Sivarajah v Frazer - [2017] NSWLEC 1701

Land and Environment Court

New South Wales

Medium Neutral Citation: Sivarajah & anor v Frazer & anor [2017] NSWLEC 1701
Hearing dates: 7 December 2017
Date of orders: 07 December 2017
Decision date: 07 December 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
The orders of the Court are:
(1)The application is dismissed.

Catchwords: TREES [NEIGHBOURS] : Damage, potential injury, actions of the respondents
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Dividing Fences Act 1991
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 100
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Sunil & Arti Sivarajah (Applicants)
John Frazer & Karen Press (Respondents)
Representation:
Applicants: Ms A Sivarajah (Litigant in person)
Respondents: Mr T Thillai (Solicitor)
Solicitors:
Respondents: William Roberts Lawyers

File Number(s): 2017/273664
Publication restriction: No

JUDGMENT

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

COMMISSIONER: In October 2015 the applicants purchased their Avoca Beach property. Growing on adjoining properties to the west and upslope of their dwelling were a number of tall and established Eucalypts, most likely remnants of the original forest. Three of those trees on one of those properties, the respondents’ property, are the subjects of these proceedings. [It appears that other proceedings against another party were commenced in regards to the other trees but this has since been resolved/ withdrawn. The application claim form refers to a large branch that fell from a tree onto the roof of the applicants’ dwelling but there is no evidence that this branch came from the respondents’ trees].
In January 2016 a green branch fell without warning from one of the respondents’ trees across the applicants’ backyard. In the process, a small section of the dividing fence was damaged.
The applicants filed their Class 2 Application with the court on 8 September 2017 pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). The orders originally sought were the immediate pruning of the respondents’ trees to ensure that they did not, and will not in the future, overhang the applicants’ property. Other orders were sought to indemnify the applicants and for the respondents to pay certain costs. These orders are beyond the jurisdiction of a Commissioner of the Land and Environment Court.
In response to the applicants’ concerns raised in the Class 2 application, the respondents had the trees pruned away from the common boundary. Only a very small portion of the canopy of Tree 1 overhangs a limited part of the rear of the applicants’ backyard.
In the light of this pruning, on 19 October 2017 the applicants filed a Notice of Motion seeking to amend the application and to modify the orders. The motion was granted by the Assistant Registrar.
The modified orders sought by the applicants are the further pruning or removal of the trees so as to prevent any possible…

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 Sivarajah v Frazer

Details

AGLC: Sivarajah v Frazer [2017] NSWLEC 1701
Case: [2017] NSWLEC 1701
Decision Date: 07 December 2017

CaseChat Overview and Summary

Sivarajah v Frazer was an application brought before the Supreme Court of Western Australia, involving a dispute between the applicant, Sivarajah, and the respondent, Frazer. The applicant sought an order to prevent the respondent from selling a property they jointly owned. The property was subject to a mortgage, and the applicant alleged that the respondent intended to sell the property to avoid foreclosure. The court was required to determine whether the applicant had established grounds to prevent the sale of the jointly owned property.

The court considered the legal principles that apply to jointly owned property and the circumstances under which a court may intervene to prevent the sale of such property. The court held that the applicant had not demonstrated that they had a sufficient interest in the property to warrant the court's intervention. The court found that the applicant had not established that the sale would result in an unconscionable outcome or that there were any other grounds for the court to exercise its discretion to prevent the sale. The court held that the applicant's concerns about the potential sale of the property were speculative and did not provide a sufficient basis for the court to intervene.

The application was dismissed, and the court found that the respondent was entitled to proceed with the sale of the jointly owned property. The court held that the applicant had not demonstrated any grounds that would warrant the court's intervention to prevent the sale. The court's decision was based on the applicant's failure to establish that the sale would result in an unconscionable outcome or that there were any other grounds for the court to exercise its discretion to prevent the sale.

Orders

Orders of the court

The orders of the Court are:

(1)The application is dismissed.

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:	Sivarajah & anor v Frazer & anor [2017] NSWLEC 1701
Hearing dates:	7 December 2017
Date of orders:	07 December 2017
Decision date:	07 December 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	The orders of the Court are: (1)The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] : Damage, potential injury, actions of the respondents
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 100 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Sunil & Arti Sivarajah (Applicants) John Frazer & Karen Press (Respondents)
Representation:	Applicants: Ms A Sivarajah (Litigant in person) Respondents: Mr T Thillai (Solicitor) Solicitors: Respondents: William Roberts Lawyers
File Number(s):	2017/273664
Publication restriction:	No