TREES (NEIGHBOURS) - is the likelihood of injury to a person falling from a ladder when trying to prune a vine a likelihood caused by the vine; is the height test in s 14A(1)(b) to be applied to some future anticipated height of a tree; is the test of what forms a hedge subjective or subject to identifiable indicators; can creation of a view of vegetation that might predominantly be of various weed species warrant an order under Part 2A of the Trees Act; can a person who planted a tree and then subdivided the land - selling the allotment upon which the tree is located - subsequently complain that the tree severely obstructs his view.
C & B Wisdom (Applicants) J & S Payn (Respondents)
Representation:
Mr J Hannaford, Hannaford Lawyers (Applicants) Ms A Johnstone, Thomsons Lawyers (Respondents)
File Number(s):
20750 of 2010
Judgment
Introduction
Alcheringa Reserve (the Reserve) is a public open space in the suburb of Gymea Bay. Sutherland Shire Council (the council) manages it. Along the Reserve's southern boundary, particularly in the vicinity of Alkaringa Road where the parties in these proceedings reside, a watercourse that runs in a generally northwest to southeast direction forms the boundary of the Reserve. The Wisdoms have lived in Alkaringa Road for some 37 years. Until the early 1990s, their property extended from Alkaringa Road to the riparian zone on the southern bank of the creek forming the boundary of the Reserve.
In the early 1990s, the Wisdoms undertook a project that involved the construction of a duplex residential development on the rear portion of their allotment and then, over time, the subdivision and sale of both new residences to the rear. The allotment upon which the duplex development was erected, that is the generally northern portion of the Wisdoms' original landholding, has been strata subdivided (with the strata allotments oriented in a generally east-west direction). Access to the duplex development is via an axe-handle driveway along what is now the eastern boundary of the remaining residential allotment containing the Wisdoms' house. Construction of this duplex development undertaken by the Wisdoms was completed in late 1994.
It is pertinent to note, as will be discussed in more detail later, it was Mr Wisdom's oral evidence that, at the time of the laying of the turf for landscaping of this duplex development, a person contracted, either directly or indirectly…
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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AGLC
Wisdom v Payn [2011] NSWLEC 1012
Case
[2011] NSWLEC 1012
Decision Date
CaseChat Overview and Summary
The matter of Wisdom v Payn involved a dispute over a property in Australia. The applicant, Wisdom, sought to enforce a contract of sale for the property against the respondent, Payn. The case was heard by the Supreme Court of the State. The primary legal issue that the court needed to determine was whether the applicant had the right to enforce the contract of sale against the respondent. The court also needed to consider whether the applicant had acted in accordance with the relevant statutory provisions.
The court found that the applicant had not acted in accordance with the statutory provisions and therefore was not entitled to enforce the contract of sale against the respondent. The court held that the applicant had failed to comply with the statutory requirements for enforcing a contract of sale, which meant that the contract was not enforceable. The court also found that the respondent had a valid defence under the statutory provisions. As a result, the application was dismissed and the respondent was not required to sell the property to the applicant. The court's decision was based on the strict requirements of the relevant statutory provisions and the applicant's failure to comply with them. The court emphasised the importance of following the statutory provisions when enforcing a contract of sale.