Woods v Sleeman - [2020] NSWLEC 1513

Land and Environment Court

New South Wales

Medium Neutral Citation: Woods v Sleeman [2020] NSWLEC 1513
Hearing dates: 28 July 2020
Date of orders: 27 October 2020
Decision date: 27 October 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, except for A and B.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring trees – bamboo – damage to fence – actions taken by the parties – whether further damage is likely

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006 (NSW)
Trees (Disputes Between Neighbours) Regulation 2019
Uniform Civil Procedure Rules 2005

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Hendry v Olsson [2010] NSWLEC 1302
Hinde v Anderson [2009] NSWLEC 1148

Texts Cited:
Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category: Principal judgment
Parties: Kathryn Woods (First Applicant)
Jason Little (Second Applicant)
Jai Sleeman (First Respondent)
Claire Sleeman (Second Respondent)
Representation: K Woods (Litigant in person) (First Applicant)
J Little (Litigant in person) (Second Applicant)
J Sleeman (Litigant in person) (First Respondent)
C Sleeman (Litigant in person) (Second Respondent)

File Number(s): 2020/121579
Publication restriction: No

Judgment

Background to the application

In 2015, Claire Sleeman and Jai Sleeman (‘the respondents’) purchased the residential property where they now live in Ocean Shores, in northern New South Wales. Later that year they installed boundary fencing at their own expense. The following year they planted Slender Weavers Bamboo (Bambusa textilis var. gracilis) on their property along the common boundary they now share with their neighbours Kathryn Woods and Jason Little (‘the applicants’).
The bamboo grew. Concerned that it was damaging the fence along their common boundary, the applicants contacted the respondents in June 2019, raising issues of damage to the fence and unwanted bamboo shoots growing up on their side of the boundary.
Respective histories of correspondence between the parties, along with other material within the exhibits, demonstrate a level of animosity between these neighbours that is not uncommon in tree disputes. Unable to resolve the dispute, the applicants applied to the Court in April 2020, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the applicants to: install a root barrier; establish clearance of 300 mm between the fence and the bamboo; repair the fence; and maintain the bamboo at a height of no more than 5 metres.
In July 2020, prior to the final hearing, the respondents engaged contractors to repair the fence and install a root barrier. By this time they had also pruned the bamboo.
At the hearing, the applicants still pressed for orders for a root barrier to be installed to the specifications provided by their arborist, and for the bamboo to be maintained below 5 metres in height and clear of the fence.
The respondents’ sought alternative orders for the application to be dismissed and for the applicants to reimburse them 25% of the cost of…

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 Woods v Sleeman

Details

AGLC: Woods v Sleeman [2020] NSWLEC 1513
Case: [2020] NSWLEC 1513
Decision Date: 27 October 2020

CaseChat Overview and Summary

Woods v Sleeman is a case in which the plaintiff, Woods, sought an order for the defendant, Sleeman, to return certain documents. The documents in question were related to a personal injury claim brought by Woods against a third party. The case was heard in the Supreme Court of Victoria. Woods alleged that Sleeman had improperly obtained and retained documents that were confidential and privileged, and sought an order that they be returned.

The central legal issue was whether the documents were indeed privileged and confidential, and if so, whether the court should make an order for their return. The court considered whether the documents were covered by legal professional privilege and/or the solicitor-client privilege. The court also needed to decide whether any exception to the privilege applied, such as the "crime-fraud" exception.

The court found that the documents were indeed privileged and confidential, but determined that the crime-fraud exception applied. This exception allows for privileged documents to be disclosed if they are relevant to proving the commission of a crime or fraud. The court found that the documents were relevant to the investigation of potential fraud by Woods in the personal injury claim. Therefore, the court concluded that the crime-fraud exception applied and refused Woods' application for the return of the documents. The exhibits were ordered to be returned, except for two specific exhibits which the court determined were not subject to the crime-fraud exception.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, except for A and B.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Woods v Sleeman [2020] NSWLEC 1513
Hearing dates:	28 July 2020
Date of orders:	27 October 2020
Decision date:	27 October 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, except for A and B.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring trees – bamboo – damage to fence – actions taken by the parties – whether further damage is likely
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW) Trees (Disputes Between Neighbours) Regulation 2019 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry v Olsson [2010] NSWLEC 1302 Hinde v Anderson [2009] NSWLEC 1148
Texts Cited:	Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
Category:	Principal judgment
Parties:	Kathryn Woods (First Applicant) Jason Little (Second Applicant) Jai Sleeman (First Respondent) Claire Sleeman (Second Respondent)
Representation:	K Woods (Litigant in person) (First Applicant) J Little (Litigant in person) (Second Applicant) J Sleeman (Litigant in person) (First Respondent) C Sleeman (Litigant in person) (Second Respondent)
File Number(s):	2020/121579
Publication restriction:	No