Xu v Johns

[2025] NSWLEC 81

Land and Environment Court

New South Wales

Medium Neutral Citation:

Xu and Anor v Johns [2025] NSWLEC 81

Hearing dates:

23 April and 12 May 2025

Date of orders:

07 August 2025

Decision date:

07 August 2025

Jurisdiction:

Class 2

Before:

Robson J

Decision:

See orders at [128]

Catchwords:

CIVIL PROCEDURE — Land and Environment Court — Tree dispute — Summary disposal — Dismissal of proceedings — Whether earlier decision should be set aside or stayed — Proceedings litigating same cause of action and issues — res judicata — issue estoppel — Anshun estoppel — Where proceedings are an abuse of process and frivolous or vexatious — Whether vexatious proceedings order should be made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 91

Dividing Fences Act 1991 (NSW)

Land and Environment Court Rules 2007 (NSW), r 3.7

Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9

Uniform Civil Procedure Rules 2005 (NSW), Pt 36, Div 4, rr 13.4, 36.15, 36.16, 36.17, 36.18, 50.7

Vexatious Proceedings Act 2008 (NSW), ss 4, 6, 8

Cases Cited:

Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700

BlairvCurran (1939) 62 CLR 464; [1939] HCA 23

Cannuli v Cannuli [2018] NSWSC 937

Collier v Attorney General(NSW) [2023] NSWCA 273

Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138

Hinde v Anderson [2009] NSWLEC 1148

Macatangay v State of New South Wales(No 2) [2009] NSWCA 272

Maurici v Kaldor [2025] NSWLEC 20

Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129

Proiettiv Proietti [2024] NSWCA 48

Stokes (by a tutor) v McCourt [2013] NSWSC 1014

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

Xu v Johns [2024] NSWLEC 33

Xu v Seccombe [2023] NSWLEC 1670

Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317

Category:

Principal judgment

Parties:

Xiu Yan Xu (First Applicant)
Xiabing Xu (Second Applicant)
Eileen Claire Johns (Respondent)

Representation:

Counsel:
X Y Xu, self-represented (First and Second Applicant)
T Howard SC with L Sims (Respondent)

Solicitors:
Self-represented (First Applicant)
Self-represented (Second Applicant)
Bick & Steele (Respondent)

File Number(s):

2024/00464408

Publication restriction:

Nil

JUDGMENT

Introduction and outcome

1. Before the Court in these Class 2 tree dispute proceedings commenced pursuant to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) on 10 December 2024 by Xiu Yan Xu and her son, Xiabing Xu, whom I shall refer to as Ms Xu and Mr Xu, are three notices of motion: two notices of motion filed 23 December 2024 (amended on 17 January 2025 and further amended on 19 March 2025) and 10 March 2025 by Ms Xu and Mr Xu, and one notice of motion filed 10 February 2025 by the respondent, Eileen Claire Johns (‘Ms Johns’).

2. By her notice of motion Ms Johns seeks summary dismissal of these proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), and alternatively, that all proceedings in the Court instituted by Ms Xu and Mr Xu against Ms Johns be stayed pursuant to s 8(8)(a) of the Vexatious Proceedings Act 2008 (NSW) (‘VP Act’), and that Ms Xu and Mr Xu be prohibited from instituting proceedings in the Court without leave pursuant to s 8(8)(b) of the VP Act.

3. In their notice of motion filed 23 December 2024 Ms Xu and Mr Xu seek orders that Ms Johns’ notice of motion for summary dismissal be dismissed and that the Court permanently stay, rescind or set aside certain orders made by Preston CJ of LEC on 26 March 2024 dismissing earlier Class 2 tree dispute proceedings brought by Ms Xu and Mr Xu against Ms Johns; and in their notice of motion filed 10 March 2025, Ms Xu and Mr Xu seek an order that these proceedings proceed urgently to an onsite inspection and hearing.

4. The hearing of the three motions proceeded together on 23 April and 12 May 2025. Ms Xu and Mr Xu appeared without legal representation and Mr Howard of senior counsel, with Ms Sims of counsel, appeared for Ms Johns.

5. For the reasons that follow, I find that the appropriate orders are that each of Ms Xu and Mr Xu’s notices of motion and these Class 2 proceedings be dismissed, and that Ms Xu and Mr Xu be prohibited from instituting proceedings in the Court for two years without leave of the Court.

Background

6. Ms Xu and Mr Xu own land at 39 Valerie Avenue, Chatswood West (‘Xu Land’). Ms Johns owns land and resides at 41 Valerie Avenue, Chatswood West (‘Johns Land’). The properties share a side boundary.

7. Since June 2023, Ms Xu and Mr Xu have instituted various proceedings against Ms Johns in this Court, the Local Court of NSW, the District Court of NSW, and the Federal Circuit and Family Court of Australia, seeking relief relating to the removal of certain trees (and their debris) on the Johns Land as well as compensation for loss and damage said to be caused by the trees and their debris. Although it will be necessary to consider the various proceedings in some detail, in summary, these proceedings include:

1. Proceedings 2023/00180739 in the Class 2 jurisdiction of this Court commenced on 6 June 2023, being a claim made under Pt 2 of the Trees Act (‘First Tree Dispute Proceedings’). Those proceedings were dismissed by Galwey AC (‘Commissioner’) on 26 September 2023: Xu v Seccombe [2023] NSWLEC 1670 (‘first tree decision’).

2. Proceedings 2023/00307551 in the Local Court commenced on 27 September 2023 (‘First Local Court Claim’), which sought orders to remove vegetative debris from the boundary area. Ms Xu and Mr Xu withdrew those proceedings on 15 December 2023.

3. Proceedings 2023/00460920 in the Class 2 jurisdiction of this Court commenced on 20 December 2023, being a claim made under Pt 2 of the Trees Act (‘Second Tree Dispute Proceedings’), relating to the same subject matter as the First Tree Dispute Proceedings and seeking substantially the same relief. Those proceedings were dismissed by Preston CJ of LEC on 26 March 2024 with costs awarded to Ms Johns: Xu v Johns [2024] NSWLEC 33 (‘earlier tree decision’).

4. Proceedings 2024/00147072 commenced in the Court of Appeal on 19 April 2024 by Ms Xu and Mr Xu filing a notice of intention to appeal from the earlier tree decision. No notice of appeal has been filed (although Ms Xu and Mr Xu have indicated an intention to file a notice of motion for leave to appeal out of time).

5. Proceedings 2024/00025514 in the Local Court commenced by Ms Xu on 22 January 2024, being an application made under the Dividing Fences Act 1991 (NSW) (‘Second Local Court Claim’). The proceedings sought orders in relation to fencing and orders to remove vegetative debris from the boundary area. On 12 July 2024, the Local Court made fencing orders substantially in accordance with orders later proposed by Ms Johns and ordered that Ms Xu pay Ms Johns’ costs from 5 March 2024 on an indemnity basis.

6. On 30 October and 19 November 2024, Ms Xu and Mr Xu made applications to the Local Court to relist and reopen or annul the Second Local Court Claim following the final orders given on 12 July 2024. The application filed on 19 November 2024 stated that, “The previous FENCE DISPUTE OF COURT RESULT 2024/00025514-001 on [12] July 2024 was a totally compromised COURT RESULT. It was made under the influence of [Ms Johns’] cover up fraud, deceptive, and misleading to the Court.” Those applications were unsuccessful as the Local Court refused to make the orders sought by Ms Xu and Mr Xu.

7. On 5 December 2024, Ms Xu sought leave to file a notice of appeal (outside of 28 days) in the District Court against the orders made in the Local Court on 12 July 2024. Ms Xu’s application for leave to appeal was listed for hearing on 26 June 2025 and presently her application is awaiting determination before the District Court on 8 August 2025.

8. The present proceedings (being the third Class 2 tree dispute proceedings) were commenced by Ms Xu and Mr Xu on 10 December 2024, being a claim seeking substantially the same relief (the removal of the Loquat (Eriobotrya japonica) and the Sydney Peppermint (Eucalyptus piperita) and that Ms Johns pay damages in the sum of $41,800 and $7,700 for the removal of the trees) as sought in the First Tree Dispute Proceedings and the Second Tree Dispute Proceedings.

9. Proceedings SYG833/2025 commenced by notice of motion on 20 March 2025 in the Federal Circuit and Family Court (‘Federal Court Claim’), which sought to set aside a bankruptcy notice that had been issued on behalf of Ms Johns following the assessment of the costs order made by Preston CJ of LEC in the Second Tree Dispute Proceedings. The Federal Court Claim was dismissed on 17 April 2025.

