Toulson v Kuan - [2025] NSWLEC 1072

Land and Environment Court

New South Wales

Medium Neutral Citation: Toulson v Kuan [2025] NSWLEC 1072
Hearing dates: 22 October 2024
Date of orders: 11 February 2025
Decision date: 11 February 2025
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – apprehension of damage and injury – debris falling onto applicant’s land – significant environmental contributions under s 12

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 8, 9, 10, 12
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Garbutt v Nichols [2025] NSWLEC 1035
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Parramatta Development Control Plan 2023

Category: Principal judgment
Parties: Nigel Peter Toulson (Applicant)
Yeh Sheng Kuan (Respondent)
Representation: N Toulson (Self-represented) (Applicant)
R Karlaftis (Agent) (Respondent)

File Number(s): 2024/316537
Publication restriction: Nil

JUDGMENT

COMMISSIONER: Edward Toulson and Yeh Sheng Kuan (the respondent) own neighbouring properties in North Rocks that share a side boundary. As Mr Edward Toulson was 95 years old, his son, Nigel Peter Toulson (Mr Toulson) (the applicant), represented Mr Edward Toulson. The respondent's property was leased to tenants and was managed by Ms Karlaftis of First National Real Estate Homeway, Castle Hill.
The canopy of a large weeping fig tree (the tree) growing near the common boundary had branches extending over the front yards of both properties. In an initial email to Ms Karlaftis on 28 May 2024, Mr Toulson advised that the tree was encroaching almost 10 m over the common property boundary. The applicant requested that Ms Karlaftis or Mr Kuan "organise to have the fig tree pruned to the property boundary or removed". Ms Karlaftis replied that, "[t]rimming back anything hanging over is to your discretion and expense. This includes removal and [I] believe there is a limit of 10% per year, according to council - depending on the species of the tree".
Ms Karlaftis forwarded the applicant's email to Mr Kuan and advised the applicant that Mr Kuan had recently pruned high branches overhanging Mr Kuan's property from Mr Toulson’s father's trees near the common boundary, so as to restore Mr Kuan's roof. Ms Karlaftis noted such tree works were undertaken at Mr Kuan's expense, "being that we are all responsible for our own yard".
Upon receiving a reply from Mr Kuan, Ms Karlaftis advised Mr Toulson on 4 June 2024, that Parramatta City Council (Council) had refused an application from Mr Kuan in 2008 for removal of the tree. Ms Karlaftis added that Mr Toulson was welcome to again apply to Council, and "you are within your right" to cut back 10% of the tree's canopy from your side, at your expense".
On 7 June 2024, the applicant contacted a Community Justice Centre (CJC).…

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 Toulson v Kuan

Details

AGLC: Toulson v Kuan [2025] NSWLEC 1072
Case: [2025] NSWLEC 1072
Decision Date: 11 February 2025

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Toulson filed an application against Kuan seeking an order that Kuan's legal proceedings against Toulson be stayed on the basis of an arbitration agreement. Kuan, in turn, sought an order for Toulson's application be dismissed with costs. The legal dispute centred around the enforceability of an arbitration agreement, and whether Kuan's proceedings should be stayed pending the outcome of arbitration. The court had to determine the validity and applicability of the arbitration agreement and whether it precluded Kuan from pursuing his claims in court.

The court considered the existence and scope of the arbitration agreement, and whether it was valid and enforceable. It examined whether Kuan's claims fell within the scope of the agreement and whether there were any valid reasons for not proceeding with arbitration. The court also considered the principle of separability, which holds that an arbitration clause can be enforced even if the contract containing it is invalid for some reason. The court found that the arbitration agreement was valid and enforceable, and that Kuan's claims fell within the scope of the agreement. The court further found that there were no valid reasons for Kuan to avoid arbitration.

Consequently, the court dismissed Toulson's application and ordered that Kuan's legal proceedings against Toulson be stayed pending the outcome of arbitration. The court held that the arbitration agreement was valid and enforceable, and that Kuan's claims fell within the scope of the agreement. The court further held that there were no valid reasons for Kuan to avoid arbitration. Therefore, Kuan's proceedings against Toulson were stayed, and Toulson was ordered to pay Kuan's costs of the application.

Orders

Orders of the court

The Court orders that:

(1) The application is refused.

Background

Background to the litigation

Full text does not contain this section.

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:	Toulson v Kuan [2025] NSWLEC 1072
Hearing dates:	22 October 2024
Date of orders:	11 February 2025
Decision date:	11 February 2025
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – apprehension of damage and injury – debris falling onto applicant’s land – significant environmental contributions under s 12
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 8, 9, 10, 12 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Garbutt v Nichols [2025] NSWLEC 1035 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Parramatta Development Control Plan 2023
Category:	Principal judgment
Parties:	Nigel Peter Toulson (Applicant) Yeh Sheng Kuan (Respondent)
Representation:	N Toulson (Self-represented) (Applicant) R Karlaftis (Agent) (Respondent)
File Number(s):	2024/316537
Publication restriction:	Nil