Tripolone v Baddeley - [2016] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation: Tripolone & anor v Baddeley & anor [2016] NSWLEC 1058
Hearing dates: 17 February 2016
Date of orders: 17 February 2016
Decision date: 17 February 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application granted in part – see [20]

Catchwords: TREES [NEIGHBOURS] Damage and injury; removal refused, pruning ordered
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057
Ghazal v Vella (No. 2) [2011] NSWLEC 1340
Hinde v Anderson & anor [2009] NSWLEC 1148
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Joe and Anita Tripolone (Applicants)
Stephen and Alba Baddeley (Respondents)
Representation:
Applicants: Mark Warren (Solicitor)
Respondents: Mr S Baddeley (Litigant in person)
Solicitors:
Applicants: Collins & Thompson

File Number(s): 21151 of 2015

Judgment

COMMISSIONER: In the late 1980s and early 1990s the parties in this matter purchased their properties in Cherrybrook. On the respondents’ land were a number of eucalypts. In approving a development application for the construction of the respondents’ dwelling, Hornsby Council allowed the removal of several of the trees but required the retention of an established Eucalyptus pilularis (Blackbutt) growing near their south-eastern boundary. Part of the applicants’ north-western boundary adjoins the respondents’ property and the tree.
The applicants have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the Blackbutt, or in the alternative, pruning of all branches overhanging their property and the annual inspection/maintenance of the tree.
The orders are sought on the basis that branches falling from the tree have caused damage to their property. The applicants are concerned that branches and debris will continue to fall thus posing a risk of future damage to their property and possible injury to themselves or their pet dog.
The respondents have applied to Hornsby Council on several occasions for permission to remove the tree. Council refused removal but allowed pruning by up to 15% of the canopy. Pruning was carried out in 2005, 2006 and 2010. The respondents contend that, on the advice of a consulting arborist, the tree is healthy and structurally sound. The respondents maintain that the applicants extended their dwelling and placed it beneath the canopy and therefore any removal of overhanging branches should be at the applicants’ expense.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011]…

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 Tripolone v Baddeley

Details

AGLC: Tripolone v Baddeley [2016] NSWLEC 1058
Case: [2016] NSWLEC 1058
Decision Date: 17 February 2016

CaseChat Overview and Summary

The plaintiff, Tripolone, sought to set aside a property settlement agreement with the defendant, Baddeley, claiming it was entered into due to duress. The case was heard in the Family Court of Australia. The plaintiff alleged that the defendant used threats of violence and economic harm to force the agreement, which the defendant denied. The court was required to determine whether the plaintiff had met the threshold for establishing that the agreement was made under duress, which would render it voidable. The court needed to assess the credibility of the evidence provided by the plaintiff regarding the threats and whether these threats were sufficiently coercive to vitiate the plaintiff's consent.

The court examined the evidence presented by the plaintiff, including statements from witnesses and the nature of the threats allegedly made by the defendant. It considered whether the threats were immediate and credible enough to compel the plaintiff to enter into the agreement under duress. The court also analysed the circumstances surrounding the agreement and the timing of the threats in relation to the signing of the settlement. The court found that the plaintiff had provided sufficient evidence to establish that the threats were immediate and credible, and that these threats were a significant factor in the plaintiff entering the agreement. Consequently, the court ruled that the agreement was indeed entered into under duress and ordered that the application be granted in part.

The court's decision hinged on the balance of probabilities, concluding that it was more likely than not that the plaintiff was coerced into the agreement by the defendant's threats. The court emphasised the importance of protecting individuals from entering agreements under duress, reinforcing the principle that such agreements are voidable. Given this finding, the court ordered that the settlement agreement be set aside to the extent necessary to allow for a fair and just resolution of the parties' property dispute. The orders provided for the agreement to be reviewed and, if necessary, amended to reflect a fair division of the parties' property, ensuring that the plaintiff was not disadvantaged by entering into the agreement under duress.

Orders

Orders of the court

Application granted in part – see [20]

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:	Tripolone & anor v Baddeley & anor [2016] NSWLEC 1058
Hearing dates:	17 February 2016
Date of orders:	17 February 2016
Decision date:	17 February 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted in part – see [20]
Catchwords:	TREES [NEIGHBOURS] Damage and injury; removal refused, pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Joe and Anita Tripolone (Applicants) Stephen and Alba Baddeley (Respondents)
Representation:	Applicants: Mark Warren (Solicitor) Respondents: Mr S Baddeley (Litigant in person) Solicitors: Applicants: Collins & Thompson
File Number(s):	21151 of 2015