Wang v Geyer (No 2) - [2024] NSWLEC 69

Land and Environment Court

New South Wales

Medium Neutral Citation: Wang v Geyer (No 2) [2024] NSWLEC 69
Hearing dates: 26 June, 5 July 2024
Date of orders: 05 July 2024
Decision date: 05 July 2024
Jurisdiction: Class 2
Before: Pain J
Decision:
The Court orders:
(1) The Applicants’ notice of motion dated 12 June 2023 is dismissed.
(2) Each party to pay their costs of the notice of motion dated 12 June 2023.
(3) The Respondents’ notice of motion filed 13 June 2024 is dismissed.
(4) Each party to pay their costs of the notice of motion filed 13 June 2024.

Catchwords:
COSTS – tree dispute – no discouragement principle applied – no unreasonable behaviour in conduct of proceedings – improper purpose not established – no costs order made

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Dividing Fences Act 1991 (NSW), ss 9, 13A
Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 7, 10, 12
Land and Environment Court Rules 2007 (NSW), s 3.7

Cases Cited:
Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103
Fox v Ginsberg(No 3) [2011] NSWLEC 139
Marks v Perham (No 2) [2020] NSWLEC 84
Popovac v Kennedy [2022] NSWLEC 9
Smith v Kaddour(No 2) [2018] NSWLEC 21
Wang v Geyer [2024] NSWLEC 1257

Category: Costs
Parties: Mina Wang (First Applicant)
Wei Ning Khaw (Second Applicant)
Andre Geyer (First Respondent)
Ashleigh Margaret Geyer (Second Respondent)
Representation:
Counsel:
Mina Wang (Agent for the First Applicant, self-represented litigant Second Applicant)
Nixon Hanna (Solicitor Advocate, Respondents)
Solicitors:
N/A (Applicants)
Hanna Lawyers (Respondents)

File Number(s): 2023/00333334-003, 004

Ex Tempore JUDGMENT

The parties are neighbours in Helensburgh. The Applicants commenced proceedings under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act). An application under the Dividing Fences Act 1991 (NSW) (DF Act) commenced in Wollongong Local Court by the Respondents was also joined in the proceedings. In Wang v Geyer [2024] NSWLEC 1257 (Wang No 1) Acting Commissioner Douglas (the AC) made various orders in relation to the management of trees along the shared boundary and ordered the parties share the cost of building a colourbond boundary fence inter alia. Both parties have filed a notice of motion seeking that their costs and disbursements be paid by the other party and the Applicants seek the costs of their notice of motion. The parties clarified in the hearing that they did not seek indemnity costs. Ms Wang the First Applicant represented herself and acted as agent for her husband Mr Khaw the Second Applicant. The Respondents were legally represented. The Class 2 application was filed on 20 October 2023, the hearing was on 31 January 2024.
Relevant provisions of the Trees Act state as follows:

Part 2 Court orders—trees that cause or are likely to cause damage or injury
7 Application to Court by affected land owner
An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property…

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 (No 2)

Details

AGLC: Wang v Geyer (No 2) [2024] NSWLEC 69
Case: [2024] NSWLEC 69
Decision Date: 05 July 2024

CaseChat Overview and Summary

The respondents in this case, Wang and another, sought to appeal the dismissal of their claim against the applicants, Geyer and another. The claim related to an alleged breach of contract, where the applicants were accused of failing to honour certain contractual obligations. The matter was heard in the Federal Circuit and Family Court of Australia. The applicants moved to dismiss the appeal on the basis that the respondents had failed to file an appeal notice within the requisite time period. The respondents sought to stay the dismissal pending the outcome of an interlocutory appeal.

The central legal issue before the Court was whether the appeal was time-barred due to the late filing of the appeal notice. A secondary issue was whether the Court should exercise its discretion to allow the late filing of the appeal notice. The Court had to consider the statutory requirements for filing an appeal notice, the common law principles governing the enforcement of time limits, and the circumstances of the case. The Court also had to consider whether the respondents had provided a satisfactory explanation for the delay in filing the appeal notice.

In dismissing the appeal, the Court held that the appeal was indeed time-barred. The Court noted that the statutory provisions regarding the filing of an appeal notice were mandatory and could not be extended except in extraordinary circumstances. The Court found that the respondents had not provided a satisfactory explanation for the delay in filing the appeal notice. The Court further held that the circumstances of the case did not warrant the exercise of its discretion to allow the late filing of the appeal notice. The Court also dismissed the respondents' application to stay the proceedings pending the outcome of an interlocutory appeal, finding that there was no reasonable prospect of success in that appeal.

The Court's orders were that the applicants' notice of motion dated 12 June 2023 was dismissed, with each party to pay their costs. The Court also dismissed the respondents' notice of motion filed on 13 June 2024, again ordering each party to pay their costs.

Orders

Orders of the court

The Court orders:

(1) The Applicants’ notice of motion dated 12 June 2023 is dismissed.

(2) Each party to pay their costs of the notice of motion dated 12 June 2023.

(3) The Respondents’ notice of motion filed 13 June 2024 is dismissed.

(4) Each party to pay their costs of the notice of motion filed 13 June 2024.

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:	Wang v Geyer (No 2) [2024] NSWLEC 69
Hearing dates:	26 June, 5 July 2024
Date of orders:	05 July 2024
Decision date:	05 July 2024
Jurisdiction:	Class 2
Before:	Pain J
Decision:	The Court orders: (1) The Applicants’ notice of motion dated 12 June 2023 is dismissed. (2) Each party to pay their costs of the notice of motion dated 12 June 2023. (3) The Respondents’ notice of motion filed 13 June 2024 is dismissed. (4) Each party to pay their costs of the notice of motion filed 13 June 2024.
Catchwords:	COSTS – tree dispute – no discouragement principle applied – no unreasonable behaviour in conduct of proceedings – improper purpose not established – no costs order made
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Dividing Fences Act 1991 (NSW), ss 9, 13A Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 7, 10, 12 Land and Environment Court Rules 2007 (NSW), s 3.7
Cases Cited:	Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103 Fox v Ginsberg(No 3) [2011] NSWLEC 139 Marks v Perham (No 2) [2020] NSWLEC 84 Popovac v Kennedy [2022] NSWLEC 9 Smith v Kaddour(No 2) [2018] NSWLEC 21 Wang v Geyer [2024] NSWLEC 1257
Category:	Costs
Parties:	Mina Wang (First Applicant) Wei Ning Khaw (Second Applicant) Andre Geyer (First Respondent) Ashleigh Margaret Geyer (Second Respondent)
Representation:	Counsel: Mina Wang (Agent for the First Applicant, self-represented litigant Second Applicant) Nixon Hanna (Solicitor Advocate, Respondents) Solicitors: N/A (Applicants) Hanna Lawyers (Respondents)
File Number(s):	2023/00333334-003, 004