10. As noted earlier, Ms Xu and Mr Xu filed their first motion in the present proceedings on 23 December 2024 (which was amended on 17 January 2025 and further amended on 19 March 2025) and their second motion on 10 March 2025.

The First Tree Dispute Proceedings

8. The First Tree Dispute Proceedings were an application in this Court brought under Pt 2 of the Trees Act filed on 6 June 2023, which sought orders for: the removal of four trees on the Johns Land, relevantly including a Loquat (Eriobotrya japonica) (‘Tree 1’) and a Sydney Peppermint (Eucalyptus piperita) (‘Tree 2’); Ms Johns to pay the cost of removal of the trees and compensation for other related costs to Ms Xu and Mr Xu; and Ms Johns to pay interest if she delays in paying moneys ordered by this Court.

9. The bases on which Ms Xu and Mr Xu sought removal of Tree 1 were stated to be: the tree interferes with the proposed dividing fence that they wished to erect; the tree leans across the boundary and invades the airspace of their property; the tree continuously deposits dirty leaves and branches on their property, requiring constant cleaning; and the tree blocks the easterly sunlight and daylight of a room in their house.

10. The bases on which Ms Xu and Mr Xu sought removal of Tree 2 were stated to be: the tree leans across the boundary and invades the airspace of their property; the tree tosses dead leaves and sticks on the roof of their house, gutters and ground; the tree has damaged the roof of their house, gutters, downpipes and inside ceiling and has blocked running stormwater; and the tree has “infested termites”.

11. Ms Xu and Mr Xu amended their application (for a third time) on 28 August 2023, adding two new bases for seeking removal of Tree 2: first, that it blocked the north-westerly sun, and consequently a solar panel could not be installed on the roof as it would be ineffective; and second, that rotten leaves from Tree 2 had been used by a brush-turkey to build a bird’s nest which became a source for termites that climbed the tree branches and invaded the roof of their house, destroying the inside timber structure.

12. The further amended application also sought compensation in the sum of approximately $21,000, and added a further claim for what was stated to be a “BIO SECURITY CRIME” committed by Ms Johns (described by Ms Xu as Ms Johns having “trespassed to and dumped her grass clippings/cut offs to Applicants’ land”) and sought an order that Ms Johns “never ever [trespass] boundary dividing line, into Applicants’ land, never ever [commit …] biosecurity crimes that [dump] any unknown plants, seeds, soil to Applicants’ land”.

13. Ms Xu also sought mandatory injunctive orders, first, that Ms Johns remove from her land all materials said to be “nuisance, harmful, termite/pests infesting materials piled at [Ms Johns’] boundary area” to a distance of a “minimum 500 meters away”; and second, that Ms Johns “never [store] any dead woody tree material relating to any food sources of infesting pests/termite at boundary area”.

14. The hearing of the First Tree Dispute Proceedings took place onsite on 26 September 2023. The Commissioner, a qualified arborist, presided.

15. At the hearing, Ms Xu tendered a document titled “Applicants Statement for Root Mapping Investigation Results” dated 11 September 2023. This statement signed by Ms Xu and Mr Xu recorded that Ms Xu had instructed an arborist, Arbor Express, to carry out root mapping to investigate if significant tree roots from Tree 2 are located within the boundary dividing area of the Xu Land, adjacent to the Johns Land. Ms Xu’s statement purported to summarise the findings of root mapping undertaken by Arbor Express on 3 August 2023. The investigation included digging trenches to expose tree roots. Ten roots from Tree 2 were identified and the diameters of those roots were stated to be from 15mm to 70mm. A number of “very fine feeder roots” were identified, but given the quantum, the arborist did not number them. The statement included two photographs showing roots in a trench near the house foundations.

16. After inspecting the trees and the claimed damage to the Xu Land, and after hearing the parties’ evidence and submissions, the Commissioner gave judgment orally. His reasons for his decision were later transcribed and published: Xu v Seccombe [2023] NSWLEC 1670.

17. The Commissioner dismissed Ms Xu and Mr Xu’s application for the removal of the four trees, as well as their claims for compensation for loss and damage said to be caused by the trees. The Commissioner found that Ms Xu and Mr Xu had not established, for each of the four trees, that the tree caused, was causing, or was likely in the near future to cause, damage to their property or injury to any person.

18. In addition, the Commissioner rejected Ms Xu and Mr Xu’s claims regarding, first, the trees’ invasion of the airspace above the Xu Land, as this did not constitute damage to property; second, the dropping of leaves, twigs and other debris from the trees on the roof and gutters of their house and the Xu Land, because such debris does not constitute damage to property under the Trees Act and, in any event, has not caused, and is not likely to cause, damage to their property; third, the debris used by a brush-turkey to construct its nest on the Johns Land which may have been the source of termites or ants that were present on the Xu Land and caused damage, but any such damage caused by such insects did not enliven the Court’s jurisdiction; and fourth, the roots of the trees on the Johns Land have damaged, or are likely in the near future to damage Ms Xu and Mr Xu’s house, as although some woody roots were found near the dwelling on the Xu Land, neither the photos provided by Ms Xu and Mr Xu, nor the summary of root mapping, nor the Commissioner’s observations, show that Tree 2 has damaged the dwelling or the Xu Land or that it was likely to do so in the near future.

The First Local Court Claim

19. On 27 September 2023, one day after the Commissioner dismissed the First Tree Dispute Proceedings, Ms Xu and Mr Xu filed a statement of claim in the Local Court (the First Local Court Claim). The relief claimed included that Ms Johns:

“1   Remove harmful material stored at boundary area: woody logs, woody rubbish, bird nest built by rotten leaves, pay costs of removal – more details in separate pages

2   Rectify BIO SECURITY CRIME by Respondent of trespassed to and dumped grass clippings/cut offs to Applicants’ land...

3   Never store woody or wood related material at boundary area

4   Never trespass into Plaintiff land, never commit BIO SECURITY CRIME to Plaintiff and Plaintiff land

[5]   PAY COMPENSATION @ amounts below – more details in separate pages

…”

20. The statement of claim sought damages in the sum of approximately $5,000 and stated:

“1.   As a result of the defendant’s actions in above Claim 1, the plaintiff suffered personal injury, bitten/poisoned by the black ants infested from Respondent’s bird nest – more details in separate pages.

2.   As a result of the defendant's actions in above Claim 2, the plaintiff suffered metal [sic] stress and harassment, many sleepless nights – more details in separate pages.”

21. On 30 November 2023, Ms Johns filed a “Defence” in the proceedings, and the matter was listed on 15 December 2023 for a pre‑trial review. On 15 December 2023, following a discussion between the Local Court Registrar and Ms Xu, Ms Xu and Mr Xu’s statement of claim was withdrawn and dismissed.

The Second Tree Dispute Proceedings

22. On 20 December 2023, five days after the First Local Court Claim was dismissed, Ms Xu and Mr Xu filed in this Court a second application under Pt 2 of the Trees Act seeking orders including, first, the removal of Tree 1 and Tree 2; second, that Ms Johns pay Ms Xu and Mr Xu the amount of $7,700 for the cost of removing the trees; and third, damages as follows:

“3.   The Respondent pays $41,800 [Note 1] damages caused by the trees stated in the EXPERT WITNESS REPORT with Scott Schedule, plus total $7,700 work order stated above, plus all the Courts fees $267, Expert Report fee $1100, Expert Court appearances/summons fee $500, postage $xxx (to be added) and other related future costs relating to this Court case.”

23. The “Tree Dispute Claim Details” filed by Ms Xu and Mr Xu included a report by David Augustine Raul dated 5 December 2023, which was also referred to in the evidence and submissions as a report of Decolata Group Pty Ltd (‘2023 Raul Report’). The report includes a “Building (Structural) Defects Inspection” at the house on the Xu Land “to provide advice to the Client regarding the condition of the Building & Site at the time of inspection”. Mr Raul asserted that tree roots were the cause of identified defects and estimated the cost to rectify those defects at approximately $50,000. The report also included photographs of some woody roots on the soil surface near the house and estimated a hypothetical reach for roots of a tree with the heights of Tree 1 and Tree 2, which could have roots that reach the foundations, floors and exterior walls` of their house. On these bases, Mr Raul said that removal of both trees was “strongly recommended … to protect structural integrity of elements” of the house on the Xu Land.

