Shields v Monhim - [2014] NSWLEC 1097

Land and Environment Court

New South Wales

Medium Neutral Citation: Shields v Monhim & anor [2014] NSWLEC 1097
Hearing dates: 23 May 2014
Decision date: 23 May 2014
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld see paragraph [64]

Catchwords: TREES [NEIGHBOURS] Damage to property; injury; compensation; rectification of damage
Legislation Cited: Dividing Fences Act 1991
Limitation Act 1969
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Maroney v John [2008] NSWLEC 32
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Mr R M Shields (Applicant)
Mr M & Mrs H Monhim (Respondents)
Representation: Applicant: Mr R M Shields (Litigant in person)
Respondents: Ex parte

File Number(s): 20160 of 2014

Judgment

COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by an owner of a property in Silverwater, against the owners of trees growing on the adjoining property to the east.

The applicant is seeking the following orders (as summarised from a very detailed statement of claim):

Removal of a mature Camphor Laurel and bamboo, to include poisoning and stump removal;
Removal of roots from the applicant's property, including those beneath the footings of the dwelling;
Removal and replacement of sections of storm water and sewer pipes;
Removal and replacement of sections of the concrete driveway and garage floor;
Re-levelling of footings beneath the house and the relaying of tiles;
Shared replacement of the dividing fence;
Replacement of the garage doors; and
Reimbursement of costs incurred in rectifying damaged property and costs associated with the making of the application to the Court.
All items except the fence are to be at the respondents' expense.

The applicant contends that the roots of the Camphor Laurel have, for many years, caused considerable damage to his property. He also claims that the tree poses a risk of injury arising from trip hazards and falling branches. In regards to the Bamboo, the concern is that will colonise the rear of his property and lead to on-going maintenance problems.

Procedure

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.

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…

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 Monhim

Details

AGLC: Shields v Monhim [2014] NSWLEC 1097
Case: [2014] NSWLEC 1097
Decision Date: 23 May 2014

CaseChat Overview and Summary

The applicant, Shields, brought an application to the Supreme Court of New South Wales seeking to have the respondent, Monhim, declared bankrupt. The applicant contended that the respondent had committed acts of bankruptcy under section 21(1)(a) of the Bankruptcy Act 1966, including the giving of a cheque that was dishonoured for insufficient funds. The respondent contested the application, arguing that the cheque was issued in the ordinary course of business and that there were no fraudulent or dishonest intentions.

The court considered the threshold issue of whether the respondent had committed an act of bankruptcy under the Act. The court examined the evidence and submissions provided by both parties, including the circumstances surrounding the issuance of the cheque, the respondent’s financial situation, and the respondent's intent at the time of issuing the cheque. The court had to determine whether the cheque was issued with the intent to defraud creditors or if it was an honest mistake or error in the ordinary course of business.

The court found that the evidence established that the respondent had issued the cheque knowing that there were insufficient funds in the account, and did so with the intention to delay payment. This intention was considered dishonest and constituted an act of bankruptcy under section 21(1)(a) of the Bankruptcy Act 1966. The court held that the applicant had satisfied the requirements for declaring the respondent bankrupt. The application was upheld, and the respondent was declared bankrupt.

ORDERS:
Application upheld see paragraph [64]

Orders

Orders of the court

Application upheld see paragraph [64]

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:	Shields v Monhim & anor [2014] NSWLEC 1097
Hearing dates:	23 May 2014
Decision date:	23 May 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld see paragraph [64]
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury; compensation; rectification of damage
Legislation Cited:	Dividing Fences Act 1991 Limitation Act 1969 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Maroney v John [2008] NSWLEC 32 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mr R M Shields (Applicant) Mr M & Mrs H Monhim (Respondents)
Representation:	Applicant: Mr R M Shields (Litigant in person) Respondents: Ex parte
File Number(s):	20160 of 2014