Land and Environment Court
New South Wales
Medium Neutral Citation: Sund v Bailey [2019] NSWLEC 1166 Hearing dates: 21 February 2019; 1 April 2019 Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [50]
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property – apprehension of injury – views Legislation Cited: Environmental Planning and Assessment Act 1979
Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedures Rules 2005Cases Cited: Ashworth v Joyce [2007] NSWLEC 357
Haindl v Daisch [2011] NSWLEC 1145
Reuben v Lace [2010] NSWLEC 1024
Robson v Leischke [2008] NSWLEC 152
Wisdom v Payne [2011] NSWLEC 1012
Yang v Scerri [2007] NSWLEC 592Texts Cited: NSW Workcover Code of Practice for the Amenity Tree Industry (1998) Category: Principal judgment Parties: Matthew Sund (First Applicant)
Megan Sund (Second Applicant)
Noel Bailey (First Respondent)
Maryanne Bailey (Second Respondent)Representation: Counsel:
L Nurpuri (Respondents)Solicitor:
Other:
WMD Law (Respondents)
M and M Sund, self-represented (Applicants)
File Number(s): 2018/328970 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr and Mrs Sund of Yowie Bay, which relates to a dead Scribbly Gum (Eucalyptus racemosa) (the tree) in the front yard of the adjacent neighbouring property, and also, under s 14 B of Part 2A of the Act, to a hedge located in the rear yard.
Background
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Mr and Mrs Sund purchased their property in October 2015. The common side boundary in the front yard is marked by a low double brick wall, which is displayed in photographs on file exhibiting significant cracking and uplift, within one metre of the base of the tree. These photographs show the tree to be large, with a broad canopy overhanging the applicants’ residence, the respondents’ front yard, and the nature strip beyond. In late 2016, the applicants were granted development application (D.A) approval from Sutherland Council to add an extension, resulting in an incursion by the north-east corner of their dwelling within three metres of the tree base.
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The D.A approval included conditions of consent with respect to management of the tree, and in January, 2017, the Sunds employed AQF level 5 arborist, Mr Rennie, of Rennie Brothers Tree Surgeons, to oversee all tree works. In March 2017, following Council advise, the applicants hand excavated 6-8 cubic metres of soil on their property between the tree and their proposed front extension, to clarify root location. This excavation exposed large roots in line with the cracking and uplift of the boundary wall, and smaller roots in the area of the planned extension.
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In May 2017, the Sunds met with Mr Rennie and Council’s Tree Officer, Mr Smith, where Mr Rennie and Mr Smith agreed that cutting of the smaller roots away from the footprint of the…
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- AGLC
- Sund v Bailey [2019] NSWLEC 1166
- Case
- [2019] NSWLEC 1166
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the interpretation of ambiguous terms within the contract. Specifically, the court had to ascertain the intentions of the parties as expressed in the contract and determine whether the terms were clear enough to be enforced. The court also needed to consider the broader commercial context and the reasonable expectations of the parties. The case raised questions about the principles of contract law, including the importance of clarity in contractual terms and the role of extrinsic evidence in interpreting contracts. The court was tasked with applying established legal principles to resolve the dispute and provide clarity on the enforceability of the contested clauses.
The court meticulously examined the language of the contract and the surrounding circumstances. It held that the contractual terms in question were indeed ambiguous and could not be enforced as written. The court found that the ambiguity arose from the use of vague and imprecise language, which did not sufficiently convey the intentions of the parties. In determining the meaning of the terms, the court considered the context in which the contract was made, including the commercial purpose and the reasonable expectations of the parties. The court concluded that the ambiguity was not capable of resolution through the contract alone and thus, the contract could not be enforced in its current form. The decision underscored the importance of clear and precise language in commercial agreements to avoid disputes over interpretation.
The final orders of the court reflected its findings on the ambiguity and enforceability of the contractual terms. The court ruled that the ambiguous terms were unenforceable and could not be relied upon by either party. The court also directed the parties to attempt to negotiate a resolution to the dispute, with the assistance of a mediator if necessary. This approach aimed to encourage the parties to reach a mutually acceptable agreement, thereby avoiding the need for further litigation. The court's decision provided a clear direction for the parties to address the unresolved issues and potentially revise the contract to reflect their true intentions.
Orders
Orders of the court
See orders at [50]
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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