24. On 13 February 2024, Ms Johns filed a notice of motion seeking an order that the Second Tree Dispute Proceedings be dismissed pursuant to r 13.4 of the UCPR which proceeded to hearing before Preston CJ of LEC on 26 March 2024. Ms Johns submitted that the Second Tree Dispute Proceedings were an abuse of process because, first, they were an attempt to relitigate issues that had already been decided in the First Tree Dispute Proceedings as the relief claimed in both proceedings in relation to Tree 1 and Tree 2 was the same, namely, the removal of both trees and payment of compensation for loss and damage said to have been caused by the trees; and second, the grounds for seeking the removal of both trees were the same, being that their roots and branches, leaves and debris caused damage to the house on the Xu Land and that these claims were determined finally and completely by the Commissioner in the First Tree Dispute Proceedings. In particular, the Commissioner had addressed, but rejected, Ms Xu and Mr Xu’s claim that the roots of the trees had caused damage.

25. The third ground on which Ms Johns contended the Second Tree Dispute Proceedings were an abuse of process is that Ms Xu and Mr Xu sought to relitigate issues that could or should have been litigated in the First Tree Dispute Proceedings, raising an Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598-604; [1981] HCA 45 (‘Anshun’).

26. Another ground on which Ms Johns contended the Second Tree Dispute Proceedings should be dismissed is that they were frivolous or vexatious because Ms Xu and Mr Xu had commenced four separate proceedings relating to the same or similar subject matter, being trees and their vegetative debris near the common side boundary.

27. Preston CJ of LEC found that the Second Tree Dispute Proceedings should be dismissed on the grounds of res judicata, issue estoppel and Anshun estoppel, and that it was unnecessary to decide whether they should also be dismissed on the ground that they were frivolous or vexatious. His Honour found (at [72]) that the Commissioner’s determination of Ms Xu and Mr Xu’s application in the First Tree Dispute Proceedings had the effect that the cause of action “passed into judgment, so that it is merged and has no longer an independent existence” (Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23); and that the cause of action for damage to their property caused by the same two trees on the Johns Land had been decided in the First Tree Dispute Proceedings which precluded Ms Xu and Mr Xu later bringing proceedings upon that cause of action, upholding the first ground for summary dismissal.

23. In relation to the second ground, issue estoppel, Preston CJ of LEC held that the issue of whether the trees’ roots had caused damage to the Xu Land was necessarily decided by the Commissioner as it was central to their claim. His Honour concluded that the Commissioner’s determination of that issue disposed of that central issue once and for all such that it could not afterwards be raised by the same parties, and Ms Xu and Mr Xu were therefore estopped from raising the issue again by operation of issue estoppel.

24. In relation to Anshun estoppel, Preston CJ of LEC found that the issue of damage caused by the roots of Tree 1 in the First Tree Dispute Proceedings was central to the claim made in the Second Tree Dispute Proceedings and that issue could and should have been raised earlier, and as such, Ms Xu and Mr Xu were estopped from raising that issue again in the Second Tree Dispute Proceedings.

25. Given his findings, Preston CJ of LEC found that whether the Second Tree Dispute Proceedings taken together with earlier and related proceedings establish that the Second Tree Dispute Proceedings were frivolous or vexatious, need not be decided. His Honour dismissed the proceedings and ordered that Ms Xu and Mr Xu pay Ms Johns’ costs.

The Second Local Court Claim

31. On 22 January 2024, Ms Xu filed a further application in the Local Court (being the Second Local Court Claim) seeking orders, first, for the erection of a fence at the “boundary dividing line”; second, that Ms Johns pay 50% of the final cost of the fence and 50% of the costs of survey pegging ($266.03); third, that Ms Johns “removes all the harmful nuisance material piled at boundary area – namely: huge dead dry tree remnants, dead dry tree branches, dead dry tree rotten leaves, dead dry tree debris piled at boundary area”; and fourth, that Ms Johns pay Court fees and other related costs.

32. On 12 July 2024, the Local Court (Shields LCM) made orders generally in accordance with the draft orders provided by Ms Johns’ solicitors and ordered Ms Xu to pay Ms Johns’ costs incurred from 5 March 2024 on an indemnity basis.

33. In October and November 2024, Ms Xu sought orders in the Local Court to reopen the Second Local Court Claim and for an annulment of the orders made on 12 July 2024 (noted at [7(6)]). On 3 December 2024, Ms Xu’s application was refused for want of jurisdiction.

34. On 5 December 2024, Ms Xu filed an application in the District Court for leave to appeal against the final orders in the Second Local Court Claim. This application was listed for hearing on 26 June 2025 and is now awaiting determination by the District Court on 8 August 2025.

Federal Court Claim

35. As noted at [7(9)] above, the Federal Court Claim was dismissed on 17 April 2025.

Evidence and submissions

36. Ms Xu and Mr Xu read five affidavits of Ms Xu affirmed 23 December 2024, 10 March 2025 (two affirmed on this day), 12 March 2025, and 9 April 2025. Ms Xu and Mr Xu rely on an email from Ms Xu and Mr Xu to Ms Johns (through her solicitor) on 11 March 2025 and an email of Ms Johns’ solicitor to Ms Xu and Mr Xu on 12 March 2025 (‘Ex A’); and a letter dated 23 April 2023 from Robert Durose and Ms Johns regarding a Community Justice Centre application for mediation (‘Ex B’). They also placed before the Court an “updated expert witness report” of David Augustine Raul dated 7 April 2025 which was filed on 9 April 2025 (‘2025 Raul Report’).

37. Ms Xu and Mr Xu provided extensive written submissions to the Court, including submissions titled: “applicants’ submissions to dismiss respondent notice of motion filed on 10 February 2025” filed 17 February 2025; “applicants’ submissions to object res judicata estoppel, Anshun estoppel rule application on subsequent tree dispute proceedings” filed 17 February 2025; “Submissions in support of Applicants’ further amended notice of motion and orders dated 18 March 2025” filed 15 April 2025; “submissions for hearing on three motions hearing” filed 23 April 2025; “applicants submissions for hearing on 12 May 2025” filed 11 May 2025; and “applicants’ submissions to reference for court document/files searching” filed (in Court) 23 April 2025.

38. Ms Johns read the affidavits (and extensive background documentation exhibited thereto) of her solicitor, Darren Paul Bick, affirmed 10 February 2025 and 22 April 2025. The documentation included an email that Ms Xu sent to the Court on 11 December 2023 calling into question the first tree decision and a number of applications lodged by Ms Xu and Mr Xu as well as the material supporting those applications including affidavits and statements, which were part of Exhibit DPB-1 (‘Ex 1’).

Ms Johns’ position

39. In relation to Ms Xu and Mr Xu’s motion (filed 23 December 2024 and most recently amended on 19 March 2025) seeking to set aside, rescind or permanently stay the orders made by Preston CJ of LEC in the Second Tree Dispute Proceedings and to prohibit Ms Johns from seeking summary dismissal of the present proceedings, Ms Johns submits that, first, Ms Xu and Mr Xu cannot rely upon r 50.7 of the UCPR in support of their motion, because r 50.7 only applies to appeals to the Supreme Court from inferior courts and relates to stays pending appeal (noting there is no notice of appeal filed in relation to the proceedings); and second, the general rule is that final orders regularly made, and formally entered, can only be challenged on appeal or in proceedings to set aside the judgment for fraud.

40. Further, Div 4 of Pt 36 of the UCPR, which provides for circumstances permitting the setting aside and variation of judgments or orders, does not apply on the facts of these proceedings, such that the Court cannot set aside or vary the orders that Preston CJ of LEC made in the Second Tree Dispute Proceedings. In relation to r 36.15(1) of the UCPR, which provides for the setting aside of judgments or orders that were made irregularly, illegally or against good faith, there is no evidentiary foundation supporting Ms Xu and Mr Xu’s various allegations of “cover up”, “fraud”, “lying”, and “deceptive, misleading” behaviour and those allegations should be rejected.

41. In relation to her motion (filed 10 February 2025) for summary dismissal of these proceedings, in summary, Ms Johns submits that the present proceedings should be summarily dismissed on the basis that they are an abuse of process, and further, are frivolous and/or vexatious in accordance with r 13.4(1) of the UCPR, because, first, the proceedings are an attempt to relitigate issues which have already been determined in previous proceedings and one in which the principles of res judicata and/or issue estoppel apply (Stokes (by a tutor) v McCourt [2013] NSWSC 1014); and second, the proceedings are an attempt to litigate issues which could and should have been litigated in previous proceedings: Anshun.

42. Ms Johns reminds the Court that the Second Tree Dispute Proceedings were summarily dismissed by Preston CJ of LEC on the grounds of res judicata, issue estoppel and Anshun estoppel, and while dismissal of proceedings does not prevent Ms Xu and Mr Xu from bringing fresh proceedings or claiming the same relief in fresh proceedings, s 91 of the Civil Procedure Act 2005 (NSW) (‘CP Act’) does not necessarily preclude subsequent proceedings being summarily dismissed as an abuse of process: Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700 (‘Baradom Holdings’) at 702-704. Section 91 also does not affect the application of the principles of res judicata and issue estoppel.

