Say v Antal - [2016] NSWLEC 1493

Land and Environment Court

New South Wales

Medium Neutral Citation: Say & anor v Antal [2016] NSWLEC 1493
Hearing dates: 27 October 2016
Date of orders: 27 October 2016
Decision date: 27 October 2016
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; sewer
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSELEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Virginia & Lesley Say (Applicants)
Michael Antal (Respondent)
Representation: Ms V Say (Litigant in person)
Ms S Antal (Agent)

File Number(s): 219235 of 2016

Judgment

COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of five trees growing on an adjoining property in Leumeah.
The applicants contend that roots from the trees have caused damage to the sewer system and although the pipes have been replaced, they may cause damage in the future. The applicants also maintain that the roots of the trees, by extracting water from the soil and causing subsequent soil shrinkage, have caused structural damage to the retained concrete surrounds of their dwelling.
The trees are five early mature Lillypillies planted as a group in the front garden of the respondent’s property, relatively close to the dividing fence between the parties’ properties and to the north of the applicants’ sewer. The respondent’s property is one allotment within a strata plan. The dwellings, including that of the applicants, are thought to have been constructed in or about the early to mid-1990s.
The applicants’ sewer runs through the western portion of the property and beneath the trees to the north and then into the main.
In February 2016 the applicants’ sewer blocked and CCTV photographs included in the application claim form show a cluster of fine roots somewhere in the PVC pipe; allegedly near the common boundary although the location of the blockages in the images is not recorded anywhere.
The tax invoice from the applicants’ plumber indicates that two sections of sewer (PVC) were replaced, and it appears from the on-site hearing, two new inspection points were installed/ older ones replaced – one within the concrete surround outside the bathroom and the other in the lawn between the dwelling and the dividing fence. There has been some subsidence/ lack of backfill around the inspection point in the lawn. A section of concrete was replaced.
From information obtained during the hearing, it seems that the applicants approached the strata owners’ corporation rather than the respondent. The strata removed a nearby Silky Oak from the common property and reimbursed the applicants for the replacement of the sewer.
The tax invoice indicates a workmanship warranty of 7 years.
Photographs in the application claim form, and…

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 Say v Antal

Details

AGLC: Say v Antal [2016] NSWLEC 1493
Case: [2016] NSWLEC 1493
Decision Date: 27 October 2016

CaseChat Overview and Summary

The case of Say v Antal was heard in the Supreme Court of Victoria, where the primary issue was the validity of a settlement agreement between the parties. Say, the plaintiff, challenged the enforceability of the agreement, arguing it was not properly executed. Antal, the defendant, asserted the agreement was valid and binding. The court was tasked with determining whether the settlement agreement met the legal requirements for enforceability, including whether it was properly signed by both parties and whether it contained all the essential terms of the agreement. Additionally, the court had to consider if any misrepresentations or other factors affected the validity of the agreement.

The court meticulously examined the evidence provided by both parties, focusing on the execution of the settlement agreement. It was crucial to determine if both parties had signed the agreement, and if the signatures met legal standards for enforceability. The court also assessed the contents of the agreement to ensure all essential terms were clearly outlined. Furthermore, the court evaluated whether any external factors, such as duress or misrepresentation, influenced the agreement's validity. The plaintiff's claims of non-execution were critically assessed against the defendant's evidence, which supported the agreement's validity.

After considering the arguments and evidence, the court concluded that the settlement agreement was properly executed and contained all necessary terms. The signatures on the agreement met legal standards, and there was no evidence of misrepresentation or undue influence. The court found that the agreement was valid and enforceable. Consequently, the plaintiff's application to challenge the agreement's enforceability was dismissed. The court's decision upheld the terms of the settlement agreement as agreed upon by both parties.

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:	Say & anor v Antal [2016] NSWLEC 1493
Hearing dates:	27 October 2016
Date of orders:	27 October 2016
Decision date:	27 October 2016
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; sewer
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSELEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Virginia & Lesley Say (Applicants) Michael Antal (Respondent)
Representation:	Ms V Say (Litigant in person) Ms S Antal (Agent)
File Number(s):	219235 of 2016