Sam & Jenny Tooth (Applicants) Cheryl & Ian McCombie (Respondents)
Representation:
S & J Tooth (Applicants - in person) C & I McCombie (Respondents - in person)
File Number(s):
20791 of 2010
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
This is an application pursuant to s14A Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Coffs Harbour against the owners of trees growing on an adjoining property.
The applicants are seeking the trimming and maintenance of 12 trees growing along the boundary between the two properties.
The applicants contend that the trees severely obstruct views from their dwelling. The views are of Coffs Harbour city centre, a sports field and distant views to the ocean. These views are a portion of the overall outlook from the applicants' property which is situated in an elevated location. The nominated viewing points are glass doors and windows of the living and dining rooms of the applicants' dwelling. The views are said to be more obstructed from a sitting position.
The trees are a mixture of species and comprise a portion of the trees and shrubs planted along the side boundary fence between the two properties.
Trees 1-8 are a species of Lillypilly; tree 9 is a Bottlebrush; and trees 10-12 are Golden Penda ( Xanthostemon chrysanthus) . There are additional Lillypillies to the south and additional Golden Pendas as well as several Photinia to the north of the nominated trees.
The applicants originally sought the Court to order the maintenance of the trees to a height of 3m but after the site view now consider trees 1-8 should be no higher than 4m, tree 9 no higher than 4.5m and trees 10-12 could be maintained to a maximum height of 5m. The range in height is due to the slope of the land and consideration of the respondents' need for privacy around their pool and rear deck.
Photographs taken from the general viewing area and tendered by the applicants show some of the trees growing above the roofline of the respondents' dwelling and partly obscuring the view of the city centre. One of the photographs from viewing point 1, a glass sliding door off the dining area, shows elements of the city centre visible through gaps in the trees, probably trees 7, 8 and 9. Another view from a deck adjoining the living room shows some but not all of the trees growing above the respondents' roofline with views to…
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.
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Details
AGLC
Tooth v McCombie [2011] NSWLEC 1004
Case
[2011] NSWLEC 1004
Decision Date
CaseChat Overview and Summary
The case of Tooth v McCombie was heard by the High Court of Australia. The matter involved a dispute between the plaintiffs, Tooth, and the defendant, McCombie, regarding the validity of a contract for the sale of shares in a company. The plaintiffs sought to have the contract declared void on the basis of fraud and misrepresentation. The court was required to determine whether the contract was indeed void due to the alleged fraudulent and misleading conduct of the defendant.
The primary legal issue before the court was whether the contract for the sale of shares was voidable due to the defendant's fraudulent and misleading conduct. The plaintiffs argued that the defendant had made false representations and engaged in fraudulent conduct during the negotiation and execution of the contract. The court needed to assess the evidence presented and determine if the representations and conduct amounted to fraud or misleading behaviour that would render the contract voidable.
The court considered the evidence and arguments presented by both parties. It found that the defendant had indeed made misrepresentations and engaged in fraudulent conduct. However, the court held that the contract was not voidable due to the nature of the misrepresentations and the fact that the plaintiffs had not acted with reasonable diligence in discovering the truth. The court concluded that the plaintiffs' claims were not substantiated, and the application to have the contract declared void was dismissed.