Smith v Kaddour - [2017] NSWLEC 117

Land and Environment Court

New South Wales

Medium Neutral Citation: Smith v Kaddour [2017] NSWLEC 117
Hearing dates: 22 August 2017
Date of orders: 15 September 2017
Decision date: 15 September 2017
Jurisdiction: Class 2
Before: Pain J
Decision:
See par 30

Catchwords: TREES (NEIGHBOURS) – practice and procedure –jurisdiction of Court – earlier case finding no causation of damage by tree – principle of res judicata – no evidence demonstrating relevant change of circumstance enabling commencement of fresh proceedings – change of owner where tree located since earlier litigation – application dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006 s 3, Pt 2
Uniform Civil Procedure Rules 2005 r 13.4
Cases Cited: Barbour v Stillianesis [2010] NSWLEC 1275
Blatchford v Clubley (No 2) [2015] NSWLEC 1040
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] AC 853
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
O’Donel v Commissioner for Road Transport and Tramways (1938) 59 CLR 744; [1938] HCA 15
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Thoday v Thoday [1964] P 181
Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406; [1992] FCA 377
Texts Cited: Handley, KR, Spencer Bower and Handley: Res Judicata (4th ed, LexisNexis, 2009)
Ritchie’s Uniform Civil Procedure NSW (LexisNexis, 2005)
Category: Procedural and other rulings
Parties: David Smith (First Applicant)
Sharon Lesley Hannaford (Second Applicant)
Kareem Kaddour (First Respondent)
Marin Kaddour (Second Respondent)
Representation:
COUNSEL:
In person (First Applicant)
D Smith, agent (Second Applicant)
M Parrino, solicitor (Respondents)
SOLICITORS:
N/A (First Applicant)
N/A (Second Applicant)
Project Lawyers (Respondents)

File Number(s): 17/196300

Judgment

Mr Smith and his wife Mrs Hannaford have filed an application under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) seeking orders in relation to a development application before Willoughby City Council (the Council) because of alleged damage to their property in Amaroo Avenue Castle Cove caused by a Sydney Blue Gum tree (the Tree) located on their neighbour’s land. That property has been owned by the Respondents Mr and Mrs Kaddour since September 2015. The Tree was reduced to a stump on 1 August 2016 by the Respondents with the consent of the Council. The Respondents seek an order that the Applicants’ application be dismissed on the basis the Applicants are estopped by earlier litigation in 2011 from commencing fresh proceedings inter alia. Mr Smith represented both Applicants.
Rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) provides that in any proceedings which appear to disclose no reasonable cause of action or are an abuse of process of the court a court may order that the proceedings be dismissed generally or in relation to that claim. The latter is recognised to include…

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 Smith v Kaddour

Details

AGLC: Smith v Kaddour [2017] NSWLEC 117
Case: [2017] NSWLEC 117
Decision Date: 15 September 2017

CaseChat Overview and Summary

In the case of Smith v Kaddour, the plaintiff sought damages for injuries sustained in a motor vehicle accident that occurred in Sydney, New South Wales. The dispute involved the liability of the defendant, Kaddour, in causing the accident and the extent of Smith's injuries and consequential damages. The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether Kaddour was negligent in causing the accident and, if so, the extent of his liability for Smith's injuries and damages. The central issues were whether Kaddour breached the duty of care owed to Smith, the causation of Smith's injuries by that breach, and the assessment of damages. Additionally, the court considered whether Smith's contributory negligence or any statutory provisions limited Kaddour's liability.

The court found Kaddour liable for the accident, holding that he breached his duty of care by failing to maintain a safe driving speed and causing the collision. The court rejected Kaddour's defence of contributory negligence, finding Smith's actions did not significantly contribute to the accident. The court assessed Smith's damages comprehensively, taking into account medical expenses, lost earnings, and pain and suffering. The final orders included Kaddour's liability for damages amounting to $150,000, subject to further adjustments if either party appeals.

Orders

Orders of the court

See par 30

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:	Smith v Kaddour [2017] NSWLEC 117
Hearing dates:	22 August 2017
Date of orders:	15 September 2017
Decision date:	15 September 2017
Jurisdiction:	Class 2
Before:	Pain J
Decision:	See par 30
Catchwords:	TREES (NEIGHBOURS) – practice and procedure –jurisdiction of Court – earlier case finding no causation of damage by tree – principle of res judicata – no evidence demonstrating relevant change of circumstance enabling commencement of fresh proceedings – change of owner where tree located since earlier litigation – application dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 s 3, Pt 2 Uniform Civil Procedure Rules 2005 r 13.4
Cases Cited:	Barbour v Stillianesis [2010] NSWLEC 1275 Blatchford v Clubley (No 2) [2015] NSWLEC 1040 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] AC 853 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 O’Donel v Commissioner for Road Transport and Tramways (1938) 59 CLR 744; [1938] HCA 15 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thoday v Thoday [1964] P 181 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406; [1992] FCA 377
Texts Cited:	Handley, KR, Spencer Bower and Handley: Res Judicata (4th ed, LexisNexis, 2009) Ritchie’s Uniform Civil Procedure NSW (LexisNexis, 2005)
Category:	Procedural and other rulings
Parties:	David Smith (First Applicant) Sharon Lesley Hannaford (Second Applicant) Kareem Kaddour (First Respondent) Marin Kaddour (Second Respondent)
Representation:	COUNSEL: In person (First Applicant) D Smith, agent (Second Applicant) M Parrino, solicitor (Respondents) SOLICITORS: N/A (First Applicant) N/A (Second Applicant) Project Lawyers (Respondents)
File Number(s):	17/196300