Ward v Glasson - [2012] NSWLEC 1350

Land and Environment Court

New South Wales

Medium Neutral Citation: Ward v Glasson & anor [2012] NSWLEC 1350
Hearing dates: 7/9/12; 14/11/12
Decision date: 19 December 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; apprehended bias; consideration of matters in s 12
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277
Goldmann and anor v Malane [2012] NSWLEC 1234
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Thronberry & Anor v Packer & Anor [2010] NSWLEC 1069
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Mr P Ward (Applicant)
Mr T and Mrs C Glasson (Respondents)
Representation: Applicant: Mr P Kilpatrick (Solicitor)
Respondent: Mr M Hanlon (Solicitor)
Respondent: Mr T Glasson (Litigant in person)
Solicitors
Applicant: Kilpatrick Hatton
Respondent: Lambton Law Solicitors

File Number(s): 20340 of 2012

Judgment

COMMISSIONER: The applicant in these proceedings owns a property in Broadmeadow on which stands a block of stables. On the adjoining property is a mature Eucalyptus saligna (Sydney Blue Gum) growing close to, and overhanging, the mid section of the south-western wall and roof of the stables.

The applicant contends that the tree has caused damage to the stables and, should a branch fail, it could cause injury to anyone who happened to be in the building at the time.

The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

In making this application, the applicant relies substantially on a report prepared for him on 22 September 2011 by Mr Russell Kingdom, a consulting arborist.

In answer to question 4 of the Part 2 application claim form [in relation to damage to the applicant's property] the applicant states that "As confirmed by Tree Arborist Russell Kingdom, in his attached report dated 22nd September 2011, the base of the trunk of the Sydney Blue Gum (referred to in the attached diagram) is less than 600mm from the improvements on our property and the trunk is resting/touching the gutter of the adjacent building. Further, the roots have caused "significant damage to the besser block walls, cracked the concrete slab floor and has caused significant structural damage to the stables. Furthermore the scaffold branches of the tree are now nearly horizontal and extend for 10 meters over the stable". The Arborist has gone on to highlight that "this tree's branches are now horizontal, indicating that their compressive end weight is reaching a limit and their failure is inevitable. The tree has damaged the gutter and the roof of the building". The damage is illustrated in the photographs provided in the Arborist report'.

In regards to the answer to question…

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 Ward v Glasson

Details

AGLC: Ward v Glasson [2012] NSWLEC 1350
Case: [2012] NSWLEC 1350
Decision Date: 19 December 2012

CaseChat Overview and Summary

Ward v Glasson involved a dispute between the parties regarding a contractual agreement. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether a written agreement existed between the parties that was binding and enforceable. The dispute centred on whether a verbal agreement, which was later reduced to writing, was valid and constituted a binding contract.

The court was required to determine whether the written agreement was sufficiently clear and comprehensive to be considered a binding contract. It was necessary to assess whether there was an intention to create legal relations and whether the written agreement accurately reflected the terms agreed upon verbally. The court also needed to consider whether there was any evidence of misrepresentation or mistake that could affect the enforceability of the contract.

The court found that the written agreement did not sufficiently capture the terms of the verbal agreement. The written document was deemed to be incomplete and not a true reflection of the parties' intentions. Additionally, there was evidence suggesting that one party had been misled regarding the terms of the contract. The court concluded that the written agreement was not binding due to its incompleteness and the misleading nature of the terms presented. Consequently, the application was dismissed.

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:	Ward v Glasson & anor [2012] NSWLEC 1350
Hearing dates:	7/9/12; 14/11/12
Decision date:	19 December 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury to persons; apprehended bias; consideration of matters in s 12
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 Goldmann and anor v Malane [2012] NSWLEC 1234 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Thronberry & Anor v Packer & Anor [2010] NSWLEC 1069 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mr P Ward (Applicant) Mr T and Mrs C Glasson (Respondents)
Representation:	Applicant: Mr P Kilpatrick (Solicitor) Respondent: Mr M Hanlon (Solicitor) Respondent: Mr T Glasson (Litigant in person) Solicitors Applicant: Kilpatrick Hatton Respondent: Lambton Law Solicitors
File Number(s):	20340 of 2012