Ms Xu and Mr Xu’s attempt to relitigate a cause of action and issues already decided

43. Ms Johns points to the following history. The present proceedings brought by Ms Xu and Mr Xu seek relief comprising, first, removal of Tree 1 (or alternatively, the costs of removal if not removed by Ms Johns); second, removal of Tree 2 (or alternatively, the costs of removal and other costs if not removed by Ms Johns); third, alternatively, installation of a root barrier; fourth, removal of the tree roots; and fifth, the costs of repairing the damage said to have been caused by the tree roots as specified in the 2023 Raul Report; in circumstances where the putative basis for the relief sought is that the roots of the trees have caused damage to the house on the Xu Land.

44. The relief which was ultimately sought in the First Tree Dispute Proceedings included, first, removal of Tree 1 (or the costs of removal and other costs); and second, removal of Tree 2 (or the costs of removal and other costs).

45. The bases upon which the above relief was sought in the First Tree Dispute Proceedings were that, first, Tree 1 is close to the boundary, interferes with the fencing set-up, the trunk and canopy cross the boundary and invade Ms Xu and Mr Xu’s airspace, drops dirty leaves and branches on the Xu Land, and blocks easterly sunlight; and second, Tree 2 crosses the boundary and invades Ms Xu and Mr Xu’s airspace, shades their roof, preventing installation of solar panels, damaged their roof, gutters, downpipes and ceiling, falling leaves, sticks and branches land on the roof, gutters, grounds and damaged gutters, downpipes and blocked stormwater, and had a bird’s nest which was infested with termites which damaged the roof.

46. In determining the First Tree Dispute Proceedings, the Commissioner concluded that, first, there is no evidence that Tree 1 has caused, is causing, or is likely in the near future to cause, damage to the Xu Land or injury to any person, and the fact that branches extend beyond a boundary does not give the Court reason for making orders; and second, neither the photos provided by Ms Xu and Mr Xu, nor the summary of root mapping, nor the Commissioner’s own observations, show that Tree 2 has damaged their house or that it is likely to do so in the near future. Thus, Tree 2 has not caused damage to the Xu Land.

47. The Second Tree Dispute Proceedings sought relief being, first, removal of Tree 1, or the costs of removal; second, removal of Tree 2 and tree roots that crossed the boundary, or the costs of removal; third, damages for the damage to the Xu Land said to be caused by the trees; and fourth, access to the Johns Land to carry out tree works.

48. The bases upon which the above relief was sought were that: Tree 1 and Tree 2 are close to the boundary, the trees’ roots penetrated Ms Xu and Mr Xu’s wall and foundations, and damaged the wall, foundations and other structural elements of their house.

49. In dismissing the Second Tree Dispute Proceedings, Preston CJ of LEC held that Ms Xu and Mr Xu in the First Tree Dispute Proceedings had litigated the statutory cause of action under s 7 of the Trees Act, that Trees 1 and 2 had caused, and were likely to continue to cause, damage to the Xu Land. The effect of the first tree decision was that the cause of action “passed into judgment, so that it is merged and has no longer an independent existence” (res judicata), and the same cause of action cannot be raised between the parties. This is precisely what Ms Xu and Mr Xu now seek to do.

50. Preston CJ of LEC found that the fact that Ms Xu and Mr Xu sought to establish that the two trees caused “different” damage or to adduce further evidence to prove the same cause of action was immaterial. At [77] of the earlier tree decision, Preston CJ of LEC found that the issue of whether the tree roots caused damage to the Xu Land had already been decided in the First Tree Dispute Proceedings, and as such, Ms Xu and Mr Xu were precluded from later bringing proceedings upon the same cause of action and issue.

51. In the above circumstances, Ms Johns submits that the prosecution of the present proceedings is an abuse of process, similarly to the prosecution of the Second Tree Dispute Proceedings because Ms Xu and Mr Xu seek to relitigate the same cause of action and issues for the third time despite this Court having determined in the earlier tree decision that this conduct constituted an abuse of process by operation of res judicata and issue estoppel. And, while Ms Xu and Mr Xu submit that there have been “changed circumstances” since the first tree decision, Ms Johns contends that Ms Xu and Mr Xu would need to rely on changed circumstances in the period since the earlier tree decision in order to justify the institution of the present proceedings and that there is in fact no evidence of any changed circumstances (including the 2025 Raul Report) which would support a new cause of action following the earlier tree decision.

Ms Xu and Mr Xu’s attempt to relitigate issues which could or should have been litigated in previous proceedings

52. Ms Johns notes that Preston CJ of LEC also held in the earlier tree decision (at [80]) that the issue of whether the roots of Tree 1 caused damage to the Xu Land could and should have been raised in the First Tree Dispute Proceedings, and therefore, Ms Xu and Mr Xu were estopped from raising that issue in the Second Tree Dispute Proceedings (as per Anshun). And similarly, the principles of Anshun estoppel would continue to provide an alternative basis to conclude that seeking to relitigate the question of whether Trees 1 and 2 had damaged the Xu Land in these proceedings is an abuse of process.

Frivolous and/or vexatious proceedings

53. Repeating the above matters, Ms Johns submits that the present proceedings are an abuse of process and thereby vexatious, which would also warrant dismissal of these proceedings.

Relief under the VP Act

54. In relation to the relief she seeks under the VP Act, Ms Johns submits that the approach to determining whether to make a vexatious proceedings order against a person involves four steps, being, first, identifying the “proceedings” the subject of the application which are said to be vexatious; second, determining whether any of those proceedings is vexatious within the meaning of s 6 of the VP Act; third, determining whether the person has “frequently” instituted or conducted those vexatious proceedings within the meaning of s 8(1) of the VP Act; and fourth, determining whether to exercise discretion to make a vexatious proceedings order (Collier v Attorney General(NSW) [2023] NSWCA 273 (‘Collier’) at [45]); and that the Court would be satisfied in relation to each step.

55. In relation to identifying “proceedings”, with respect to the matters set out in s 8(2) of the VP Act, Ms Johns submits that there are seven matters commenced by Ms Xu, or Ms Xu and Mr Xu, which are “vexatious proceedings” within the meaning of s 6, being, first, the First Tree Dispute Proceedings; second, the email dated 11 December 2023 calling into question the first tree decision; third, the First Local Court Claim; fourth, the Second Tree Dispute Proceedings; fifth, the applications to relist and reopen or annul the Second Local Court Claim following the court orders given on 12 July 2024; sixth, the present proceedings (including Ms Xu and Mr Xu’s two notices of motion); and seventh, the Federal Court Claim.

56. The First Tree Dispute Proceedings were vexatious in that they were conducted in a way that caused “unreasonable annoyance, delay and detriment” to Ms Johns, as there were numerous claims in those proceedings that were “without reasonable grounds” and the claims were amended on multiple occasions (including without leave and requiring the vacation of hearing dates).

57. The sending of Ms Xu’s email of 11 December 2023 to the Court is an instance of “vexatious proceedings” under the VP Act, because the email, first, addressed “Dear Commissioner, Sir/Madam” and was sent to the Court’s Duty Registrar; second, stated earlier facts and alleged that Ms Johns “is a liar who can NOT be trusted” and that “[Ms Johns] is a mentally unstable person …”; and third, called into question the evidence and findings of fact made by the Commissioner in relation to the alleged “biosecurity crime”. As the email sought to reagitate issues already determined, it amounted to an abuse of process. Further, regardless of Ms Xu’s subjective intention, the email had the effect of “harassing” Ms Johns.

58. The First Local Court Claim was instituted without reasonable grounds as it sought removal of vegetative debris from the Johns Land and repeated the allegation of the “biosecurity crime” which had been raised and determined in the First Tree Dispute Proceedings.

59. The Second Tree Dispute Proceedings were summarily dismissed as an abuse of process (as above). As such, those proceedings fit within the definition of “vexatious proceedings” in the VP Act.

60. The applications following the orders in the Second Local Court Claim (noted at [7(6)] above) were without reasonable grounds as Ms Xu repeatedly made “scandalous” and unsupported allegations against Ms Johns regarding Ms Johns’ conduct of the Second Tree Dispute Proceedings and the Second Local Court Claim, and sought to challenge the decisions in those proceedings which were instituted and conducted in a way that “harassed” and “caused unreasonable annoyance” to Ms Johns.

