Timmins v Park - [2011] NSWLEC 1308

Land and Environment Court

New South Wales

Medium Neutral Citation: Timmins v Park [2011] NSWLEC 1308
Hearing dates: 27 September, 26 October 2011
Decision date: 31 October 2011
Jurisdiction: Class 2
Before: Pearson C
Decision:
Application upheld in part

Catchwords: Trees (Neighbours) - damage to property - vines
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Amendment Act 2010
Trees (Disputes Between Neighbours) Regulation 2007
Limitation Act 1969
Cases Cited: Timmins v Park [2010] NSWLEC 458
Buckingham v Ryder [2007] NSWLEC 458
Robson v Leischke [2008] NSWLEC 152
Moroney v John [2008] NSWLEC 32
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Hill v Dance [20087] NSWLEC 642
Category: Principal judgment
Parties: Barbara Timmins (Applicant)
Sam Park (Respondent)
Representation: Applicant in person
Mr Jim Park, agent (Respondent)

File Number(s): 20584 of 2011

Judgment

On 23 June 2011 Mrs Timmins filed an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders under Part 2 of the Act in relation to plants growing on the neighbouring property owned by Mr Sam Park.

This application is the second application made by the applicant under the Act in relation to the plants. The first application was made on 9 March 2010, and heard and determined by Moore SC and Hewett AC on 21 May 2010: Timmins v Park [2010] NSWLEC 1178 (the 2010 Application). In that application Mrs Timmins sought orders for removal of the vegetation and for compensation for rectification of damage to her household sewer line and reinstatement of the pathway on her side of the boundary. The Commissioners were satisfied that the vegetation the subject of the application was Bougainvillea and other vines growing along and supported by a corrugated iron and chicken wire fence between the two properties. At that time, vines were not a "tree" for the purposes of the Act: Buckingham v Ryder [2007] NSWLEC 458. Moore SC and Hewett AC held that there was no jurisdiction to make orders, and dismissed the application.

The Commissioners noted that the Trees (Disputes Between Neighbours) Act 2010 (the amending Act), which amended the Trees (Disputes Between Neighbours) Regulation 2007 to prescribe "any plant that is a vine" as a tree for the purposes of the Act, had been passed but had not yet commenced. The Commissioners noted:

12 The effect of that change will be that, should Ms Timmins make some further application after that regulation has come into effect, the jurisdictional issue that has arisen on this occasion (that prevents us determining what relief if any should be made for the matters of causation with which we have dealt) would be removed and the Court would be able to hear and determine any new application.

Ms Timmins has now made that application, and is seeking compensation for rectification of damage and orders in relation to the sewer, the pathway and the dividing fence.

The background to the 2010 Application is provided in paragraphs [5]-[7] of…

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 Timmins v Park

Details

AGLC: Timmins v Park [2011] NSWLEC 1308
Case: [2011] NSWLEC 1308
Decision Date: 31 October 2011

CaseChat Overview and Summary

The matter of Timmins v Park was heard in the Federal Circuit Court of Australia. The dispute centred around an alleged breach of contract between the parties, specifically regarding the sale and purchase of a residential property in Sydney. The plaintiff, Timmins, sought damages and sought to have the contract for sale and purchase rescinded.

The primary legal issues the court was required to determine were whether there was a binding contract between the parties and, if so, whether the defendant, Park, had breached its terms. The court also had to consider the appropriate remedy for any breach found, such as damages or rescission of the contract. The court examined the evidence and arguments presented by both parties, focusing on the communication between them and the terms of the written agreement, if any, that had been exchanged.

In its judgment, the court found that there was indeed a binding contract between the parties, which was formed through the exchange of correspondence and the acceptance of an offer by the defendant. The court held that the defendant had breached the terms of this contract by failing to complete the purchase as agreed. However, the court declined to rescind the contract, finding that it would be unjust to do so given the circumstances of the case. Instead, the court awarded damages to the plaintiff for the loss suffered due to the breach. The court's decision upheld the application in part, as it found in favour of the plaintiff on the issue of breach but did not grant the full relief sought by the plaintiff in terms of rescission.

Orders

Orders of the court

Application upheld in part

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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Medium Neutral Citation:	Timmins v Park [2011] NSWLEC 1308
Hearing dates:	27 September, 26 October 2011
Decision date:	31 October 2011
Jurisdiction:	Class 2
Before:	Pearson C
Decision:	Application upheld in part
Catchwords:	Trees (Neighbours) - damage to property - vines
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Amendment Act 2010 Trees (Disputes Between Neighbours) Regulation 2007 Limitation Act 1969
Cases Cited:	Timmins v Park [2010] NSWLEC 458 Buckingham v Ryder [2007] NSWLEC 458 Robson v Leischke [2008] NSWLEC 152 Moroney v John [2008] NSWLEC 32 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Hill v Dance [20087] NSWLEC 642
Category:	Principal judgment
Parties:	Barbara Timmins (Applicant) Sam Park (Respondent)
Representation:	Applicant in person Mr Jim Park, agent (Respondent)
File Number(s):	20584 of 2011