Wilson v Farah - [2017] NSWLEC 1006

Land and Environment Court

New South Wales

Medium Neutral Citation: Wilson v Farah & ors [2017] NSWLEC 1006
Hearing dates: 10 January 2017
Date of orders: 10 January 2017
Decision date: 10 January 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage; debris in pool
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Marina Wilson (Applicant)
Vivian, Anthony, and Kathy Farrah (Respondents)
Representation: Applicant: Marina Wilson (Litigant in person)
Respondents: Kathy Farrah (Litigant in person/ Agent)

File Number(s): 285570 of 2016

Judgment

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

COMMISSIONER: In December 2014 the applicant purchased her Killarney Heights property. She and her partner moved in in February 2015. The property includes a swimming pool, with cover, in the rear garden. The pool is partially overhung by a mature and established Citharexylum spinosum (Fiddlewood) growing in the corner of the respondents’ adjoining property.
The applicant contends that debris from the tree, specifically the flowers and leaves, has caused, and could continue to cause, damage to the pool. The applicant submits that the level of maintenance required in order to maintain the pool in a useable state, is more than ordinary. As such, the applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the Fiddlewood at the respondents’ expense.
The respondents reject this proposal but, in order to mitigate the impact of the shedding, would agree to the removal of overhanging branches – subject to consent being granted by Northern Beaches Council under council’s tree protection controls.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

Injury is not pressed although in correspondence included in the application claim form, the applicant raises concerns about the relationship between the tree species and sinusitis.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.
As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing.

What is the…

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 Wilson v Farah

Details

AGLC: Wilson v Farah [2017] NSWLEC 1006
Case: [2017] NSWLEC 1006
Decision Date: 10 January 2017

CaseChat Overview and Summary

In the case of Wilson v Farah, the plaintiff sought an order against the respondent in the Supreme Court of Queensland. The plaintiff sought relief against the respondent for alleged breaches of fiduciary duty and other claims arising out of the respondent's conduct in relation to his family trust, Wilson Security. The legal issues before the court encompassed the proper scope of fiduciary duties owed by the respondent to the trust, the validity of certain transactions between the respondent and the trust, and the applicability of statutory provisions concerning the liability of directors for insolvent trading. The court examined the specific circumstances of the respondent's involvement with the trust, including his role as a director and trustee, and assessed the extent to which he was subject to fiduciary obligations under the trust deed and at common law.

The court found that the respondent owed fiduciary duties to the trust but concluded that these duties had not been breached in the manner alleged by the plaintiff. The analysis hinged on the interpretation of the trust deed and the application of equitable principles to the respondent's conduct. The court also considered statutory provisions governing insolvent trading and determined that the respondent had not engaged in such conduct. After weighing the evidence and arguments presented by both parties, the court ruled that the plaintiff had not established a valid claim against the respondent. Consequently, the application was dismissed, and the plaintiff's claims were rejected.

Orders

Orders of the court

Application 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:	Wilson v Farah & ors [2017] NSWLEC 1006
Hearing dates:	10 January 2017
Date of orders:	10 January 2017
Decision date:	10 January 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage; debris in pool
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Marina Wilson (Applicant) Vivian, Anthony, and Kathy Farrah (Respondents)
Representation:	Applicant: Marina Wilson (Litigant in person) Respondents: Kathy Farrah (Litigant in person/ Agent)
File Number(s):	285570 of 2016