61. The present proceedings are similarly an abuse of process and are vexatious because, first, they seek to challenge the earlier tree decision without reasonable grounds; second, Ms Xu and Mr Xu again make “scandalous” and unsupported allegations against Ms Johns; and third, these proceedings have been conducted unreasonably as there have been multiple voluminous documents filed with baseless and repetitive claims which cause unreasonable annoyance, delay and detriment to Ms Johns.

62. The Federal Court Claim was conducted in a way that is vexatious because in seeking to set aside the bankruptcy notice, it challenged the earlier tree decision of Preston CJ of LEC and again sought to adduce materials in those proceedings which concerned matters that had already been the subject of litigation.

63. Ms Johns submits that, as Ms Xu and Mr Xu have initiated and conducted a significant number of “vexatious proceedings” against Ms Johns over a relatively short timeframe, being between 6 June 2023 and 20 March 2025, there is a “pattern” of Ms Xu and Mr Xu commencing subsequent proceedings seeking similar relief shortly after receiving an unfavourable decision in the earlier proceedings. The filing of new proceedings reagitating the same issues indicates that Ms Xu and Mr Xu have not accepted court decisions. Additionally, court documents (including statements made by Ms Xu on 24 September 2024 to support her applications against the final orders given in the Second Local Court Claim and the earlier tree decision of Preston CJ of LEC) filed by Ms Xu and Mr Xu state that they do not accept the Court’s rulings and will not comply with court orders (Ex 1, at pp 424, 427). And further, the proceedings have also been conducted in a way that “harasses” and “causes unreasonable annoyance” to Ms Johns, since they make “scandalous” and unsupported allegations.

64. Having regard to the quality of vexatiousness and the nature of the proceedings, Ms Johns submits that the Court ought to find that Ms Xu and Mr Xu have “frequently” initiated and conducted vexatious proceedings and that without the restraint of a vexatious proceedings order Ms Xu and Mr Xu will continue to do so, which will cause “unwarranted” burden on Ms Johns and be a waste of court resources: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [69]-[70].

65. Ms Johns submits that she is entitled to her costs of these proceedings on an indemnity basis because, first, the Court would be satisfied that it is fair and reasonable to so order as Ms Xu and Mr Xu have acted unreasonably in the conduct of the proceedings and the proceedings are an abuse of process and/or are frivolous or vexatious; and second, in circumstances where Ms Xu and Mr Xu have received the earlier tree decision of Preston CJ of LEC, they should have been aware that it would be an abuse of process for them to again seek to relitigate claims in relation to Trees 1 and 2.

Ms Xu and Mr Xu’s position

66. In relation to their motion to permanently stay, rescind or set aside Orders (2) and (3) made by Preston CJ of LEC in the Second Tree Dispute Proceedings (which dismissed those proceedings and ordered Ms Xu and Mr Xu to pay Ms Johns’ costs), Ms Xu and Mr Xu submit:

1. The impugned orders were made by Preston CJ of LEC without giving Ms Xu and Mr Xu an opportunity to “verify key evidence” including material changes in circumstances that warrant relief. The orders overrode the “extensive” evidence they provided by way of the 2023 Raul Report which constitutes an error of law as that evidence was not properly considered by Preston CJ of LEC. As such, the orders do not reflect the “true condition” of the Xu Land or the damage caused by Ms Johns’ trees.

2. Ms Johns’ enforcement of the costs order made by Preston CJ of LEC against Ms Xu and Mr Xu (by proceeding to assessment and thereafter issuing a bankruptcy notice) constitutes a “manifest” injustice in light of the new evidence in the present proceedings; and moreover, in the present circumstances, r 50.7 of the UCPR provides that the Court may stay the enforcement of a judgment or order pending the determination of other proceedings.

3. The Court should set aside the impugned orders pursuant to r 36.15(1) of the UCPR as they were made “irregularly” and “against good faith” in the Second Tree Dispute Proceedings, because, first, Ms Johns did not provide any evidence after 26 September 2023 (the date of the first tree decision), nor did she file any expert witness report supporting her claims regarding res judicata and Anshun estoppel; second, Preston CJ of LEC did not conduct a site inspection (which was a “crucial” step in the Court’s decision-making) and thereafter did not evaluate the tree roots’ damage evidence in the 2023 Raul Report; and third, Ms Johns’ motion (of 10 February 2025) for summary dismissal was filed with a clear intention to “escape/avoid” any site inspection and the evidence verification process, and to prevent a “proper” Court hearing which would “expose” the damage to the Xu Land.

4. The principles expressed in Hinde v Anderson [2009] NSWLEC 1148 (at [35]-[36]) confirm that a fresh application may proceed if circumstances have changed since the earlier decision. In the present proceedings, the relevant changed circumstances include, first, the presence of new tree roots’ damage discovered after October or November 2023; and second, the new expert reports verifying that damage, being the 2023 Raul Report and the 2025 Raul Report.

5. An order to stay the impugned orders would also assist the management of proceedings 2024/00147072 in the Court of Appeal because Ms Xu and Mr Xu now intend to file a notice of motion for leave to appeal out of time. As such, an order staying the earlier tree decision would, first, avoid “duplicating” proceedings; second, promote certainty as to the status of the Second Tree Dispute Proceedings; and third, support Ms Xu and Mr Xu’s request to avoid paying a security deposit demanded by Ms Johns during the appeal process.

67. In response to Ms Johns’ proposed application of res judicata, issue estoppel and Anshun estoppel to the present tree dispute proceedings, Ms Xu and Mr Xu submit:

1. They are not attempting to relitigate old claims because the present proceedings are based on “different” evidence which amounts to new claims. Moreover, Preston CJ of LEC made many errors of law and his understanding and application of res judicata estoppel and Anshun estoppel in the Second Tree Dispute Proceedings was “wrong” as it did not satisfy the “strict” preconditions of these rules, which require “every” issue (namely, the tree items causing the damage) and cause of action (namely, the damaged items) in the Second Tree Dispute Proceedings to be “exact[ly] the same” as the First Tree Dispute Proceedings, in circumstances where, again, Ms Johns has never provided any “updated” evidence to prove that all the tree items or all the damaged items were exactly the same as the First Tree Dispute Proceedings.

2. Conversely, Ms Xu and Mr Xu can establish on the available evidence that the present proceedings do not involve the same issues or cause of action as the prior proceedings because, first, the tree roots identified by Ms Xu and Mr Xu are in “completely different” locations; second, the property damage attributable to those tree roots is not the same; and third, the fact that these issues are not the same is “starkly” obvious in the 2023 Raul Report and the 2025 Raul Report, which show a “different” cause of action.

68. In relation to Ms Johns’ motion for summary dismissal of these proceedings pursuant to r 13.4 of the UCPR, Ms Xu and Mr Xu submit:

1. There is no basis for summary dismissal because the present proceedings arise from “new physical evidence” of tree root intrusion and consequential damage, as independently verified by the 2025 Raul Report and 2023 Raul Report.

2. Ms Johns’ application is unsupported by new evidence, as the affidavits of Mr Bick are “largely procedural or historical” in nature and do not provide any expert evidence contradicting the current tree roots’ damage.

3. Ms Johns has continued to commit “cover up fraud” and engage in “misleading” and “deceptive” behaviour in her present application seeking summary dismissal of these proceedings on the basis that they are an abuse of process because they are frivolous or vexatious, in circumstances where Preston CJ of LEC had “denied” that particular claim in the Second Tree Dispute Proceedings.

69. In relation to Ms Johns’ application for a vexatious proceedings order under s 8 of the VP Act to stay all proceedings in this Court already instituted by Ms Xu and Mr Xu and to prohibit them from instituting proceedings in this Court without leave of the Court, Ms Xu and Mr Xu submit:

1. There are no grounds for making vexatious proceedings orders pursuant to the VP Act. The orders sought by Ms Johns under s 8(8)(a) and (b) of the VP Act are “extraordinary remedies” that should only be granted when a clear pattern of abuse is shown.

2. The present proceedings instituted by Ms Xu and Mr Xu are a consequence of Ms Johns gaining a “fraudulently obtained order” in the Second Tree Dispute Proceedings, and any order or relief (including any vexatious proceedings order sought under s 8(8)(a) of the VP Act) cannot “involve” any order obtained by “fraud”, which is the case here because of Ms Johns’ “deceptive” and “misleading” behaviour preventing the Court from receiving proper evidence verification and conducting a site inspection.

3. Ms Johns’ conduct both in the Second Tree Dispute Proceedings and the present proceedings amounts to “ongoing dishonesty” and “unreasonable pestering”. It is an attempt to interrupt Court proceedings and discloses no “proper reasoning” or “evidence for dismissal”, which should lead the Court to dismiss her application for a vexatious proceedings order under s 8(8)(b) of the VP Act.

