Teh v Dormer - [2016] NSWLEC 42

Land and Environment Court

New South Wales

Medium Neutral Citation: Teh v Dormer [2016] NSWLEC 42
Hearing dates: 21 April 2016
Decision date: 22 April 2016
Jurisdiction: Class 2
Before: Pepper J
Decision:
Application to extend time to file appeal refused. Applicant to pay respondents’ costs of the application.

Catchwords: PROCEDURE: application for leave to appeal out of time against a decision of a commissioner in Class 2 – delay of nearly 18 months – whether explanation for delay adequate – whether prejudice caused to respondents if leave granted – death of original respondent – whether prejudice to applicant if leave denied – whether fair and reasonable to award costs against the applicant – leave to extend time refused – costs ordered against applicant.
Legislation Cited: Land and Environment Court Act 1979, s 56A
Land and Environment Court Rules 2007, rr 3.7, 7.1, 7.3
Trees (Disputes Between Neighbours) Act 2006, Pt 2
Uniform Civil Procedure Rules 2005, Pt 50
Cases Cited: Bennett (as Trustee for Access Family Trust) v McLoughlin [2013] NSWLEC 1259
Currabubula & Paola v State Bank NSW [2000] NSWSC 232
Hinde v Anderson [2009] NSWLEC 1148
La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 128
Category: Procedural and other rulings
Parties: Steven Tor Leng Teh (Applicant)
Anthony Dormer (First Respondent)
Nigel Russell (Second Respondent)
Representation:
Counsel:
In person (Applicant)
Mr van Ede (solicitor) (First and Second Respondent)
Solicitors:
In person (Applicant)
Emil Ford Lawyers (First and Second Respondent)

File Number(s): 15/21098

Ex Tempore Judgment

Mr Teh Applies for Leave to Appeal a Decision of Commissioners Almost 21 Months After the Decision is Handed Down

On 24 December 2013, Moore SC (as he then was) and Galwey AC dismissed (Bennett (as Trustee for Access Family Trust) v McLoughlin [2013] NSWLEC 1259) an application by Mr Steven Teh and Mr Craig Bennett, (the Trustee for Access Family Trust (“the Trust”)), for orders pursuant to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 in respect of a large Wallangarra White Gum (Eucalyptus scoparia) (“the tree”) located on the property of the then respondent, Mr Brian McLoughlin.
Before the Commissioners the applicants had contended that the roots of the tree had caused damage to their property in a variety of ways, including cracking (see the description of the damage at [3] of the Commissioners’ decision).
Mr McLoughlin has sadly since deceased. He passed away on 17 January 2016. As a consequence, the executors of his estate have been substituted as the respondents, namely, Mr Anthony Dormer and Mr Nigel Russell (“the executors”).
Over 23 months after the decision was handed down, Mr Teh seeks leave to appeal against the decision of the Commissioners under s 56A of the Land and Environment Court Act 1979 (“the LEC Act”). Leave is required because Mr Teh is out of time within which to file his appeal.
Given the extraordinary length of time it has taken Mr Teh to file his…

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.

Keep reading for free

Create a free CaseChat account to read Teh v Dormer and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWLEC 42
Decision Date: 22 April 2016

CaseChat Overview and Summary

The matter before the court involved an application from the appellant, Teh, to extend the time for filing an appeal against a decision rendered in the Supreme Court of Queensland. The respondents, Dormer, opposed the application, asserting that the appellant had failed to demonstrate any grounds for the extension. The case was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether the appellant had provided sufficient justification for the extension of the appeal period. The court was required to consider whether the appellant's reasons for the delay were compelling enough to warrant an extension. The court had to weigh the appellant's explanation against the principles of procedural fairness and the need to maintain the efficiency of the judicial process.

In its decision, the court held that the appellant had not provided adequate grounds for the extension. The court found that the appellant's reasons for the delay were insufficient to justify an extension of the appeal period. The court emphasised the importance of meeting filing deadlines and the need for applicants to demonstrate exceptional circumstances to warrant an extension. Consequently, the court refused the application to extend the time for filing the appeal. Additionally, the court ordered that the appellant pay the respondents' costs incurred in relation to the application.

Orders

Orders of the court

Application to extend time to file appeal refused. Applicant to pay respondents’ costs of the application.

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:	Teh v Dormer [2016] NSWLEC 42
Hearing dates:	21 April 2016
Decision date:	22 April 2016
Jurisdiction:	Class 2
Before:	Pepper J
Decision:	Application to extend time to file appeal refused. Applicant to pay respondents’ costs of the application.
Catchwords:	PROCEDURE: application for leave to appeal out of time against a decision of a commissioner in Class 2 – delay of nearly 18 months – whether explanation for delay adequate – whether prejudice caused to respondents if leave granted – death of original respondent – whether prejudice to applicant if leave denied – whether fair and reasonable to award costs against the applicant – leave to extend time refused – costs ordered against applicant.
Legislation Cited:	Land and Environment Court Act 1979, s 56A Land and Environment Court Rules 2007, rr 3.7, 7.1, 7.3 Trees (Disputes Between Neighbours) Act 2006, Pt 2 Uniform Civil Procedure Rules 2005, Pt 50
Cases Cited:	Bennett (as Trustee for Access Family Trust) v McLoughlin [2013] NSWLEC 1259 Currabubula & Paola v State Bank NSW [2000] NSWSC 232 Hinde v Anderson [2009] NSWLEC 1148 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 128
Category:	Procedural and other rulings
Parties:	Steven Tor Leng Teh (Applicant) Anthony Dormer (First Respondent) Nigel Russell (Second Respondent)
Representation:	Counsel: In person (Applicant) Mr van Ede (solicitor) (First and Second Respondent) Solicitors: In person (Applicant) Emil Ford Lawyers (First and Second Respondent)
File Number(s):	15/21098