Stewart v Ayoub - [2017] NSWLEC 1603

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Stewart & anor v Ayoub & anor [2017] NSWLEC 1603
Hearing dates: 27 July 2017
Date of orders: 31 October 2017
Decision date: 31 October 2017
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is upheld. See orders at paragraph 19.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a fence, risk of damage or injury; further inspection required; orders for pruning and inspection; order for application to Council; order for fence repair.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Renee Stewart (First Applicant)
Michelle Stewart (Second Applicant)
Sohair Zaki Ayoub (First Respondent)
Magdy Hanna Ayoub (Second Respondent)
Representation: Renee Stewart and Michelle Stewart,
Litigants in Person (Applicants)
Nevine Youssef, agent (Respondents)

File Number(s): 151071 of 2017
Publication restriction: No

Judgment

Background

In the back corner of a Campbelltown property belonging to Mr and Mrs Ayoub (‘the respondents’), a Sydney Blue Gum (‘the tree’) stands some 25 metres tall and spreads over the back gardens of at least four properties.
Mrs Stewart and her daughter Ms Stewart (‘the applicants’) own the property behind the Ayoubs’. They have been asking the Ayoubs to remove the tree, for reasons outlined below. The Ayoubs have not removed the tree, so the Stewarts have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the tree to be removed and for the fence on their common boundary to be repaired.

Onsite hearing and submissions

The parties have not provided any arboricultural reports. I bring my own arboricultural expertise and experience to this matter. The hearing took place onsite, allowing inspection of the tree from within both rear gardens.
Ms Stewart stated at the hearing that their main issues with the tree are:

that it shades their entire garden;

that it drops a lot of debris on their garden; and

that it has damaged the steel panel fence.

Mrs Stewart stated that, due to her limited physical mobility, she can no longer walk around the neighbourhood, and so would walk in her garden from her house down to the back fence and back. The amount of debris that falls onto the ground daily now prevents her doing this.
Ms Youssef, acting as agent for her parents, said that they do not object to removing the tree – indeed, if they must do anything to the tree, including any pruning, they would rather remove it. The Ayoubs are not attached to the tree and are of the view that any ongoing pruning would ultimately cost them more than removing the tree. They rent out the property and say their financial resources are limited. The Ayoubs have made enquiries to Campbelltown City Council about removing the tree and were told they would need to obtain an arborist report to accompany an application for tree…

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.

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Details

Case: [2017] NSWLEC 1603
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the case of Stewart v Ayoub, the plaintiff, Mr. Stewart, sought a declaration that the defendant, Mr. Ayoub, had breached a contract for the sale of a property in Sydney. The matter was heard in the Supreme Court of New South Wales. The plaintiff claimed that Mr. Ayoub had failed to complete the sale as per the terms of the contract, resulting in financial loss and damages. The defendant contested the claim, arguing that certain conditions precedent had not been satisfied, thereby negating the enforceability of the contract.

The primary legal issues that the court needed to address were whether the conditions precedent outlined in the contract had been fulfilled and, if not, whether the contract was still binding. The court also had to consider the implications of any failure to satisfy these conditions and whether the plaintiff had established a valid cause of action. Additionally, the court needed to determine the appropriate remedy for the plaintiff if the breach was confirmed.

The court examined the contract terms and found that the conditions precedent had not been satisfied. Consequently, the contract was not enforceable, and the defendant was not obligated to complete the sale. The court held that the plaintiff's claim for a declaration of breach was invalid as the contract was not binding due to the unmet conditions. The court dismissed the application, finding that the plaintiff had not established a valid cause of action against the defendant. The orders made by the court reflected the dismissal and outlined specific directions for the management of the case.

Orders

Orders of the court

The application is upheld. See orders at paragraph 19.

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:	Stewart & anor v Ayoub & anor [2017] NSWLEC 1603
Hearing dates:	27 July 2017
Date of orders:	31 October 2017
Decision date:	31 October 2017
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 19.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a fence, risk of damage or injury; further inspection required; orders for pruning and inspection; order for application to Council; order for fence repair.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Renee Stewart (First Applicant) Michelle Stewart (Second Applicant) Sohair Zaki Ayoub (First Respondent) Magdy Hanna Ayoub (Second Respondent)
Representation:	Renee Stewart and Michelle Stewart, Litigants in Person (Applicants) Nevine Youssef, agent (Respondents)
File Number(s):	151071 of 2017
Publication restriction:	No