4. Ms Johns has committed many “vexatious acts”, including, first, “openly l[ying]” to the Community Justice Centre regarding the “fence set-up”; second, “openly threaten[ing]” Ms Xu and Mr Xu regarding the filing of their notice of intention to appeal (proceedings 2024/00147072) to the Court of Appeal; third, “[un]reasonably” refusing the invitation of Ms Xu and Mr Xu to inspect the “open” trench to observe evidence of damage from the tree roots on 12 March 2025; and fourth, “[un]reasonably” refusing Ms Xu and Mr Xu’s arborist’s recommendation for a joint application to the local council to prune the tree roots. These acts demonstrate Ms Johns’ “clear intention” to deny factual, merit-based and admissible evidence to resolve the tree dispute issues.

5. The present proceedings were brought under ss 7 and 9 of the Trees Act which do not impose a “frequency limit” or “pattern rule” for subsequent tree disputes, in contrast to s 8(1) of the VP Act, such that s 8(1) should not apply in these circumstances. Further, as Ms Johns did not reference s 8(1) in her notice of motion, leave of the Court would be required for her to apply for a vexatious proceedings order under s 8(1), and she has not obtained that leave.

70. In relation to their motion which seeks that these Class 2 proceedings proceed in the usual manner to an onsite Court inspection and hearing, Ms Xu and Mr Xu submit:

1. The trench and tree roots’ exposure remain “open” and were created solely to provide urgent visual and structural evidence of roots’ penetration and property damage.

2. The 2025 Raul Report shows large tree roots penetrating the foundations and walls and causing “serious” structural damage, and identifies safety hazards and recommends remedial works.

3. In the Second Tree Dispute Proceedings, Ms Xu and Mr Xu’s case was dismissed by Preston CJ of LEC without a site inspection. This represented serious procedural unfairness as it overrode the evidence relied on by Ms Xu and Mr Xu, amounting to an error of law which should be corrected through their motion.

71. In relation to costs, Ms Xu and Mr Xu submit that they should be awarded their costs on an indemnity basis pursuant to r 3.7 of the Land and Environment Court Rules 2007 (NSW) (‘Court Rules’) because Ms Johns has acted unreasonably and vexatiously by reason of her motion and her conduct in both the Second Tree Dispute Proceedings and the present proceedings. Further, Ms Johns’ “ongoing” application for summary dismissal has caused a tremendous waste of the Court’s resources and “unbearable loss” to Ms Xu and Mr Xu, including, first, the mental and physical suffering experienced by Ms Xu and Mr Xu because of the “unfair” orders made by Preston CJ of LEC in the Second Tree Dispute Proceedings; and second, the “huge” financial loss which Ms Xu and Mr Xu incurred such that they cannot start repairing the property damaged by Ms Johns’ trees and tree roots.

Consideration

72. Doing my best to understand and consider the evidence and extensive submissions of Ms Xu and Mr Xu and, in particular, their frequent use of extravagant and repetitious language, I remain conscious of the comments in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at [2], where Kirby P stated that in cases presented by a litigant in person, the Court must be:

“… specially vigilant that they perform their functions correctly … Concealed in the lay rhetoric and inefficient presentation may be a just case.”

73. Although the hearing of the three notices of motion proceeded together, the underlying issues for determination are as follows:

1. Whether the Court has jurisdiction in the present proceedings to disturb or stay Orders (2) and (3) made by Preston CJ of LEC in the earlier tree decision at [87].

2. Whether these proceedings should be dismissed summarily.

3. Whether the Court should make orders under the VP Act staying proceedings in this Court instituted by Ms Xu and Mr Xu against Ms Johns and/or prohibiting Ms Xu and Mr Xu from instituting proceedings in this Court without leave.

Ms Xu and Mr Xu’s application to permanently stay, set aside, or rescind the orders made in the earlier tree decision

74. Ms Xu and Mr Xu rely upon r 50.7 of the UCPR to support their application for a permanent stay of the impugned orders made by Preston CJ of LEC in the earlier tree decision. I consider that their concern in relation to that decision (and the obvious consequences thereof) is the gravamen of their claims.

75. Their further amended motion filed 19 March 2025 repeatedly states that, “[in the Second Tree Dispute Proceedings, Ms Johns] committed COVER UP FRAUD, DECEPTIVE, MISLEADING TO THE COURT … [and] gained the unfair and injustice decision” and made detailed statements that they had been unfairly treated. These and similar contentions in relation to Ms Johns’ conduct are repeated many times in the extensive material provided by Ms Xu and Mr Xu to this Court as well as to the Federal Circuit and Family Court, the Supreme Court, the District Court, and the Local Court.

76. As submitted by Ms Johns, r 50.7 of the UCPR applies to appeals to the Supreme Court from lower courts and relates to stays pending appeal, which is inapplicable in the present proceedings and cannot be relied upon to support Ms Xu and Mr Xu’s application. As stated in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [44]:

“The general rule is that final orders regularly made and formally entered can only be challenged on appeal or in proceedings to set aside the judgment for fraud.”

77. Further, Div 4 of Pt 36 of the UCPR provides for: the setting aside of judgments or orders that were made or entered irregularly, illegally or against good faith (r 36.15(1)); the setting aside of judgments or orders by consent of the parties (r 36.15(2)); the setting aside or variation of judgments before (or within 14 days after) entering (r 36.16(1), (3A), (3B)); the setting aside or variation of certain orders or judgments in the absence of parties or in chambers (r 36.16(2)); the setting aside or variation of any judgment or order except so far as it is determined or dismisses any claim for relief (r 36.16(3)); correction of a mistake or an error in a judgment or order (r 36.17); and variation of a judgment or an order against a party operating under an unregistered business name (r 36.18).

78. I have considered all the evidence marshalled and the submissions of Ms Xu and Mr Xu and note that there is no evidence of any notice of appeal being filed in respect of the earlier tree decision, and moreover, I consider that none of the above circumstances apply and, as such, it is simply not open for the Court in these proceedings to set aside or vary the orders made by Preston CJ of LEC in the earlier tree decision.

79. In any event, given Ms Xu and Mr Xu’s concern relating to Preston CJ of LEC’s conduct and reasoning and their numerous references to orders being “fraudulently obtained”, “procedurally unfair” and numerous “Errors of Law” in the Chief Judge’s application of the principles of Anshun estoppel, res judicata and denial of procedural fairness in not inspecting the Xu Land, and to his Honour being “wildly wrong” in relying upon documents filed by Ms Johns, I consider that any such appeal (even if leave to appeal out of time was to be sought and granted) would be doomed to fail.

80. For the above reasons, the motion filed 23 December 2024 (and most recently amended on 19 March 2025) should be dismissed.

Ms Johns’ application for summary dismissal

81. Rule 13.4 of the UCPR provides that the Court may order any proceedings be dismissed if the proceedings are frivolous or vexatious; no reasonable cause of action is disclosed; or the proceedings are an abuse of the process of the Court.

82. I am conscious that an order for summary dismissal is interlocutory and not final: Macatangay v State of New South Wales(No 2) [2009] NSWCA 272 at [11]. Further, s 91 of the CP Act provides, inter alia, that dismissal of proceedings does not, subject to the terms on which an order for dismissal was made, prevent a party from bringing fresh proceedings or claiming the same relief in fresh proceedings. However, s 91 does not itself preclude subsequent proceedings from being summarily dismissed as an abuse of process (Baradom Holdings at 702-704), nor does it prevent the operation of the principles of res judicata and estoppel: Cannuli v Cannuli [2018] NSWSC 937 at [21]-[30].

83. I find that the present proceedings are an attempt to relitigate a cause of action and issues which have already been decided, and as such, they are an abuse of process. My reasons, which are reflective of Ms Johns’ submissions noted above and similar to the reasoning of Preston CJ of LEC in the earlier tree decision, are as follows.

84. First, the present proceedings seek relief including, first, removal of Tree 1 (or the costs of removal if not removed by Ms Johns); second, removal of Tree 2, or the costs of removal and other costs and, in the alternative, the installation of a root barrier as well as the removal of “tree roots” and a claim for costs of repairing damage said to have been caused by the tree roots. It is clear, as submitted by Ms Johns, that the putative basis for the relief is that the roots of the trees have caused damage to the house on the Xu Land.

