Shields v Monhem (No 2) - [2014] NSWLEC 99

Land and Environment Court

New South Wales

Medium Neutral Citation: Shields v Monhem (No 2) [2014] NSWLEC 99
Hearing dates: 18 July 2014
Decision date: 18 July 2014
Jurisdiction: Class 2
Before: Sheahan J
Decision:
(1) The proceedings are amended to change the surname of both respondents to "Monhem".
(2) The Respondents' Amended Notice of Motion dated 1 July is dismissed.
(3) The Orders made by the Court on 23 May will be amended only in respect of dates for compliance.
(4)There will be no orders as to costs.

Catchwords: PRACTICE AND PROCEDURE: Application to set aside judgment and orders, and to re-open to enable respondents to defend - principles to apply when orders not yet entered - need to review timetable - costs
Legislation Cited: Land and Environment Court Rules 2007
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; 62 NSWLR 361
Shields v Monhim [2014] NSWLEC 1097
Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432
Young v King (No 4) [2012] NSWLEC 236
Category: Procedural and other rulings
Parties: Ranald Mark Shields (Applicant)
Mansour Monhem (1st Respondent)
Houda Monhem (2nd Respondent)
Representation: Mr S Shneider, solicitor (Applicant)
Mr H Altan, barrister (Respondents)
Houston Dearn O'Connor (Applicant)
Cordato Partners Lawyers (Respondents)

File Number(s): 20160 of 2014

ex-tempore Judgment

Introduction

Before the Court today is an Amended Notice of Motion, filed on 1 July ("ANOM") by the respondents, seeking to set aside the judgment given by, and orders made by, Commissioner Fakes, in a Class 2 tree dispute on 23 May 2014, pursuant to the Trees (Disputes Between Neighbours) Act 2006 ("Trees Act").

There is now clear evidence before the Court that the correct spelling of the respondents' surname is MONHEM - there was apparently an error made on the Certificate of Title at the time of their purchase of the property, at which the relevant trees are primarily located (see survey in affidavit of respondents' son, Abraham Monhem, dated 1 July 2014, at par 36). I formally order the amendment of the Court record accordingly.

Both parties are clearly of very limited means, and the respondents are also elderly, have some health problems, do not speak English very well, and cannot read it at all. Mr Monhem deposes, and Abraham confirms, that:

"all [the respondents'] mail, including 'junk' mail, is kept aside for [Abraham] to read and translate."

The respondents played no part in the hearing of the applicant's Class 2 application, and according to Abraham (14 July 2014, par 36), the respondents want the matter "reopened" so that they can:

"... demonstrate that the Applicant has contributed to the damage…

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 Shields v Monhem (No 2)

Details

AGLC: Shields v Monhem (No 2) [2014] NSWLEC 99
Case: [2014] NSWLEC 99
Decision Date: 18 July 2014

CaseChat Overview and Summary

In the matter of Shields versus Monhem (No 2), the parties involved were the applicant, Shields, and the respondents, originally identified as Monhem. The dispute centred on the amendment of certain proceedings and orders previously made by the court. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to address were whether the applicant had grounds to amend the proceedings to change the respondents' surname to "Monhem" and if the respondents' motion, dated 1 July, should be dismissed. Additionally, the court considered whether the orders made on 23 May needed to be amended, specifically in terms of compliance dates.

The court found that the application to amend the proceedings to change the respondents' surname was valid and necessary for clarity and accuracy in the records. The court dismissed the respondents' motion, finding it was not substantiated by the facts presented. Furthermore, the court decided that the orders from 23 May should only be amended to adjust the compliance dates, as requested by the applicant. The court ruled against making any orders as to costs, finding neither party warranted reimbursement for the legal expenses incurred.

In conclusion, the court's orders included amending the proceedings to reflect the correct surname of the respondents, dismissing the motion brought by the respondents, modifying the compliance dates of the earlier orders, and deciding that no party would bear the costs of the proceedings.

Orders

Orders of the court

(1) The proceedings are amended to change the surname of both respondents to "Monhem".

(2) The Respondents' Amended Notice of Motion dated 1 July is dismissed.

(3) The Orders made by the Court on 23 May will be amended only in respect of dates for compliance.

(4)There will be no orders as to costs.

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

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Medium Neutral Citation:	Shields v Monhem (No 2) [2014] NSWLEC 99
Hearing dates:	18 July 2014
Decision date:	18 July 2014
Jurisdiction:	Class 2
Before:	Sheahan J
Decision:	(1) The proceedings are amended to change the surname of both respondents to "Monhem". (2) The Respondents' Amended Notice of Motion dated 1 July is dismissed. (3) The Orders made by the Court on 23 May will be amended only in respect of dates for compliance. (4)There will be no orders as to costs.
Catchwords:	PRACTICE AND PROCEDURE: Application to set aside judgment and orders, and to re-open to enable respondents to defend - principles to apply when orders not yet entered - need to review timetable - costs
Legislation Cited:	Land and Environment Court Rules 2007 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226 Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; 62 NSWLR 361 Shields v Monhim [2014] NSWLEC 1097 Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 Young v King (No 4) [2012] NSWLEC 236
Category:	Procedural and other rulings
Parties:	Ranald Mark Shields (Applicant) Mansour Monhem (1st Respondent) Houda Monhem (2nd Respondent)
Representation:	Mr S Shneider, solicitor (Applicant) Mr H Altan, barrister (Respondents) Houston Dearn O'Connor (Applicant) Cordato Partners Lawyers (Respondents)
File Number(s):	20160 of 2014