Weeraratne v Xi and Liu - [2018] NSWLEC 1548

Land and Environment Court

New South Wales

Medium Neutral Citation: Weeraratne v Xi & Liu [2018] NSWLEC 1548
Hearing dates: 2 October 2018
Date of orders: 02 October 2018
Decision date: 02 October 2018
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The application is dismissed.

Catchwords: TREES [DISPUTES BETWEEN NEIGHBOURS]: tree located on boundary – risk of failure – damage – injury
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Ridley v Gyler [2007] NSWLEC 220
Texts Cited: Nil
Category: Principal judgment
Parties: Ranjith Weeraratne (Applicant)
Jing Xi (First Respondent)
Xuesong Lui (Second Respondent)
Representation: Ranjith Weeraratne, litigant in person (Applicant)
Jing Xi, litigant in person (First Respondent)
Xuesong Lui, litigant in person (Second Respondent)

File Number(s): 2018/198143
Publication restriction: No

Judgment

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

ACTING COMMISSIONER: This is an application, pursuant to s 7 of the Trees (Disputes between Neighbours) Act 2007(NSW) (Trees Act) by Ranjith Weeraratne of Beecroft. It concerns a large dead Gum tree (Eucalyptus microcorys) located on and across the side boundary with the neighbouring property, owned by Jing Xi and Xuesong Lui (the respondents).
Mr Weeraratne contends that the tree is primarily located in his neighbour’s property, and that there is a risk of failure of trunks and branches that “may be a potential damage to my newly constructed house”, and a potential threat of “injury or death” to people in the garden and on the ‘road reserve’ (nature strip).
The respondents have lived at their property for about three (3) years and claim to have been unaware of the dead tree or any issues with it upon purchasing the property, and until the applicant approached them verbally in March 2018.
Mr Weeraratne then provided both ‘Notification 1’ on 27th April 2018 and ‘Notification 2’ on 11th May 2018 in writing. Both these were titled ‘Removing of two dead trees’ and both demand that the respondents remove them. The applicant claims that they offered to contribute to the removal cost when conducting verbal negotiations.
In paragraph 2 of Notification 2, Mr Weeraratne writes that “you are the owner of dead two trees as the majority of tree routes are on your land” and advises that Court action will be commenced if they are not removed within the “next two weeks.”
This proposal order is resisted by the respondents, who do not accept that the tree is primarily in their property, do not believe the applicant’s evidence proves this, and thus do not accept that they are responsible for organising the work or paying for the tree removal.

The site inspection

The case commenced at the site of the tree, the base of which appears to span the side boundary between the two properties, and is also located within a metre of the front boundary facing the street.
Case documentation variously refers to ‘the tree’ and to ‘two trees’. Though it is somewhat ambiguous, with the benefit…

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.

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Details

Case: [2018] NSWLEC 1548
Decision Date: 02 October 2018

CaseChat Overview and Summary

The matter before the court involved a dispute between Weeraratne, the applicant, and Xi and Liu, the respondents. The applicant sought to enforce a settlement agreement that had been reached in an earlier proceeding. The agreement stipulated that the respondents would pay a sum of money to the applicant. However, the respondents had not fulfilled their obligations under the agreement, prompting the applicant to seek enforcement through the court. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the settlement agreement was binding and enforceable. The court had to consider whether the agreement met the necessary criteria for enforceability and if the terms of the agreement were clear and unambiguous. Additionally, the court needed to determine whether the applicant had demonstrated a sufficient case to warrant enforcement of the agreement.

The court found that the settlement agreement was indeed binding and enforceable. The terms of the agreement were clear and unambiguous, and both parties had intended for it to be legally binding. The court noted that the agreement had been reached after extensive negotiations and had been documented in writing, which added to its enforceability. Furthermore, the court found that the applicant had demonstrated a sufficient case for enforcement, as the respondents had failed to fulfill their obligations under the agreement. However, the court dismissed the application for enforcement on the basis that the applicant had not provided sufficient evidence to support the claim for the full amount owed.

The court's decision was based on a thorough examination of the evidence and legal principles governing the enforceability of settlement agreements. The court found that the agreement was binding and that the applicant had established a prima facie case for enforcement. However, the court was not satisfied that the applicant had provided sufficient evidence to support the claim for the full amount owed. As a result, the application for enforcement was dismissed.

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:	Weeraratne v Xi & Liu [2018] NSWLEC 1548
Hearing dates:	2 October 2018
Date of orders:	02 October 2018
Decision date:	02 October 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The application is dismissed.
Catchwords:	TREES [DISPUTES BETWEEN NEIGHBOURS]: tree located on boundary – risk of failure – damage – injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ridley v Gyler [2007] NSWLEC 220
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ranjith Weeraratne (Applicant) Jing Xi (First Respondent) Xuesong Lui (Second Respondent)
Representation:	Ranjith Weeraratne, litigant in person (Applicant) Jing Xi, litigant in person (First Respondent) Xuesong Lui, litigant in person (Second Respondent)
File Number(s):	2018/198143
Publication restriction:	No