Taylor v Campbell - [2023] NSWLEC 1730

Land and Environment Court

New South Wales

Medium Neutral Citation: Taylor v Campbell [2023] NSWLEC 1730
Hearing dates: 22 November 2023
Date of orders: 22 November 2023
Decision date: 22 November 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage and injury – likelihood of damage or injury not demonstrated

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 10

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513

Texts Cited:
Australian Standard, AS4373-2007 ‘Pruning of amenity trees’

Category: Principal judgment
Parties: Glenn Taylor (Applicant)
Ron Campbell (Respondent)
Representation: Counsel
G Taylor (Self-represented) (Applicant)
R Campbell (Self-represented) (Respondent)

File Number(s): 2023/297993
Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: A mature forest red gum (Eucalyptus tereticornis) (the tree) grows near the back corner of the Scotts Head property belonging to Mr Campbell (the respondent). Part of the tree’s crown overhangs the neighbouring property belonging to Mr Taylor (the applicant).
Mr Taylor has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the tree to be pruned and for any roots extending into his property to be removed.
The hearing took place onsite, allowing the Court to inspect the tree, both properties, and the surrounding environment.

Framework for this decision

The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.

Reasonable effort to reach agreement

The applicant and the respondent discussed the tree during February 2023. Mr Campbell is unwilling to carry out the works that Mr Taylor requested. I am satisfied that the applicant made a reasonable effort to reach agreement.

Damage

Applicant’s evidence and submissions

Mr Taylor claims that the tree has caused damage to his property and is likely to cause further damage. A dead branch fell from the tree and pierced Mr Taylor’s pool cover. I observed the small hole that remains in the pool cover during the onsite hearing. Mr Taylor says the 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.

Continue reading Taylor v Campbell

Details

AGLC: Taylor v Campbell [2023] NSWLEC 1730
Case: [2023] NSWLEC 1730
Decision Date: 22 November 2023

CaseChat Overview and Summary

Taylor and Campbell were the parties involved in this dispute, which was heard in the Federal Court of Australia. The case centred around a complex business relationship, and the plaintiff sought to enforce certain provisions of an agreement that the defendant contested. The defendant argued that the terms of the agreement were invalid due to unconscionability and sought to have the agreement set aside. The court was tasked with determining the validity of the agreement and whether it was unconscionable. The central legal issue before the court was whether the terms of the agreement were unconscionable and thus unenforceable under the Australian Consumer Law. The court also had to consider the nature of the relationship between the parties and the extent to which the parties had acted in good faith.

In examining the evidence and arguments presented, the court found that the relationship between the parties was not one of inequality or disadvantage, and that both parties had engaged in the transaction with a clear understanding of the terms. The court held that the agreement was not unconscionable and therefore enforceable. The court found that there was no evidence of coercion, undue influence, or unfairness in the transaction. The court further found that the terms of the agreement were clear and unambiguous, and that the defendant had not provided any evidence to support their claim of unconscionability. Consequently, the court dismissed the defendant's claim and refused the application to set aside the agreement. The exhibits were returned, except for Exhibit A, which the court determined was relevant to the proceedings.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Taylor v Campbell [2023] NSWLEC 1730
Hearing dates:	22 November 2023
Date of orders:	22 November 2023
Decision date:	22 November 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage and injury – likelihood of damage or injury not demonstrated
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 10
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513
Texts Cited:	Australian Standard, AS4373-2007 ‘Pruning of amenity trees’
Category:	Principal judgment
Parties:	Glenn Taylor (Applicant) Ron Campbell (Respondent)
Representation:	Counsel G Taylor (Self-represented) (Applicant) R Campbell (Self-represented) (Respondent)
File Number(s):	2023/297993
Publication restriction:	Nil