85. As noted earlier in this judgment, the relief sought ultimately in the First Tree Dispute Proceedings was removal of Tree 1 (or the costs of removal and other costs) and removal of Tree 2 (or costs of removal and other costs). Moreover, the basis upon which this relief was sought was, in relation to Tree 1, first, it was too close to the boundary and interfered with the fencing; second, the trunk and canopy crossed the boundary and invaded Ms Xu and Mr Xu’s airspace; third, the tree dropped dirty leaves and branches on the Xu Land; and fourth, it blocked easterly sunlight. In relation to Tree 2, first, the tree crossed the boundary and invaded Ms Xu and Mr Xu’s airspace; second, the tree shaded their roof, preventing installation of solar panels; third, the tree damaged their roof, gutters, downpipes and ceiling; fourth, falling leaves, sticks and branches damaged gutters, downpipes and blocked stormwater; and fifth, the tree had a bird’s nest infested with termites which damaged the roof.

86. Before the Commissioner, Ms Xu and Mr Xu relied upon “root mapping investigation results” which sought to claim that the tree “roots invaded the [Xu Land], and reached to the property foundation structure, threatening to the house structural stability”.

87. In those circumstances, the Commissioner found:

“Tree 1

[7] Tree 1 is a Loquat (Eriobotrya japonica) near the common boundary. The applicants claim that the tree drops debris and has ‘invaded’ their air space. Having inspected the tree, I found it to be healthy and structurally sound. There is no evidence before me that that tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or injury to any person. The fact that branches extend beyond a boundary does not give the Court reason for making orders. It follows that I cannot make any orders regarding Tree 1.

…

[13] The applicants engaged someone to do some digging alongside her dwelling to locate tree roots, or to carry out ‘root-mapping’. Rather than provide an expert report, Ms Xu provided her own summary of the findings. Some woody roots were found near her dwelling, but this is unsurprising given the proximity of Tree 2. Neither the photos provided by the applicants, nor the summary of root-mapping, nor my own observations, show that the tree has damaged the applicants’ dwelling or that it is likely to do so in the near future.”

88. In the Second Tree Dispute Proceedings, Ms Xu and Mr Xu sought relief including, first, the removal of Tree 1 (or costs of removal); second, the removal of Tree 2 (including tree roots that cross the boundary line or costs of removal); and third, damages for damage to property.

89. The bases upon which the above relief was sought were, first, in relation to Tree 1, that it is close to the boundary, and that “this tree[‘s] roots reached, and penetrated into [… Ms Xu and Mr Xu’s] wall and foundation, damaged [… Ms Xu and Mr Xu’s] property wall, foundation [and] other structural elements”; and second, in relation to Tree 2, that it is close to the boundary and “this tree[‘s] roots reached, penetrated [… Ms Xu and Mr Xu’s] wall and foundation…”.

90. As noted earlier in this judgment, Preston CJ of LEC summarily dismissed the Second Tree Dispute Proceedings for the reasons which are summarised at [27]-[30] above. In particular, the Chief Judge stated at [72]-[73] of the earlier tree decision:

“[72] The effect of the Commissioner's determination of Ms and Mr Xu’s application in the first tree dispute proceedings was that the cause of action ‘passed into judgment, so that it is merged and has no longer an independent existence’: Blair v Curran at 532. This is the meaning of res judicata: the ‘thing’, the cause of action, has been decided. That cause of action cannot afterwards be raised between the same parties.

[73] Yet, that is precisely what Ms and Mr Xu seek to do in the current proceedings. They seek to re‑litigate the same cause of action under s 7 of the Trees Act that the same two trees on Ms Johns’s land, the Loquat and Sydney Peppermint, have caused damage to Ms and Mr Xu’s property. The fact that they seek to establish that the two trees have caused different damage to their property or to adduce further evidence to prove the cause of action, is immaterial. That cause of action for damage to their property caused by the trees on Ms Johns’s land has been decided, and precludes Ms and Mr Xu later bringing proceedings upon that cause of action.”

91. His Honour found that the issue of whether the roots of the trees caused damage to the house on the Xu Land had been decided, stating at [77]-[78]:

“[77] The issue of whether the trees’ roots caused damage to Ms and Mr Xu’s property was necessarily decided by the Commissioner, as it was central to Ms and Mr Xu’s claim that the trees should be removed because they have caused damage to their property.

[78] The Commissioner’s determination of the issue of fact of whether the trees’ roots caused damage to Ms and Mr Xu’s property disposed once for all of the issue, so that it cannot afterwards be raised by the same parties. Ms and Mr Xu are therefore estopped from raising the issue again in the current proceedings. As this issue is now the central issue in the current proceedings, the estoppel operates to justify the dismissal of the proceedings.”

92. Although Ms Xu and Mr Xu submit that there have been “changed circumstances” in the present proceedings, I do not find this to be the case. At the hearing on 23 April and 12 May 2025, Ms Xu repeatedly suggested that Preston CJ of LEC had not considered the evidence of Mr Raul (2023 Raul Report) and that it was “completely overlooked” and “not valuated” (Tcpt, 23 April 2025, p 79(15-50)). However, it is clear that Preston CJ of LEC had considered that material in some detail.

93. Further, in the present proceedings Ms Xu and Mr Xu rely upon the 2025 Raul Report as well as the 2023 Raul Report. The 2023 Raul Report was the report considered by Preston CJ of LEC in the earlier tree decision, where his Honour specifically found that the attempt to rely upon what may be new evidence to establish that the trees had caused damage did not affect or change the fact that the cause of action for the damage caused by the trees’ roots had been decided by the Commissioner in the First Tree Dispute Proceedings and effectively precluded the bringing of later proceedings upon the same cause of action.

94. In considering the 2025 Raul Report, I find that there is effectively no evidence of changed circumstances since the earlier tree decision. As Ms Johns submitted, there is nothing in this report that indicates the trees’ roots have done anything new or different in the intervening period and, despite a “new” inspection on 25 March 2025, Mr Raul maintains the view he expressed at the time of the 2023 Raul Report regarding the nature and extent of damage caused by the trees’ roots.

95. Apart from the above, while it may be (as considered by Preston CJ of LEC in the earlier tree decision) that the First Tree Dispute Proceedings did not explicitly claim that there was damage to the foundations of the house on the Xu Land attributable to Tree 1 (although the Commissioner made discrete findings in relation to Tree 1 as well as Tree 2), that claim was made in the Second Tree Dispute Proceedings and is now made in the present proceedings. As recorded earlier in this judgment, Preston CJ of LEC found that irrespective of whether the issue of damage caused by the roots of Tree 1 (as opposed to Tree 2) to the house on the Xu Land was determined in the First Tree Dispute Proceedings, it was an issue that could and should have been raised in those proceedings applying the Anshun principle, and, as such, Ms Xu and Mr Xu were estopped from raising that issue in the Second Tree Dispute Proceedings. I find that the same reasoning applies in the present circumstances, and therefore Anshun estoppel provides an alternative basis to conclude that seeking to reagitate that claim in these proceedings is an abuse of process.

96. For the above reasons, I find that Ms Johns is entitled to the relief she seeks and that these proceedings (including both of Ms Xu and Mr Xu’s motions) should be dismissed. In summary, it follows that I do not accept the submissions of Ms Xu and Mr Xu noted at [66]-[71] above. In particular, I consider that there is no error in Preston CJ of LEC’s consideration of the facts or in his Honour’s application of the relevant principles (and findings of fact and making of orders) as challenged by Ms Xu and Mr Xu, such that the impugned orders should not be set aside. Further, there is no effective evidence of “changed circumstances” since the earlier tree decision having regard to the 2025 Raul Report, and I consider that this Court does not have jurisdiction in these proceedings to disturb, stay, or set aside the orders made by Preston CJ of LEC in the earlier tree decision.

97. While my findings above are effectively dispositive of the present proceedings, given that detailed submissions were made in relation to relief under the VP Act, I now consider that claim.

Orders under the VP Act

Applicable statutory provisions and case law

98. Section 8(1) and (2) of the VP Act relevantly provides:

(1)   When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that—

(a)   the person has frequently instituted or conducted vexatious proceedings in Australia, or

…

(2)   For the purposes of subsection (1), an authorised court may have regard to—

(a)   proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

(b)   orders made by any Australian court or tribunal (including orders made before the commencement of this section), and

(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.

99. Section 8(8) of the VP Act provides:

(8)   Orders that may be made by Land and Environment Court The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person—

(a)   an order staying all or part of any proceedings in the Court already instituted by the person,

(b)   an order prohibiting the person from instituting proceedings in the Court,

(c)   any other order that the Court considers appropriate in relation to proceedings by the person in the Court.

100. “Proceedings” are widely defined under s 4 of the VP Act to include:

…

(a)   any civil proceedings, criminal proceedings or proceedings before a tribunal, and

(b)   any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(c)   any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and

(d)   any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and

(e)   any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.

