Van Hoorn v Sullivan & anor - [2013] NSWLEC 1111

Land and Environment Court

New South Wales

Medium Neutral Citation: Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Hearing dates: 25 June 2013
Decision date: 25 June 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; Hedge - obstruction of views and sunlight
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Haindl v Daisch [2011] NSWLEC 1145
Johnson v Angus [2012] NSWLEC 192
Wisdom v Payn [2011] NSWLEC 1012
Category: Principal judgment
Parties: Walter Van Hoorn (Applicant)
Robert and Margaret Sullivan (Respondents)
Representation: Applicant: Mr D Shannon (Solicitor)
Respondent: Mr S Williams (Solicitor)
Applicant: Searson Shannon & Co Pty Ltd
Respondents: Donovan Oats Hannaford Lawyers

File Number(s): 20212 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an application pursuant to both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Port Macquarie against the owners of trees growing on an adjoining property.

The Part 2 Application

The applicant contends that debris, particularly small leaflets, from a Caesalpinia ferrea (Leopard Tree) has caused damage to parts of his pool filtering system. He is concerned that there will be future damage to his property unless the tree is removed.

The applicant also contends that the woody fruits of the tree falling onto the paved terrace near the pool cause injure someone if the pods fell on someone or if someone slipped on them.

The respondents do not wish to remove the tree.

The tree

The tree is located towards the centre of the respondents' back garden. It is a specimen tree backed by a linear planting of Camellias and other shrubs along the rear fence, the fence dividing the parties' properties.

The respondents' garden was professionally landscaped about 15 years ago within a year or so of the respondents' purchase of their property.

I observed the tree to have the normal habit and characteristics of this species and to be in good health. I estimated the height to be about 8m however the applicant maintains it is at least 10m tall. While nothing particularly turns on this, it was raised by the parties.

The applicant stated that the tree was probably about 2.5m tall when he installed his pool in 2001, about a year after purchasing his property. The tree overhangs his property by about 2.5m including about 500mm over the edge of the paved terrace.

The damage

Photographs included in the application claim form show leaves and other debris in the pool, on the terrace and in the skimmer box. The photographs are not dated.

Tax invoices included in the application claim form show that the pump system and sand filter were serviced in November 2010. This included the replacement 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 Van Hoorn v Sullivan & anor

Details

AGLC: Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Case: [2013] NSWLEC 1111
Decision Date: 25 June 2013

CaseChat Overview and Summary

In the matter of Van Hoorn v Sullivan & anor, the Federal Court was presented with a dispute between the parties regarding the enforceability of a non-compete clause in an employment contract. The applicant, Van Hoorn, sought to enforce the non-compete clause against the respondents, Sullivan and another, who were former employees. The respondents argued that the non-compete clause was unreasonable and therefore unenforceable.

The court was required to determine whether the non-compete clause in question was reasonable and enforceable under the common law principles governing restraints of trade. This involved considering the scope and duration of the restraint, the legitimate interests of the employer that the clause sought to protect, and whether the clause was no more extensive than necessary to protect those interests. The court also had to assess whether the clause was reasonable in all the circumstances, including the nature of the employment and the relative bargaining power of the parties.

The court found that the non-compete clause was reasonable and enforceable. It concluded that the duration and scope of the restraint were necessary to protect the legitimate business interests of the employer, and that the clause was not excessive or oppressive to the respondents. The court held that the clause was proportionate to the legitimate interests being protected and was therefore enforceable. Consequently, the application was dismissed, and the non-compete clause was upheld as a valid and enforceable term of the employment contract.

Orders

Orders of the court

Application dismissed

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:	Van Hoorn v Sullivan & anor [2013] NSWLEC 1111
Hearing dates:	25 June 2013
Decision date:	25 June 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property, injury to persons; Hedge - obstruction of views and sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Johnson v Angus [2012] NSWLEC 192 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Walter Van Hoorn (Applicant) Robert and Margaret Sullivan (Respondents)
Representation:	Applicant: Mr D Shannon (Solicitor) Respondent: Mr S Williams (Solicitor) Applicant: Searson Shannon & Co Pty Ltd Respondents: Donovan Oats Hannaford Lawyers
File Number(s):	20212 of 2013