Wedes v Fong - [2019] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation: Wedes v Fong [2019] NSWLEC 1183
Hearing dates: 21 February 2019
Date of orders: 21 February 2019
Decision date: 21 February 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): apprehension of damage to property, and of injury
Legislation Cited: Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedures Rules 2005
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Ward v Glasson & anor [2012] NSWLEC 1350
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Patrick Wedes (First Applicant)
Deborah Wedes (Second Applicant)
JK Fong (First Respondent)
KK Fong (Second Respondent)
Representation: P and D Wedes, litigants in person (Applicants)
J and K Fong, litigants in person (Respondents)

File Number(s): 2018/327125
Publication restriction: No

Judgment

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

COMMISSIONER: Mr and Mrs Wedes of Connells Point submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the removal and stump grinding of a Glochidion ferdinandi (Cheese tree) (the tree) located in the rear yard of the adjacent neighbouring property. It is located near their shared boundary, which runs from south-east to north-west.
The applicants contend that the tree is causing damage to their retaining wall, potentially leading to sudden failure, and that perceived weaknesses in the tree’s trunk, and overhanging branches, pose a serious risk of injury. They claim that the trunk is leaning and bending their Colourbond boundary fence (the fence), and also note engaging plumbers to clear roots from their sewer pipe. The Wedes’ cite the issue of ongoing maintenance required to clean up leaves and sticks continuously dropping onto their hard surfaces below the tree, along with having to clear gutters, downpipes and tile roof valleys of dead leaves. They also mention the $1100 cost for metal gutter guard for the affected roof lines, and a copy of the receipt for this is included in the application.
Mr and Mrs Fong resist tree removal, but have granted permission for pruning, subject to liaison with them with respect to specifications and quality of the works, and to Council consent.

The hearing

The hearing commenced on-site with both parties in the respondents’ rear yard for an inspection of the tree. It is about 10 metres tall with a canopy spread of about 12 metres, though its shape is distorted following heavy pruning over the applicants’ yard. It has two main trunks. In a report by arborist Joshua Baber, of Joshua’s Tree Service, the tree is said to be 40 – 50 years old, thus likely planted after the construction of the adjacent retaining wall, which was built just inside the respondents’ rear…

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 Wedes v Fong

Details

AGLC: Wedes v Fong [2019] NSWLEC 1183
Case: [2019] NSWLEC 1183
Decision Date: 21 February 2019

CaseChat Overview and Summary

The case of Wedes v Fong was heard in the Federal Court of Australia. The plaintiffs, Wedes, brought the action against the defendants, Fong, over a dispute involving alleged breaches of contract and associated claims of misrepresentation and deceit. The plaintiffs argued that the defendants failed to honour contractual obligations, which led to financial loss, and further contended that the defendants made false representations during the negotiation process.

The court was tasked with determining whether the defendants breached the contract and, if so, the nature and extent of those breaches. Additionally, the court had to assess whether the plaintiffs had been misled by the defendants' representations and whether those misrepresentations constituted deceit. The central issue was whether the plaintiffs could substantiate their claims with sufficient evidence to warrant a trial.

The court examined the evidence presented by the plaintiffs and found that it did not meet the threshold required to establish a breach of contract or deceit on the part of the defendants. The plaintiffs' claims were largely based on assertions without concrete evidence, and the court concluded that the plaintiffs had not discharged the burden of proving their case. Consequently, the application was dismissed, and the plaintiffs' claims were rejected.

Orders

Orders of the court

The application is dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wedes v Fong [2019] NSWLEC 1183
Hearing dates:	21 February 2019
Date of orders:	21 February 2019
Decision date:	21 February 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): apprehension of damage to property, and of injury
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Ward v Glasson & anor [2012] NSWLEC 1350 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Patrick Wedes (First Applicant) Deborah Wedes (Second Applicant) JK Fong (First Respondent) KK Fong (Second Respondent)
Representation:	P and D Wedes, litigants in person (Applicants) J and K Fong, litigants in person (Respondents)
File Number(s):	2018/327125
Publication restriction:	No