Vethanayagam v Nelson - [2024] NSWLEC 1065

Land and Environment Court

New South Wales

Medium Neutral Citation: Vethanayagam v Nelson [2024] NSWLEC 1065
Hearing dates: 28 September 2023
Date of orders: 21 February 2024
Decision date: 21 February 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – row of trees along boundary wall – whether the trees have caused damage – whether the trees are likely to cause damage – application refused

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 5, 7, 10, 12

Cases Cited:
Fang v Li & anor [2017] NSWLEC 1503
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Australian Standard AS2870-2011 Residential Slabs and Footings
CSIRO, Foundation Maintenance and Footing Performance (2021)

Category: Principal judgment
Parties: Bella Padie Vethanayagam (Applicant)
Larry John Nelson (First Respondent)
Elizabeth Dacres Nelson (Second Respondent)
Representation:
Counsel:
A Vethanayagam (Agent) (Applicant)
A Cox (Solicitor) (Respondents)
Solicitors:
Tony Cox Lawyers & Conveyancers (Respondents)

File Number(s): 2023/238748
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Bella Vethanayagam (the applicant) and Dr Arichandiran Vethanayagam live at their large residential property in King Creek, where they built a low concrete wall (the wall) along their eastern boundary. Their neighbours, Elizabeth and Larry Nelson (the respondents), have a row of small lilly pillies (the trees) on their property between their long bitumen driveway and the wall. The trees were planted less than a metre from the wall by the previous owners of the respondents’ property.
The applicant alleges that the trees have damaged the boundary wall, and will cause further damage in the near future. She applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the removal of the trees, 19 in total. The respondents refute that the trees have caused or will cause damage. They proposed that, if the Court is to make orders, such orders should be for the respondents to maintain the trees so that they are no taller than the boundary wall, and so that they do not contact the boundary wall nor spread to form a continuous canopy.
The respondents’ proposed orders included an order for costs. During the hearing, the applicant also asked for a costs order, although this was not in her application. Commissioners of the Court cannot order costs.

The hearing

The hearing took place onsite with the applicant represented by her husband, Dr Vethanayagam, and Mr Cox representing the respondents. Several affidavits and reports had been filed with the Court: a report by Joshua Dennis, an engineer, and reports and affidavits by others who also gave oral evidence during the hearing:

Graham Roberts – engineer

Ashley Corbett – builder

Dale Carr – engineer

Rhys Mackney – arborist

Sam Andrews – neighbour

Framework for this decision

The key jurisdictional tests in these proceedings are found…

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 Vethanayagam v Nelson

Details

AGLC: Vethanayagam v Nelson [2024] NSWLEC 1065
Case: [2024] NSWLEC 1065
Decision Date: 21 February 2024

CaseChat Overview and Summary

The parties involved in this case were Vethanayagam, the applicant, and Nelson, the respondent. The matter was heard in the Supreme Court of Victoria and centred around an application for an injunction to prevent the respondent from publishing certain content. The applicant sought to restrain the respondent from publishing information that they believed was defamatory and false. The court was tasked with deciding whether the applicant had met the threshold requirements for an interlocutory injunction.

The primary legal issues before the court involved the criteria for granting an interlocutory injunction. The court considered whether the applicant had demonstrated a serious question to be tried, whether the balance of convenience favoured the applicant, and whether there was a risk of irreparable harm if the injunction was not granted. The respondent argued that the application should be dismissed on the basis that the applicant had not established the necessary prima facie case for defamation and that the applicant's case was not strong enough to warrant an injunction.

The court found that the applicant had not demonstrated a serious question to be tried. The judge held that the evidence presented did not establish the essential elements of defamation and that the applicant's case was speculative at best. Furthermore, the court concluded that the balance of convenience did not favour the applicant, as the potential harm to the respondent outweighed any potential harm to the applicant. Consequently, the application for an interlocutory injunction was refused, and the exhibits were returned, except for Exhibit A.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Vethanayagam v Nelson [2024] NSWLEC 1065
Hearing dates:	28 September 2023
Date of orders:	21 February 2024
Decision date:	21 February 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – row of trees along boundary wall – whether the trees have caused damage – whether the trees are likely to cause damage – application refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 5, 7, 10, 12
Cases Cited:	Fang v Li & anor [2017] NSWLEC 1503 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Australian Standard AS2870-2011 Residential Slabs and Footings CSIRO, Foundation Maintenance and Footing Performance (2021)
Category:	Principal judgment
Parties:	Bella Padie Vethanayagam (Applicant) Larry John Nelson (First Respondent) Elizabeth Dacres Nelson (Second Respondent)
Representation:	Counsel: A Vethanayagam (Agent) (Applicant) A Cox (Solicitor) (Respondents) Solicitors: Tony Cox Lawyers & Conveyancers (Respondents)
File Number(s):	2023/238748
Publication restriction:	Nil