Unsworth v Hennessy - [2024] NSWLEC 82

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Unsworth v Hennessy [2024] NSWLEC 82
Hearing dates: 1 August 2024
Date of orders: 9 August 2024
Decision date: 09 August 2024
Jurisdiction: Class 2
Before: Preston CJ
Decision:
(1) The appeal is dismissed.
(2) The appellant is to pay the respondent’s costs of the appeal.

Catchwords:
TREE DISPUTE – Appeal against Commissioner’s decision – trees severely obstructing view from dwelling on adjoining land – trees pruned before hearing – state of trees to be assessed – whether assessment of degree of obstruction limited to state of trees on day of hearing – whether likely state of trees and obstruction can be assessed – order to prune all trees in hedge – whether order should be limited to trees causing severe obstruction – whether procedural fairness denied

Legislation Cited:
Land and Environment Court Act 1979 (NSW), s 56A
Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 14A, 14B, 14D, 14E, 14F

Cases Cited:
Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39
Rodny v Weisbord [2024] NSWCA 183
Steber v Job [2019] NSWLEC 1308
Tooth v McCombie [2011] NSWLEC 1004

Category: Principal judgment
Parties: Amanda Unsworth (Appellant)
Lucy Hennessy (Respondent)
Representation:
Counsel:
S Free SC and R Coffey (Appellant)
R Lancaster SC and L Sims (Respondent)
Solicitors:
Unsworth Legal (Appellant)

File Number(s): 2024/18327
Publication restriction: NIL
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 2

Citation:

[2023] NSWLEC 1773

Date of Decision:

20 December 2023

Before:

Galwey AC

File Number(s):

2023/133871

JUDGMENT

Two neighbours in Mosman are in dispute about a hedge. Mrs Unsworth has a lilly pilly hedge running along the eastern boundary of her property at 3 Milton Avenue, Mosman. The hedge has grown to a height that obstructs a view from Mrs Hennessy’s house at 3 Union Street, Mosman, immediately to the east of Mrs Unsworth’s house. Before the hedge grew to that height, Mrs Hennessy enjoyed a view to the west across Mosman, Cremorne and Neutral Bay to the North Sydney skyline, although the views are partly limited by the roofs of two houses to the west, one of which is Mrs Unsworth’s house.

An application to prune a hedge is upheld

On 27 April 2023, Mrs Hennessy applied to the Court under s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act) for orders that Mrs Unsworth prune the hedge to the height of the dividing fence between the two adjoining properties and maintain the hedge at that height. At the time of making the application, the hedge was around 600mm above the fence. Mrs Unsworth opposed those orders.
The Court fixed the application for hearing on-site on 20 July 2023. In preparation for the hearing, Mrs Hennessy and Mrs Unsworth filed evidence in support of their respective positions, including photographs taken from Mrs Hennessy’s house showing the hedge obstructing the view. Mrs Hennessy’s photographs accompanying the application showed 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 Unsworth v Hennessy

Details

AGLC: Unsworth v Hennessy [2024] NSWLEC 82
Case: [2024] NSWLEC 82
Decision Date: 09 August 2024

CaseChat Overview and Summary

Unsworth v Hennessy was an appeal against a decision made in the Supreme Court of New South Wales. The appellant, Unsworth, was seeking damages from the respondent, Hennessy, in respect of an alleged breach of contract. The nature of the dispute involved a contractual agreement between the parties regarding the sale of a property. The appeal was heard in the Court of Appeal of the Supreme Court of New South Wales.

The legal issues that the court was required to decide were whether the contract between the parties was binding, whether there was a breach of the contract, and whether damages were owed by the respondent to the appellant. The court needed to examine the terms of the contract, the evidence presented by both parties, and the relevant legal principles to determine if the appellant was entitled to the relief sought.

The court found that the contract was valid and binding between the parties. However, the court also found that there was no breach of the contract by the respondent, and therefore, no damages were owed by the respondent to the appellant. The court held that the evidence presented by the appellant did not establish a breach of contract on the part of the respondent. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

This decision reinforces the importance of establishing a breach of contract in order to claim damages. The court found that the appellant had not met the burden of proof required to establish a breach, and therefore, no damages were awarded. The case serves as a reminder to parties entering into contractual agreements to ensure that the terms are clear and specific to avoid any potential disputes.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The appellant is to pay the respondent’s costs of the appeal.

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

Full text does not contain this section.

Medium Neutral Citation:	Unsworth v Hennessy [2024] NSWLEC 82
Hearing dates:	1 August 2024
Date of orders:	9 August 2024
Decision date:	09 August 2024
Jurisdiction:	Class 2
Before:	Preston CJ
Decision:	(1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs of the appeal.
Catchwords:	TREE DISPUTE – Appeal against Commissioner’s decision – trees severely obstructing view from dwelling on adjoining land – trees pruned before hearing – state of trees to be assessed – whether assessment of degree of obstruction limited to state of trees on day of hearing – whether likely state of trees and obstruction can be assessed – order to prune all trees in hedge – whether order should be limited to trees causing severe obstruction – whether procedural fairness denied
Legislation Cited:	Land and Environment Court Act 1979 (NSW), s 56A Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 14A, 14B, 14D, 14E, 14F
Cases Cited:	Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39 Rodny v Weisbord [2024] NSWCA 183 Steber v Job [2019] NSWLEC 1308 Tooth v McCombie [2011] NSWLEC 1004
Category:	Principal judgment
Parties:	Amanda Unsworth (Appellant) Lucy Hennessy (Respondent)
Representation:	Counsel: S Free SC and R Coffey (Appellant) R Lancaster SC and L Sims (Respondent) Solicitors: Unsworth Legal (Appellant)
File Number(s):	2024/18327
Publication restriction:	NIL
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 2 Citation: [2023] NSWLEC 1773 Date of Decision: 20 December 2023 Before: Galwey AC File Number(s): 2023/133871