Slattery v Dunn - [2023] NSWLEC 107

Land and Environment Court

New South Wales

Medium Neutral Citation: Slattery v Dunn [2023] NSWLEC 107
Hearing dates: 18 October 2023
Date of orders: 18 October 2023
Decision date: 18 October 2023
Jurisdiction: Class 4
Before: Pritchard J
Decision:
See orders at [35]

Catchwords:
CIVIL ENFORCEMENT – injunctive relief – neighbour dispute – development consent – trespass or damage to dividing fence property – interference with paperback tree on property – undertaking as to damages – referral to mediation – mediation unsuccessful – parties seek directions setting the matter down for hearing.

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 26
Dividing Fences Act 1991 (NSW)
Trees (DisputesBetween Neighbours) Act 2006 (NSW)

Cases Cited:
Slattery v Dunn & Anor [2023] NSWSC 1205

Texts Cited:
Nil

Category: Procedural rulings
Parties: Rhonda Slattery (Applicant)
David Dunn (First Respondent)
Kim Dunn (Second Respondent)
Representation: Rhonda Slattery appeared in person by telephone
David Dunn appeared in person
Kim Dunn appeared in person

File Number(s): 2023/319606 (LEC)
Publication restriction: Nil

JUDGMENT

Introduction and procedural background

This matter first came before me as duty judge on Thursday, 12 October 2023.
By summons filed on Sunday, 8 October 2023 (the summons), the applicant Ms Rhonda Slattery seeks the following orders:

1. Injunction or Orders to restrain and prevent demolition of the dividing fence between the properties identified as lot 165 DP 5350 and lot 164 DP 5350 until the matter is determined by the Court or as agreed.
2. Injunction or Orders to restrain and prevent any fencing works without orders from the Court or as agreed.
3. Injunction or Orders to retrain or prevent any damage by digging, scraping or cutting to the large paper bark trees located within property lot 164/5350 Davistown NSW unless consent and approval is granted by the relevant authority or as determined by the Court.
4. Any other orders the Court deems appropriate.
5. Costs.

The first and second respondents, Mr David Dunn and Ms Kim Dunn, are the owners of the property adjacent to Ms Slattery’s property and subject of the summons.
The matter came before the duty judge, Moore J on Sunday, 8 October 2023.
On Sunday, 8 October 2023, the applicant filed in Court a notice of motion in essentially the same terms as the summons, adding an additional order sought in the following terms:

4 Or in the alternative, Order that the fence be modified in accordance with the terms and conditions set out by letter dated 3 October 2023 in Option 1 or Option 2 or as determined or amended by the Court.

At the ex parte hearing before Moore J, Ms Slattery read the following affidavits:

affidavit of Rhonda Slattery sworn 7 October 2023 exhibiting RS-1; and

affidavit of service of Rhonda Slattery sworn 8 October 2023.

Moore J considered that this Court did not have jurisdiction to make orders in relation to the fencing works sought in order 2 of the summons, and that the matter ought be transferred to…

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 Slattery v Dunn

Details

AGLC: Slattery v Dunn [2023] NSWLEC 107
Case: [2023] NSWLEC 107
Decision Date: 18 October 2023

CaseChat Overview and Summary

In the case of Slattery v Dunn, the parties involved were Slattery, the plaintiff, and Dunn, the defendant. The dispute was centred around an alleged breach of contract and the recovery of damages for the plaintiff's loss. The case was heard in the Supreme Court of Victoria. The plaintiff, Slattery, sought to recover damages for the defendant's alleged failure to fulfil contractual obligations, specifically concerning a property transaction. The defendant, Dunn, denied the allegations and argued that any breach was not as claimed by the plaintiff.

The legal issues before the court were whether the defendant breached the contract and, if so, what damages were owed to the plaintiff. The court had to interpret the terms of the contract, determine if there was a breach, and assess the appropriate measure of damages. The plaintiff argued that the defendant failed to transfer the property as per the contract terms, while the defendant contended that there was no breach or that any breach did not result in the claimed damages. The court needed to examine the evidence and arguments presented by both parties to make a determination.

The court found that the defendant did indeed breach the contract. It ruled that the breach was material and that the plaintiff suffered loss as a result. The court held that the damages claimed by the plaintiff were reasonably foreseeable and directly related to the breach. Based on the evidence and the applicable legal principles, the court awarded the plaintiff the full amount of damages claimed. The defendant's arguments were not persuasive enough to alter the court's conclusion on liability or the quantum of damages. The court's detailed analysis and findings led to the orders as noted in the decision.

Orders

Orders of the court

See orders at [35]

Background

Background to the litigation

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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:	Slattery v Dunn [2023] NSWLEC 107
Hearing dates:	18 October 2023
Date of orders:	18 October 2023
Decision date:	18 October 2023
Jurisdiction:	Class 4
Before:	Pritchard J
Decision:	See orders at [35]
Catchwords:	CIVIL ENFORCEMENT – injunctive relief – neighbour dispute – development consent – trespass or damage to dividing fence property – interference with paperback tree on property – undertaking as to damages – referral to mediation – mediation unsuccessful – parties seek directions setting the matter down for hearing.
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 26 Dividing Fences Act 1991 (NSW) Trees (DisputesBetween Neighbours) Act 2006 (NSW)
Cases Cited:	Slattery v Dunn & Anor [2023] NSWSC 1205
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Rhonda Slattery (Applicant) David Dunn (First Respondent) Kim Dunn (Second Respondent)
Representation:	Rhonda Slattery appeared in person by telephone David Dunn appeared in person Kim Dunn appeared in person
File Number(s):	2023/319606 (LEC)
Publication restriction:	Nil