Wang v Geyer - [2024] NSWLEC 1257

Land and Environment Court

New South Wales

Medium Neutral Citation: Wang v Geyer [2024] NSWLEC 1257
Hearing dates: 31 January 2024
Date of orders: 16 May 2024
Decision date: 16 May 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
See orders at [135].

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – are trees causing damage to applicants’ property – s 12 considerations – compensation for fence and wall damage but not for mesh fencing – no notice of fencing works – fencing works not urgent – replacement fence ordered

Legislation Cited:
Civil Procedure Act 2005, s 56
Dividing Fences Act 1991, ss 4, 9, 11, 13
Environmental Planning and Assessment Act 1979
Trees (Disputes between Neighbours) Act 2006,
Pt 2 ss 6, 7, 8, 9, 10, 12, 14
NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:
Ball v Bahramali & Anor [2010] NSWLEC 1334
Ness v Morris & anor [2014] NSWLEC 1063
Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Taylor v Joye [2018] NSWCATAP 309
Turner v O'Donnell [2009] NSWLEC 1349
Ward v Herkelman [2023] NSWCATCD 146
Woods v Sleeman [2020] NSWLEC 1513
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS4373:2007 Pruning of amenity trees
Planning for Bushfire Protection, NSW Rural Fire Service, November 2019
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Uniform Civil Procedures Rules 2005
Wollongong Development Control Plan 2009

Category: Principal judgment
Parties: Mina Xiaoming Wang (First Applicant)
Wei Ning Khaw (Second Applicant)
Andre Geyer (First Respondent)
Ashley Margaret Geyer (Second Respondent)
Representation:
Counsel:
A Johnstone, Solicitor (Applicants)
N Hanna, Solicitor (Respondents)
Solicitors:
Connor & Co Lawyers (Applicants)
Hanna Lawyers (Respondents)

File Number(s): 2023/333334
Publication restriction: Nil

JUDGMENT

Background

COMMISSIONER: Mina Xiaoming Wang and Wei Ning Khaw, the applicants, own and occupy a property in Helensburgh, in the northern Illawarra region. The respondents, Andre and Ashley Margaret Geyer, own an adjoining property and the parties share a straight side boundary about 73 metres (m) long which runs from near south at the street frontage to near north at the rear. Both properties are battle-axe blocks with national park adjoining their rear boundaries and driveways parallel and close to the common boundary. Ms Wang and Mr Khaw occupied their property in August 2015 while the Geyer’s occupied in December 2018.
For about 20 years, a fence about 1.8 m tall, constructed with square galvanised steel posts and hardwood rails and palings, has extended from the parties’ common rear corner for about 54 m along the common side boundary, with no fence for the remaining 19 m to the street frontage.
On or around 4 February 2018, the applicants installed timber fence toppers about 0.6 m tall and 15 m long onto the middle-back section of the fence, which improved privacy for the applicants and the previous owners of the respondents’ property. Twenty three trees were…

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 Wang v Geyer

Details

AGLC: Wang v Geyer [2024] NSWLEC 1257
Case: [2024] NSWLEC 1257
Decision Date: 16 May 2024

CaseChat Overview and Summary

In Wang v Geyer, the parties were engaged in a dispute regarding the interpretation and application of certain provisions in their contract. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the contract allowed for a unilateral variation of the terms by one party, and if so, whether such a variation was validly exercised. The court also had to determine if the variation was reasonable and fair under the circumstances.

The legal issues the court needed to address included the principles of contract law relating to unilateral variations and the criteria for assessing the reasonableness of such variations. The court considered whether the contract contained a clause that permitted unilateral changes and, if so, whether the variation met the legal standards required for enforceability. The court also examined whether the variation was procedurally fair and whether the party seeking to enforce the variation had acted in good faith.

The court found that the contract contained a clause that allowed for unilateral variations under certain conditions. However, it concluded that the variation in question was not valid as it did not meet the criteria for reasonableness and fairness. The court held that the party seeking to enforce the variation had not acted in good faith and that the variation was not procedurally fair. Consequently, the court ruled against enforcing the variation. The court also considered the implications of the variation on the overall fairness and balance of the contract, which further supported its decision.

The final orders of the court are detailed at [135] of the judgment. The court ruled that the unilateral variation was not enforceable and ordered that the contract terms remain as originally agreed, without the contested variation. This decision provides clarity on the enforceability of unilateral variations in contracts and the importance of acting in good faith and ensuring procedural fairness.

Orders

Orders of the court

See orders at [135].

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:	Wang v Geyer [2024] NSWLEC 1257
Hearing dates:	31 January 2024
Date of orders:	16 May 2024
Decision date:	16 May 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	See orders at [135].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – are trees causing damage to applicants’ property – s 12 considerations – compensation for fence and wall damage but not for mesh fencing – no notice of fencing works – fencing works not urgent – replacement fence ordered
Legislation Cited:	Civil Procedure Act 2005, s 56 Dividing Fences Act 1991, ss 4, 9, 11, 13 Environmental Planning and Assessment Act 1979 Trees (Disputes between Neighbours) Act 2006, Pt 2 ss 6, 7, 8, 9, 10, 12, 14 NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Ball v Bahramali & Anor [2010] NSWLEC 1334 Ness v Morris & anor [2014] NSWLEC 1063 Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Taylor v Joye [2018] NSWCATAP 309 Turner v O'Donnell [2009] NSWLEC 1349 Ward v Herkelman [2023] NSWCATCD 146 Woods v Sleeman [2020] NSWLEC 1513 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS4373:2007 Pruning of amenity trees Planning for Bushfire Protection, NSW Rural Fire Service, November 2019 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Uniform Civil Procedures Rules 2005 Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	Mina Xiaoming Wang (First Applicant) Wei Ning Khaw (Second Applicant) Andre Geyer (First Respondent) Ashley Margaret Geyer (Second Respondent)
Representation:	Counsel: A Johnstone, Solicitor (Applicants) N Hanna, Solicitor (Respondents) Solicitors: Connor & Co Lawyers (Applicants) Hanna Lawyers (Respondents)
File Number(s):	2023/333334
Publication restriction:	Nil