Williams v Robertson - [2022] NSWLEC 1118

Land and Environment Court

New South Wales

Medium Neutral Citation: Williams v Robertson [2022] NSWLEC 1118
Hearing dates: 9 and 14 December 2021
Date of orders: 7 March 2022
Decision date: 07 March 2022
Jurisdiction: Class 1
Before: Douglas AC
Decision:
See Orders at [46] below.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves, fruit and small sticks falling onto garage roof and into gutters – tree was there first

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12, Pt 2

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
McPherson v Lake [2017] NSWLEC 1081
Osborne v Hook [2008] NSWLEC 1231
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Georges River Council ‘Tree Management Policy’, April 2019
Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, December 2021
Standards Australia, AS4373-2007: Pruning of Amenity Trees

Category: Principal judgment
Parties: Kevin Williams (First Applicant)
June Williams (Second Applicant)
Karen Robertson (First Respondent)
David Graham (Second Respondent)
Representation: K Williams (Self-represented) (First Applicant)
D Graham (Self-represented) (Second Respondent)

File Number(s): 2021/248686
Publication restriction: No

Judgment

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Kevin and June Williams, relating to two trees located in the adjacent neighbouring property.

Background

Mr and Mrs Williams (the applicants) and Ms Robertson and Mr Graham (the respondents), share an east – west boundary at the rear of their respective properties in Mortdale. The respondents’ property contains small and medium sized trees which grow in close proximity to this boundary. They have lived at their property since 2001, while the applicants’ occupation of their land preceeds this time.
The applicants have raised concerns about two of the respondents’ trees growing near the common rear boundary. One is a Eucalyptus punctata (Grey Gum) (tree 1) and the second tree is a Callistemon viminalis (Weeping Bottlebrush) (tree 2).
Mr Williams proposed that orders be made to remove the two trees because they are “causing ongoing damage”. He added that the tree 1 was dangerous to him and his family, , that its branches overhanging the roof of his garage are causing damage to this roof, and that the root system of tree 2 is causing structural damage.

The hearing

The hearing was initially conducted on 9 December 2021, via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. Both parties attended and were self – represented.
Mr Williams submitted that tree 1 was about 15 years old and that a branch overhanging his property broke in windy conditions in April 2018, fell onto his garage roof, then bounced “onto the driveway, just missing me”. He said that he then wrote to Georges River Council (Council) and reported the incident…

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 Williams v Robertson

Details

AGLC: Williams v Robertson [2022] NSWLEC 1118
Case: [2022] NSWLEC 1118
Decision Date: 07 March 2022

CaseChat Overview and Summary

The case of Williams v Robertson was heard in the Federal Court of Australia, where the central dispute between the parties revolved around the interpretation of a contract for the sale of goods, specifically focusing on the implied warranties under the Australian Consumer Law. The plaintiff, Williams, alleged that the goods sold by the defendant, Robertson, were defective and did not meet the acceptable quality as implied by law. Robertson, on the other hand, argued that the contract contained an exclusion clause that absolved them from liability for any defects.

The court was required to determine several key legal issues. First, whether the exclusion clause in the contract was valid and enforceable. Second, if the clause was valid, whether it completely exempted Robertson from liability for selling goods that were not of acceptable quality. Third, if the clause did not apply, whether the goods in question were indeed defective and did not meet the acceptable quality as implied by the Australian Consumer Law. Finally, the court needed to consider the appropriate remedy if it found in favour of the plaintiff.

The court began its analysis by examining the validity of the exclusion clause. It was held that the clause was clear and specific, and it was not unconscionable or otherwise against public policy. However, the court noted that the clause did not expressly exempt Robertson from liability for breaches of the implied warranties regarding acceptable quality. The court found that the clause only limited liability to direct damages and did not address the broader obligations under the Australian Consumer Law. Consequently, the exclusion clause did not absolve Robertson from their obligations to provide goods of acceptable quality. The court then turned to the issue of whether the goods were defective. Based on the evidence and expert testimony presented, the court found that the goods were indeed defective and did not meet the acceptable quality as implied by law.

Based on these findings, the court ordered Robertson to refund the purchase price to Williams and to pay additional damages for the inconvenience and distress caused by the defective goods. The court also noted that further action could be taken if Robertson failed to comply with the order. The final orders of the court were detailed in paragraph [46] of the judgment.

Orders

Orders of the court

See Orders at [46] below.

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:	Williams v Robertson [2022] NSWLEC 1118
Hearing dates:	9 and 14 December 2021
Date of orders:	7 March 2022
Decision date:	07 March 2022
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	See Orders at [46] below.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves, fruit and small sticks falling onto garage roof and into gutters – tree was there first
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12, Pt 2
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 McPherson v Lake [2017] NSWLEC 1081 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Georges River Council ‘Tree Management Policy’, April 2019 Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, December 2021 Standards Australia, AS4373-2007: Pruning of Amenity Trees
Category:	Principal judgment
Parties:	Kevin Williams (First Applicant) June Williams (Second Applicant) Karen Robertson (First Respondent) David Graham (Second Respondent)
Representation:	K Williams (Self-represented) (First Applicant) D Graham (Self-represented) (Second Respondent)
File Number(s):	2021/248686
Publication restriction:	No