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Win v Cao

Win v Cao

Case [2024] NSWLEC 1003 16 January 2024

Appeal

Jurisdiction

Refusal of Application

Civil Litigation & Procedure

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Land and Environment Court

New South Wales

Medium Neutral Citation: Win v Cao [2024] NSWLEC 1003
Hearing dates: 24 August 2023
Date of orders: 16 January 2024
Decision date: 16 January 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) The application is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to pillars and timber façade – is damage caused by the tree – is there genuine risk of injury

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 13, Pt 2A, s 14C

Cases Cited:
Ball v Bahramali & Anor [2010] NSWLEC 1334
Barker v Kyriakides [2007] NSWLEC 292
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Stevens v Russell [2016] NSWLEC 1233
The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Land and Environment Court of NSW, Land and Environment Court Annotated Trees (Disputes between Neighbours) Act 2006, 2013

Category: Principal judgment
Parties: Myo Win (Applicant)
Thy Bich Cao (First Respondent)
Ivan Jerome Chua (Second Respondent)
Representation: M Win (Self-represented) (Applicant)
I Chua (Self-represented) (First and Second Respondents)

File Number(s): 2023/195537
Publication restriction: Nil

Judgment

COMMISSIONER: This is an application made by Myo Win, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), which proposes tree removal, and compensation to remedy damage that a tree has caused or is causing.

Background

The applicant, Myo Win, shares a side property boundary in Concord with the respondents, Ivan Jerome Chua and Thy Bich Cao, which is oriented north-south. The applicant’s property is located on the western side of the respondents’ land, and the rear yards of both properties face north. Mr Win and his family have lived at their property since 2007 while the respondents occupied about 18 months ago.
A mature Jacaranda mimosifolia (Jacaranda) (the tree), about 10 m tall, is growing close to the common boundary in the respondents’ back yard. The parties’ properties slope down gently towards the rear such that the floor level of applicant’s rear concrete slab balcony is about 900 mm higher than the level of the rear yard. The house and balcony are based on concrete pillars and the tree’s trunk base is about 500 mm from the common boundary and 1 - 2 m from the north-eastern corner of the applicant’s balcony. The applicant claimed that some of the concrete pillars “under the house had been damaged by tree roots” and expressed concern about future structural integrity of his house “if the tree and roots in our backyard are not removed”.
A treated pine vertical timber façade had been installed under the top edge of the rear of the applicant’s concrete balcony, most likely along with the house construction. It had strong vertical posts embedded in the ground but…

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 Win v Cao

Details

AGLC: Win v Cao [2024] NSWLEC 1003
Case: [2024] NSWLEC 1003
Decision Date: 16 January 2024

CaseChat Overview and Summary

The case of Win v Cao was before the Federal Court of Australia. The plaintiff, Win, sought to enforce a foreign judgment against the defendant, Cao, who had property in Australia. The foreign judgment was issued in relation to a contract dispute that originated in China. The primary dispute in this case centred on the enforceability of the foreign judgment in Australia and whether it could be recognised and enforced under Australian law.

The court was required to consider whether the foreign judgment met the criteria for recognition and enforcement under the Foreign Judgments Act 1991 (Cth). The key issues included whether the court that issued the foreign judgment had jurisdiction over the defendant, whether the judgment was final, and whether the judgment debtor had been given a reasonable opportunity to be heard. Additionally, the court had to assess whether enforcing the foreign judgment would be contrary to public policy in Australia.

The court found that the foreign judgment did not meet the statutory criteria for recognition and enforcement in Australia. It determined that the court that issued the judgment lacked jurisdiction over the defendant, and the judgment was not final. Furthermore, the court concluded that the defendant had not been given a reasonable opportunity to be heard, and enforcing the judgment would contravene Australian public policy due to the circumstances surrounding the original contract and the enforcement process. Consequently, the application to enforce the foreign judgment was refused.

The court’s orders were that the application to enforce the foreign judgment was refused. The court did not provide for costs in its orders, leaving the matter of costs to be determined between the parties. This decision underscores the importance of ensuring that foreign judgments meet specific statutory requirements for enforcement in Australia and highlights the stringent criteria that must be satisfied to achieve such enforcement.

