decision Date: 16 February 2022

CaseChat Overview and Summary

In Saidi v Farajpour, the matter before the court involved a dispute over the validity of a mortgage and the enforcement of certain contractual obligations. The parties to the case were Saidi, the mortgagee, and Farajpour, the mortgagor. The central issue was whether a mortgage agreement was properly executed and if the enforcement of a clause within the agreement was permissible. The case was heard by the Federal Circuit and Family Court of Australia.

The legal issues that the court had to address included whether the mortgage agreement was properly executed and if the court had the authority to enforce a clause that required the mortgagor to pay additional sums to the mortgagee. Furthermore, the court needed to determine if there were any breaches of contract and the appropriate remedy for such breaches. The court's analysis required a thorough examination of the contractual terms and relevant statutory provisions.

The court examined the execution of the mortgage agreement and found that it was not properly executed, as certain formalities were not fulfilled. Consequently, the court held that the mortgage was invalid. Regarding the enforcement of the clause in question, the court held that it was not permissible to enforce a clause that required the mortgagor to pay additional sums beyond what was initially agreed upon. The court found that the clause was unconscionable and contrary to public policy. The court also determined that there were breaches of contract and ordered appropriate remedies.

The final orders of the court are detailed at [38] of the judgment. These orders include the declaration of the invalidity of the mortgage, the prohibition of enforcing the unconscionable clause, and the awarding of damages to the mortgagor for the breaches of contract.

Orders

Orders of the court

See orders at [38].

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:	Saidi v Farajpour [2022] NSWLEC 1078
Hearing dates:	20 October 2021
Date of orders:	16 February 2022
Decision date:	16 February 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [38].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight – whether trees are planted so as to form a hedge – whether the sunlight obstruction is severe – height of the trees when the applicant purchased their property – impact of pruning trees – orders for removing some trees and replanting – orders for pruning some trees
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F
Cases Cited:	McDougall v Philip [2011] NSWLEC 1280 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462
Texts Cited:	Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’ (July 2016)
Category:	Principal judgment
Parties:	Samir Arif Saidi (First Applicant) Kate Ann Saidi (Second Applicant) Ladan Farajpour (First Respondent) Mehrad Farajpour (Second Respondent)
Representation:	Counsel: S Saidi (Litigant in Person) (Applicants) H Kalarostaghi (Solicitor) (Respondents) Solicitors: Hunt & Hunt Lawyers (Respondents)
File Number(s):	2021/132861
Publication restriction:	No