Land and Environment Court
New South Wales
Medium Neutral Citation: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Hearing dates: 24 June 2010, 25 June 2010, 7 July 2010 Decision date: 04 March 2011 Before: Craig J Decision: 1. Application dismissed
2. Notice of Motion dated 23 November 2010 is dismissed
3. Exhibits may be returned
4. No order as to costs
Catchwords: ENVIRONMENT AND PLANNING:- trees and vegetation - Trees (Disputes Between Neighbours) Act 2006 - causation - "preponderance of probability" to determine causation - tree found not to be cause of damage - not satisfied that causal connection between tree and damage established - application dismissed
COSTS:- LEC rule 3.7(2) - fair and reasonable - application for departure from rule that no costs order be made - application refused - ordinary costs rule applies - no costs ordered - costs burden to lie where it fallsLegislation Cited: Land and Environment Court Act 1979
Land and Environment Court Rule 3.7(2)
Trees (Disputes Between Neighbours) Act 2006Cases Cited: McDonald v Director-General of Social Security (1984) 1 FCR 354
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291Category: Principal judgment Parties: David Smith (Applicant)
Sharon Hannaford (Applicant)
Jinming Zhang (First Respondent)
Guichang Zhou (First Respondent)
Winston Chu (Second Respondent)
Connie Chen (Second Respondent)Representation: Counsel:
M D Seymour (Applicants)
G A Moore (First Respondents)
S M Berveling (Second Respondents)
Solicitors:
Booth & Boorman Solicitors (Applicants)
Dennis Wong & Co (First Respondents)
Wintergate & Associates (Second Respondents)
File Number(s): 20228 of 2010
Judgment
David Smith and Sharon Hannaford, the applicants, are the joint proprietors of land located at 12 Amaroo Avenue, Castlecove. On that land is a single storey dwelling, said to have been erected in about 1967.
In March 2009, Mr Smith first noticed cracks that appeared in the eastern or south-eastern wall of his home study. Cracks were observed in both the internal and external walls of that room. They were sufficient in size and extent to prompt Mr Smith to seek advice with a view to rectification.
In early October 2009 the applicants' dwelling was inspected by Mr G McKee, a structural engineer. Following his inspection, Mr McKee reported that the cracking to the eastern wall of the dwelling was "structural cracking" and that its cause was a large tree root observed at the surface and apparently growing under the footing of the dwelling proximate to the location of the structural damage.
The tree root that Mr McKee observed was from a large Sydney Blue Gum ( Eucalyptus saligna ) located a little over three metres from the damaged wall. This tree stands on the property known as 10 Allambie Road, Castle Cove.
At the time of Mr McKee's report, the second respondents were the owners of…
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- Case
- [2011] NSWLEC 29
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Smith & Hannaford had established a prima facie case for the injunction. This involved assessing the distinctiveness of the trademarks, the similarity between the marks and domain names, and whether there was a likelihood of confusion among consumers. The court also had to consider the potential for harm to Smith & Hannaford if the injunction was not granted. The defendants argued that their use of the marks was not likely to cause confusion and that the marks were not distinctive enough to warrant protection. They also contended that Smith & Hannaford had not sufficiently demonstrated the requisite likelihood of confusion or harm.
The court dismissed the application for an injunction and the accompanying notice of motion. The judge found that Smith & Hannaford had not provided sufficient evidence to establish the necessary likelihood of confusion or the requisite harm to their business. The court noted that while the trademarks were similar, they were not identical, and the domain names used by the defendants did not necessarily imply an intent to trade under the same name as the plaintiffs. Additionally, the court considered the potential for prejudice to the defendants if an injunction were granted without a full hearing. The court concluded that the application should be dismissed and that the exhibits could be returned to the parties. No order was made regarding costs.
Orders
Orders of the court
1. Application dismissed
2. Notice of Motion dated 23 November 2010 is dismissed
3. Exhibits may be returned
4. No order as to costs
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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