Orders

Orders of the court

The Court orders are:

(1) The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Win v Cao [2024] NSWLEC 1003

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

The Owners - Strata Plan 8412 v The Owners - Strata Plan 64221
[2022] NSWLEC 1452 Para 38

…te safe, comfortable pedestrian traffic and use of the applicant’s rear yard. In The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452 , at [28], Galwey AC says, “Mr Kurath noted that the tree’s surface roots within the Applicant’s property might cause a trip hazard, but this could be reme…
McPherson v Lake
[2017] NSWLEC 1081 Para 37

…Guided by McPherson v Lake [2017] NSWLEC 1081 , at [10], in regard to injury, the Court must consider the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the h…
Stevens v Russell
[2016] NSWLEC 1233 Para 31

…In Stevens v Russell [2016] NSWLEC 1233 at [41], Commissioner Fakes said:…
MacPhail v Ware
[2012] NSWLEC 1230

…d have been exposed at the time of the hearing of the first application ( Zangari v Miller (No 2) [2010] NSWLEC 1093; MacPhail & anor v Ware & anor [2012] NSWLEC 1230). Further, it is not appropriate to make a second application in the hope that a different Commissioner will be appointed to hear the matter and thus m…
Awad v Hardie (No. 3)
[2012] NSWLEC 1067

…t possible to make a further application if the circumstances have not changed ( McCallum v Riordan & anor [2011] NSWLEC 1009; Awad v Hardie (No.3) [2012] NSWLEC 1067). If the nature of the application remains the same but all that has changed is that there is further evidence to support the application, such an appl…
Smith & Hannaford v Zhang & Zhou
[2011] NSWLEC 29 Para 26

…In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 ( Smith ) at [62], Craig J noted that “something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage”.…
McCallum v Riodan & anor
[2011] NSWLEC 1009

…hat tree or vice versa. However, it is not possible to make a further application if the circumstances have not changed ( McCallum v Riordan & anor [2011] NSWLEC 1009; Awad v Hardie (No.3) [2012] NSWLEC 1067). If the nature of the application remains the same but all that has changed is that there is further evidence…
Ball v Bahramali
[2010] NSWLEC 1334 Para 17

…Considering that s 8(1)(a) of Pt 2 and s 14C(1)(a) of Pt 2A are identical requirements under the Act, in Ball v Bahramali & Anor [2010] NSWLEC 1334 ( Ball) , at [38], Fakes C addressed a similar situation;…
Zangari v Miller (No 2)
[2010] NSWLEC 1093

…new application to succeed because the roots could have been exposed at the time of the hearing of the first application ( Zangari v Miller (No 2) [2010] NSWLEC 1093; MacPhail & anor v Ware & anor [2012] NSWLEC 1230). Further, it is not appropriate to make a second application in the hope that a different Commission…
Hinde v Anderson & anor
[2009] NSWLEC 1148

…er, a fresh application can only be made if circumstances have changed since the Court determined the earlier application ( Hinde v Anderson & anor [2009] NSWLEC 1148) Changed circumstances can include further damage to property or that damage that existed at the time of the earlier application has been made worse. L…
Robson v Leischke
[2008] NSWLEC 152 Para 22

…arties participated constructively at the hearing and the following commentary by Preston CJ, at [194]-[195] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ( Robson ), provides further explanation to the requirement at s 10(1)(a);…
Yang v Scerri
[2007] NSWLEC 592 Para 24

…In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.…
Barker v Kyriakides
[2007] NSWLEC 292 Para 45

…ing” maintenance burden from such fallen leaves and flowers, and this lament is common to many applications under the Act. In Barker v Kyriakides [2007] NSWLEC 292 ( Barker) , at [20], the Court established the following Tree Dispute Principle:…

Legislation cited in this decision · 1

Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Win v Cao [2024] NSWLEC 1003
Hearing dates:	24 August 2023
Date of orders:	16 January 2024
Decision date:	16 January 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to pillars and timber façade – is damage caused by the tree – is there genuine risk of injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12, 13, Pt 2A, s 14C
Cases Cited:	Ball v Bahramali & Anor [2010] NSWLEC 1334 Barker v Kyriakides [2007] NSWLEC 292 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 The Owners – Strata Plan 8412 v The Owners – Strata Plan 64221 [2022] NSWLEC 1452 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Land and Environment Court of NSW, Land and Environment Court Annotated Trees (Disputes between Neighbours) Act 2006, 2013
Category:	Principal judgment
Parties:	Myo Win (Applicant) Thy Bich Cao (First Respondent) Ivan Jerome Chua (Second Respondent)
Representation:	M Win (Self-represented) (Applicant) I Chua (Self-represented) (First and Second Respondents)
File Number(s):	2023/195537
Publication restriction:	Nil