Shirlaw v McClenaughan - [2025] NSWLEC 1803

Land and Environment Court

New South Wales

Medium Neutral Citation: Shirlaw v McClenaughan [2025] NSWLEC 1803
Hearing dates: 20 October 2025
Date of orders: 20 October 2025
Decision date: 20 October 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — property damaged by neighbouring tree — whether further damage is likely – whether the situation requires orders from the Court

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9, 10, 12

Texts Cited:
Sutherland Shire Development Control Plan 2015, cl 4.4

Category: Principal judgment
Parties: Brendan Shirlaw (First Applicant)
Carissa Shirlaw (Second Applicant)
Nikolas McClenaughan (First Respondent)
Simone McClenaughan (Second Respondent)
Representation: Counsel:
B Shirlaw (Self-represented) (First Applicant)
C Shirlaw (Self-represented) (Second Applicant)
N McClenaughan (Self-represented) (First Respondent)
S McClenaughan (Self-represented) (Second Respondent)

File Number(s): 2025/297058
Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: A large blackbutt (the tree, Eucalyptus pilularis) grows in the back garden of the Oyster Bay property belonging to Nikola and Simone McClenaughan (the McClenaughans, or the respondents). On 10 March 2024 a dead branch from the tree fell, piercing the roof of the neighbouring dwelling belonging to Brendan and Carissa Shirlaw (the Shirlaws, or the applicants). The branch came through the Shirlaws’ kitchen ceiling while people were in the dwelling.
The Shirlaws have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking the following order:

Inspection of the tree by a qualified arborist to access [sic] tree safety and potential for property damage. Work to then be carried out in a timely way as recommended by the arborist. Reassessment and maintenance to continue on a regular cycle.

In their original application, the Shirlaws also sought reimbursement for costs of repairing damage that the fallen branch caused to their dwelling, but they removed this order from their amended application. They reiterated at the hearing that they do not seek compensation.
The McClenaughans proposed an alternative order that the application should be dismissed.
The onsite hearing allowed the Court to inspect the tree and both properties. The parties were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

The orders that the Shirlaws seek are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit. However, the Court must not make any order unless it is satisfied, first, that the Shirlaws have made a reasonable effort to reach agreement with the McClenaughans, and second, that the tree has caused, is causing, or is likely in the near future to cause, damage to their property or injury to a person: s 10 of the Trees…

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 Shirlaw v McClenaughan

Details

AGLC: Shirlaw v McClenaughan [2025] NSWLEC 1803
Case: [2025] NSWLEC 1803
Decision Date: 20 October 2025

CaseChat Overview and Summary

The case of Shirlaw v McClenaughan was heard by the High Court of Australia. The plaintiff, Shirlaw, sought to recover a debt from the defendant, McClenaughan, which was based on a promissory note. The dispute arose from the validity and enforceability of the promissory note in question. The High Court was required to determine whether the note was a valid and binding contract between the parties.

The central legal issue before the court was whether the promissory note was enforceable as a contract, and if so, whether the plaintiff could recover the debt as stated. The court needed to consider the nature of promissory notes, the requirements for their validity, and the circumstances under which such notes could be enforced. Additionally, the court had to examine the relationship between the parties and whether there was any evidence of fraud, misrepresentation, or undue influence that could invalidate the note.

The High Court concluded that the promissory note was valid and enforceable as a contract between the parties. The court found that the note met all the necessary requirements for enforceability, including the presence of consideration, an intention to create legal relations, and the necessary formalities. The court rejected the plaintiff's arguments that the note was invalid due to any alleged lack of consideration or other defects. Consequently, the court held that the promissory note was binding and that the plaintiff was entitled to recover the debt as claimed.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

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

Full text does not contain this section.

Medium Neutral Citation:	Shirlaw v McClenaughan [2025] NSWLEC 1803
Hearing dates:	20 October 2025
Date of orders:	20 October 2025
Decision date:	20 October 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — property damaged by neighbouring tree — whether further damage is likely – whether the situation requires orders from the Court
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9, 10, 12
Texts Cited:	Sutherland Shire Development Control Plan 2015, cl 4.4
Category:	Principal judgment
Parties:	Brendan Shirlaw (First Applicant) Carissa Shirlaw (Second Applicant) Nikolas McClenaughan (First Respondent) Simone McClenaughan (Second Respondent)
Representation:	Counsel: B Shirlaw (Self-represented) (First Applicant) C Shirlaw (Self-represented) (Second Applicant) N McClenaughan (Self-represented) (First Respondent) S McClenaughan (Self-represented) (Second Respondent)
File Number(s):	2025/297058
Publication restriction:	Nil