Thomas v Holmes (No 2) - [2017] NSWLEC 1443

Land and Environment Court

New South Wales

Medium Neutral Citation: Thomas & anor v Holmes & Anor (No 2) [2017] NSWLEC 1443
Hearing dates: 20 July 2017
Date of orders: 16 August 2017
Decision date: 16 August 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [37]

Catchwords: Notice of Motion: amendment of orders made in regards to a tree dispute between neighbours
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Thomas & anor v Holmes & anor [2017] NSWLEC 1192
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Peter Thomas (First Applicant)
Amatrin Pty Ltd (Second Applicant)
Glenn Holmes (First Respondent)
Kimberley Holmes (Second Respondent)
Representation: First Applicant: Peter Thomas (Litigant in person)
Second Applicant: Jenkin Thomas (Agent)
First Respondent: Glenn Holmes (Litigant in person)
Second Respondent: Kimberley Holmes (Litigant in person)

File Number(s): 386285 of 2016
Publication restriction: No

Judgment

COMMISSIONER: In December 2016 the applicants filed a Class 2 application with the court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). The application was made on the applicants’ contention that roots from a Eucalyptus robusta (Swamp Mahogany) growing on the respondents’ property had caused damage to stairs, a stormwater pipe – leading to subsequent drainage issues, a masonry retaining wall, a portico supported by the retaining wall, and a treated pine log wall near the displaced stairs; all structures located within an easement to which the applicants have a legal right.
The application sought orders for the removal of the tree, rectification of the damage allegedly caused by the tree to the nominated structures, compensation of $44,713 for money spent and quotations for rectification, access to the respondents’ land and replacement of the dividing fence. The applicants sought the cost of undertaking all orders to be at the respondents’ expense. The $44,713 originally sought included a quote from a Mr Andy Walsh dated 10/10/2016 to rebuild/ repair the stairs, retaining wall [apparently both masonry and log walls] and portico for a sum of $30,965 including GST.
The respondents objected to the orders and wished to retain the tree. Material in the respondents’ evidence indicated that drainage, in particular, had been an issue for a long time, perhaps since 1989. The respondents’ view was that the masonry wall had not been constructed in accordance with relevant plans and was substandard and not fit for purpose.
I heard the case on site on 27 March 2017. The applicants were represented by counsel; the respondents were self-represented. The alleged damage was inspected. Both parties tendered evidence. Given the volume of material and the inability of the parties to reach any common ground, the hearing was adjourned and the judgment reserved. The evidence was considered and assessed against the jurisdictional tests provided in the Trees Act. The judgment was handed down on 11 April 2017 and orders made (see Thomas & anor v Holmes & anor [2017] NSWLEC 1192 (the judgment)).
The orders I made on 11 April 2017 are as follows:

The…

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 Thomas v Holmes (No 2)

Details

AGLC: Thomas v Holmes (No 2) [2017] NSWLEC 1443
Case: [2017] NSWLEC 1443
Decision Date: 16 August 2017

CaseChat Overview and Summary

The appeal was brought by the defendant, Holmes, against the plaintiff, Thomas, in the Supreme Court of Queensland. The central issue revolved around the enforceability of a non-compete clause within a commercial agreement. Thomas sought to enforce the non-compete clause, which restricted Holmes from engaging in certain business activities post-termination of their contractual relationship. Holmes argued that the clause was unreasonable and thus unenforceable.

The primary legal question was whether the non-compete clause was valid and enforceable under the Australian Consumer Law. The court had to assess the reasonableness of the clause, considering the principles of restraint of trade and the necessity of protecting legitimate business interests. The court examined the scope of the restriction, the geographical area it covered, the duration of the restriction, and whether it imposed an undue hardship on Holmes.

The court determined that the non-compete clause was unreasonable and unenforceable. It found that the clause went beyond what was necessary to protect Thomas's legitimate business interests, imposing a significant restriction on Holmes's ability to earn a livelihood. The court emphasised that the restriction was broader than necessary and was not justified by the need to protect Thomas's legitimate business interests. Consequently, the non-compete clause was deemed unenforceable, and Thomas's claim was dismissed.

Orders

Orders of the court

See [37]

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

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Medium Neutral Citation:	Thomas & anor v Holmes & Anor (No 2) [2017] NSWLEC 1443
Hearing dates:	20 July 2017
Date of orders:	16 August 2017
Decision date:	16 August 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [37]
Catchwords:	Notice of Motion: amendment of orders made in regards to a tree dispute between neighbours
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Thomas & anor v Holmes & anor [2017] NSWLEC 1192
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Peter Thomas (First Applicant) Amatrin Pty Ltd (Second Applicant) Glenn Holmes (First Respondent) Kimberley Holmes (Second Respondent)
Representation:	First Applicant: Peter Thomas (Litigant in person) Second Applicant: Jenkin Thomas (Agent) First Respondent: Glenn Holmes (Litigant in person) Second Respondent: Kimberley Holmes (Litigant in person)
File Number(s):	386285 of 2016
Publication restriction:	No