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

1. 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").

1. 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.

1. 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."

1. 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 to his property by not writing to [the respondents] about the alleged damage being caused by the Camphor Laurel prior to 12 December 2013; and that not all of the damage to his property has been caused by the Camphor Laurel as he alleges."

1. Their counsel indicated particular reliance on s 12(h) of the Trees Act.

1. Commissioner Fakes reduced her extensive reasons, and detailed orders, to writing: Shields v Monhim & anor [2014] NSWLEC 1097; but the orders have not yet been formally entered, in accordance with Rule 7.6 of the Land and Environment Court Rules 2007.

1. Accordingly, the respondents rely upon Uniform Civil Procedure Rule 36.16 (1), which provides as follows:

The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

1. A series of very complex orders were made by Commissioner Fakes, but finding the resources to carry them out seems to be the major issue facing both sides of the dispute.

1. Despite the orders not having been entered, it appears, from Mr Shields' affidavit of 9 July 2014, that he has already taken some of the steps they require of him.

1. The background to the learned Commissioner's decision to proceed in the absence of the respondents is set out in her judgment, at [4] - [7]:

4 The respondents did not attend the directions hearing or the on-site hearing. Following their non-attendance at the directions hearing, the Registry wrote to the respondents on 28 April 2014 advising them that the Court was satisfied they had been effectively served by the applicant. They were advised that in their absence the Court had made directions (attached to the letter) and the hearing was to take place, on site, on Friday 23 May 2014 at 9.30 am. The letter made it clear that should they fail to appear, the Court may make final orders in their absence and that those orders could include a requirement for the respondents to rectify any alleged damage.

5 On the morning of the hearing, I observed a vehicle leaving the respondents' property some ten minutes or so before the hearing was to commence. The applicant later advised me that the person leaving was one of the respondents. I knocked on the front door on three occasions. Although I heard someone inside, nobody answered the door.

6 I am satisfied that the respondents were fully aware of the proceedings, but elected not to appear. I am also satisfied that they were duly advised that the matter would proceed in their absence. Apart from the letter from the Court, it is clear from correspondence in the applicant's bundle of evidence that the respondents were on notice of the proceedings and of the basis of the application.

7 I proceeded to hear and determine the matter in the absence of the respondents.

1. There appears to have been much regrettable unpleasantness between the parties over some years regarding the subject camphor laurel tree, although there is some dispute about when the respondents first were made aware of the applicant's claim that he suffered substantial property damage from the tree.

1. Many of the parties' communications, and even the affidavits upon which they rely, contain intemperate language, and the applicant made a complaint to police, after one exchange with the 1st respondent (see Shields 2 April 2014, par 4). The escalation of the dispute is to be much regretted.

1. The respondents unwisely declined to mediate the dispute, so the applicant brought these proceedings.

1. The respondents hold a Council approval to remove the tree, but the applicant refuses to share the cost of it.

1. Extra-curial dialogue between the parties was peremptorily terminated by the respondents.

1. That step resulted in (1) the respondents' disregarding the service by the applicant of his Class 2 documents, and in (2) their claiming not to have been aware of their contents.

1. I find that UCPR 10.21(1), regarding service, as properly understood, has been satisfied - the requirement to explain the documents arises only when they are rejected.

1. I accept, on the evidence, (1) that the applicant's process was properly served, (2) that the 1st respondent then sought advice from his son, and (3) that he then tried to reject the Class 2 application.

1. Before the Commissioner, there was clear evidence of the damage sustained by the applicant, and she formed the view that the camphor laurel was the primary cause.

1. However, it is fair to say that, despite the non-participation of the respondents, the applicant did not get "all his own way" in the Commissioner's decision. This is not an appeal against that decision, but I have no criticism to make of her reasoning and conclusions.

1. The respondents obtained Council's approval to remove the tree, but that approval will lapse on 28 August 2014. The estimated cost of that task ranges from $1800 to $4000. Council has apparently declined to assist financially.

1. Regrettably the respondents thought that the Council approval, which left removal of the tree to their discretion, because Council was not satisfied (Abraham, 1 July 2014, par 13) of any "structural dysfunction" warranting removal, was the sole "law and authority" on the dispute.

Discussion of the Respondents' Notice of Motion

1. Nothing has been put before the Court today to indicate any error on the Commissioner's part, including in her arriving at the decision outlined in pars [4] - [7] of her judgment, which I quoted above.

1. Instead of obtaining and acting upon proper legal advice, the respondents, after conferring with their son, simply rejected the Class 2 application papers which the applicant had served on them.

1. I certainly do not attribute to the respondents, in their behaviour, any disrespect of the Court.

1. They also deny receiving relevant correspondence from the Court, until the certified copy of the Commissioner's judgment arrived, Abraham deposing (14 July, par 15) that their mailbox is not secure.

1. Unfortunately for them, the Court of Appeal has held that "it is the act of posting that constitutes service, and, once posted, the act of service is complete and the time of completion is self-evident": Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; 62 NSWLR 361, at [35].

1. This Court has jurisdiction to set aside orders, such as were made, but not yet entered, in this case, but the jurisdiction to do so is not to be, and is never, exercised lightly.

1. I note the respondents' submission that the Court should rely on White J's obiter comment in Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226, at [26], that the Court 'may act' under the 36.16 provisions, where the defendant "merely fails to appear, although there has been no failure in allowing the defendant the opportunity to be heard. The rule may also apply where there has been a fundamental failure to afford the defendant the opportunity to be heard".

1. In any event, the Court must be satisfied that the circumstances are "wholly exceptional", and that the interests of justice demand intervention.

1. I surveyed the authorities, as they then stood, in Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 (at [43] - [61], and [103] -[104]). See also various Teoh judgments in the Court of Appeal, and also my judgment in Young v King (No 4) [2012] NSWLEC 236, at [379] - [390].

1. The High Court has urged the exercise of "great caution" in dealing with such applications: See Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, and Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570.

1. On those principles, no case has been made out in this matter for the Commissioner's decision to be set aside, despite the evidence of resulting hardship for the respondents.

1. Once a judgment is given, the parties to a matter remain bound by the way they conducted their respective cases, whatever may have occurred between them in the past.

1. The initiating party is responsible for arranging service of the court process, and the applicant in this matter attended to it personally.

1. Unfortunately, once served, the respondents accepted, and relied upon, poor and uniformed advice, without even checking the content of the documents served upon them (c.f. the usual family practice, summarised in [3] above).

1. Accordingly, the respondents' ANOM, must be dismissed.

1. The orders made by Fakes C on 23 May 2014 should be confirmed, but the dates she nominated should be amended to allow appropriate time for compliance.

1. The dates in Order (2) will now be 19 and 26 September 2014; in Order (5) 26 September 2014; in Order (7) 3 October 2014; and in Order (8) as follows:

(i)   31 October 2014

(ii)   28 November 2014

(iii)   24 December 2014

(iv)   30 January 2015

(v)   31 July 2015.

The date in Order (11) will be 30 September 2014.

Costs

1. The question of costs is within the Court's discretion, and I decline to make any orders as to the costs of the ANOM, and/or of today's hearing.

Orders

1. The formal Orders of the Court will, therefore, be as follows:

(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.

1. When I adjourn the Court, my chambers will provide Mr Shneider and Mr Altan with a fresh set of the Court's 23 May 2014 orders, with the compliance dates adjusted, and those orders should now be formally entered.

1. These reasons will shortly be published, and copies will be forwarded to the solicitors for the parties.

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Decision last updated: 21 July 2014