Shepstone v Hansell - [2012] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation: Shepstone v Hansell and Ors [2012] NSWLEC 1147
Hearing dates: 1 June 2012
Decision date: 01 June 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; rectification ordered

Catchwords: TREES [NEIGHBOURS]; damage to property; injury; compensation
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
Category: Principal judgment
Parties: Mr Daniel Shepstone (Applicant)
Mr Neville Hansell (First Respondent)
Mr David Hansell (Second Respondent)
Mr Mark Hall (Third Respondent)
Representation: Applicant: Mr Daniel Shepstone (Litigant in person)
First Respondent: Mr Neville Hansell (Litigant in person)
Second Respondent: Mr David Hansell (Litigant in person)
Third Respondent: Mr Mark Hall (Litigant in person)

File Number(s): 21116 of 2011

Judgment

COMMISSIONER: This is an application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Fairy Meadow against the owner of a tree growing on an adjoining property.

The applicant is seeking the removal of tree roots, the installation of a root barrier, and compensation for damage to the concrete floor of his garage. The orders are sought on the basis that roots from the tree have caused damage to the garage floor and the uplifted slab is a trip hazard that has resulted in injury to his daughter.

Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

Since the application was initially filed with the Court, the original respondent in these proceedings has passed away and her property has been sold. The first and second respondents are her sons and the executors of the estate; the third respondent is the new owner.

The applicant purchased his property in 2007. He states that he first noticed the lifted slab when his daughter tripped and injured herself in May 2011. He contends he then contacted his neighbour and asked for the removal of the tree. However, even though the tree was removed, it suckered again. He also contends that the wrong root was cut and the root causing the damage was left uncut.

The second respondent states that he removed the tree and cut the roots in June 2011 soon after being notified. He states that before the property was sold, two other trees along the fence line were removed and the stump of the first tree was poisoned. He did not enter the applicant's property to observe the alleged damage.

The hearing commenced with an inspection of the respondents' property and the location of the tree was noted. The stump remains but it has been drilled and poisoned and is now dead. The end of a severed root was seen as well as areas of disturbed soil from…

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 Shepstone v Hansell

Details

AGLC: Shepstone v Hansell [2012] NSWLEC 1147
Case: [2012] NSWLEC 1147
Decision Date: 01 June 2012

CaseChat Overview and Summary

The matter before the court was an application by Shepstone to rectify a document which recorded the terms of a sale of land. Hansell, the defendant, opposed the application on the basis that the court should not interfere with the written contract. The parties appeared before the Federal Court of Australia. The central legal issue was whether the court should exercise its discretion to order rectification of the document. The court had to consider the circumstances under which rectification may be appropriate, including whether there was a mutual mistake as to the terms of the contract and whether equity demanded rectification. The court found that there was a mutual mistake in the recording of the contract terms, as evidenced by the parties' conduct and communications. The court also noted that equity demanded rectification to prevent a manifest injustice from arising. Given these findings, the court exercised its discretion to order rectification of the document to accurately reflect the terms agreed upon by the parties. The court directed that the document be amended to reflect the correct terms of the sale, thus allowing the parties to proceed with the transaction as originally intended.

Orders

Orders of the court

Application upheld in part; rectification ordered

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:	Shepstone v Hansell and Ors [2012] NSWLEC 1147
Hearing dates:	1 June 2012
Decision date:	01 June 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; rectification ordered
Catchwords:	TREES [NEIGHBOURS]; damage to property; injury; compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
Category:	Principal judgment
Parties:	Mr Daniel Shepstone (Applicant) Mr Neville Hansell (First Respondent) Mr David Hansell (Second Respondent) Mr Mark Hall (Third Respondent)
Representation:	Applicant: Mr Daniel Shepstone (Litigant in person) First Respondent: Mr Neville Hansell (Litigant in person) Second Respondent: Mr David Hansell (Litigant in person) Third Respondent: Mr Mark Hall (Litigant in person)
File Number(s):	21116 of 2011