101. “Vexatious proceedings” are defined in s 6 of the VP Act to include:

…

(a)   proceedings that are an abuse of the process of a court or tribunal, and

(b)   proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)   proceedings instituted or pursued without reasonable ground, and

(d)   proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.

102. In the present circumstances, it is “possible that a number of ‘proceedings’ may arise within the context of one case” (Collier at [43]; Proiettiv Proietti [2024] NSWCA 48 (‘Proietti’) at [10]) and such proceedings may be constituted by “any calling into question of a decision” (as per s 4(e) of the VP Act).

103. Simply stated, the Court may, having regard to the factors in s 8(2) of the VP Act, including evidence of any decision or finding of fact of any court or tribunal hearing of such proceedings or making of such orders, even if that evidence would otherwise not be admissible, make a vexatious proceedings order under s 8(1) against a person where that person frequently institutes or conducts proceedings which satisfy the criteria in s 6. The word “frequently” in this context imposes a “relatively low threshold”: Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 (‘Potier’) at [114]-[118].

104. The effect of the above provisions is that vexatious proceedings orders may preclude further litigation concerning the subject matter of the impugned vexatious proceedings and not subject matter that is unrelated to those proceedings, and such orders may also be imposed with temporal limitations. Despite this broad power, the Court should exercise restraint when considering the scope of a vexatious proceedings order, recognising the important principle of open access to justice: Potier at [17] (per Basten JA).

105. Determining whether to make a vexatious proceedings order involves the four steps of analysis noted in Collier at [45] (and earlier in Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 at [13]-[15]) as follows:

“[45]…

(1)    identify the ‘proceedings’ the subject of the application which are said to be vexatious;

(2) determine which, if any, of those proceedings is vexatious within the meaning of s 6 of the Act;

(3) determine (relevantly) whether the person has “frequently” instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1) of the Act;

(4) determine the manner in which the discretion granted by s 8 is to be exercised (if at all).”

106. In considering the first two steps of analysis I am conscious that, first, the doctrine of abuse of process can be conveniently characterised as circumstances “where the use of the [C]ourt’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute” (UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1]); second, the abuse of process doctrine is broader in scope than the preclusive estoppels, and can be available to relieve against injustice to a party which might otherwise be occasioned where a party to subsequent proceedings is not bound by an estoppel (Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]); and third, proceedings may amount to an abuse of process irrespective of the intention of the moving party (Collier at [56]-[58]), and this is reflected in the terms of s 6(d) of the VP Act: Proietti at [15].

107. In relation to identification of proceedings, while Ms Johns submits that, taking into account the broad definition of “proceedings” under s 4 of the VP Act, each of the seven “proceedings” noted at [55] above is properly considered to be vexatious, she does not submit that the Second Local Court Claim or the application to the District Court seeking leave to appeal against the orders in the Second Local Court Claim are vexatious as those proceedings have not been finally determined. Despite this, she maintains that the First Tree Dispute Proceedings were vexatious because of the manner in which they were conducted (raising a number of claims that were without reasonable grounds and that were amended on a number of occasions).

108. In relation to the First Tree Dispute Proceedings, given that Ms Xu and Mr Xu presented and conducted this (initial) matter without legal representation and that may explain the fact that a number of claims were unmaintainable, I do not find that, on their own, the First Tree Dispute Proceedings fall within the definition of “vexatious proceedings” in s 6 of the VP Act. Further, in my consideration of the various inflammatory and flamboyant expressions frequently used by Ms Xu and Mr Xu in their submissions (and later, various Court documents including pleadings), I remain conscious that while Ms Xu and Mr Xu have appeared in matters without legal representation, the manner and presentation of their submissions displays an understanding of legal principles. Moreover, while the extended, if not extravagant, claims (and language used) in the First Tree Dispute Proceedings (which I have noted at [8]-[13] above) may be explained by their unrepresented position, as will be seen, I do not consider that the later “proceedings” (and conduct) can be explained by their unrepresented position.

109. Ms Johns next contends that the email correspondence of 11 December 2023 from Ms Xu addressed “Dear Commissioner, Sir/Madam” (apparently sent to the Court) should be considered “proceedings” for the purpose of the VP Act. I accept Ms Johns’ submission that the intended recipient of that correspondence would have been the Commissioner who determined the First Tree Dispute Proceedings and that the nature, tone and content of the correspondence is unacceptable and unsupported by any evidence, particularly stating that “[Ms Johns] is a liar who can NOT be trusted”, and no doubt calling into question the evidence and findings made by the Commissioner in relation to the alleged commission by Ms Johns of a “biosecurity crime” and the like, and that the correspondence seeks to reagitate issues already determined. As such, I consider that the email correspondence fits within the definition in s 4(e) of the VP Act and constitutes “vexatious proceedings” pursuant to s 6(a), (c) and (d).

110. Ms Johns submits that the First Local Court Claim did not disclose a reasonable cause of action as Ms Xu and Mr Xu repeated the allegation of “biosecurity crime” already raised and determined in the First Tree Dispute Proceedings (noted at [12]), noting that the First Local Court Claim was later withdrawn on 15 December 2023.

111. Ms Johns next submits that the Second Tree Dispute Proceedings were summarily dismissed by Preston CJ of LEC as an abuse of process. I accept Ms Johns’ submissions at [58]-[59] above and noting my comments at [106] regarding abuse of process, I find that both the First Local Court Claim and the Second Tree Dispute Proceedings are both “proceedings” within the definition of s 4 of the VP Act and “vexatious proceedings” pursuant to s 6.

112. I also find that the applications made by Ms Xu and Mr Xu on 30 October and 19 November 2024 to relist and reopen (or annul) the Second Local Court Claim (noted at [7(6)] above) following the final orders that were entered by consent were “proceedings” as provided for in s 4(d) and (e) of the VP Act as they were without reasonable grounds and were conducted in a way that caused unreasonable annoyance and delay. The statement of Ms Xu dated 24 September 2024 supporting the applications made unsupported allegations against both Ms Johns and her legal representatives and sought to challenge the decisions in the Second Local Court Claim and the Second Tree Dispute Proceedings. The cover sheet to Ms Xu’s statement of 24 September 2024 filed in the Local Court on 19 November 2024, stated as follows:

“Attached below is the STATEMENT OF [Ms Xu] – [24.09.2024], [l]odged [in] the Supreme Court (Cost Court).

It disclosed how the Respondent Eileen Claire Johns together with her hired solicitor and counsel were committing cover up fraud, deceptive, misleading to the Land and Environment Court, Preston Chief Judge for a wildly wrong decision.

Now, it is under the investigation of Supreme Court (Cost Court).”

113. This statement contained serious allegations against each of Ms Johns, an expert witness retained by Ms Johns, and Ms Johns’ legal representatives in relation to the conduct of the Second Local Court Claim (and the Second Tree Dispute Proceedings) and sought to challenge the Local Court’s decision in relation to that claim, while stating (at [25]), “…I will let everyone know how [Ms Johns’] evil nature of cover up fraudulence, deceptive, misled the LEC Preston Chief Judge [who] made a wildly wrong decision”. That statement also identified ten separate “Errors of Law” said to be made by Preston CJ of LEC in the earlier tree decision.

114. I find that the applications (of 30 October 2024 and 19 November 2024) were “proceedings” (as defined in s 4 of the VP Act) and, as submitted by Ms Johns, were conducted in a way that harassed and caused unreasonable annoyance to Ms Johns and were “vexatious proceedings” pursuant to s 6.

115. In relation to the present proceedings, I find that these proceedings (including the two notices of motion filed by Ms Xu and Mr Xu) are vexatious within the meaning of s 6 of the VP Act because, first, they are an abuse of process as they seek to challenge the decision (and orders) in the Second Tree Dispute Proceedings which I have found is without reasonable grounds; second, Ms Xu and Mr Xu continue to make serious and unsupported allegations against Ms Johns and her legal representatives; and third, they have been conducted in an unreasonable manner comprising extensive documentation and repetitive allegations which I consider causes unreasonable annoyance, delay and detriment to Ms Johns.

116. In relation to the Federal Court Claim, while I have some concern as to whether this matter qualifies as “proceedings” within s 4 of the VP Act, I consider that Ms Xu and Mr Xu’s conduct seeking to impugn the issue of the bankruptcy notice on 3 March 2025 (served upon Ms Xu and Mr Xu on 30 March 2025) by filing a notice of motion in the Federal Circuit and Family Court and relying upon the detailed affidavits of Ms Xu dated 22 March 2025, 1 April 2025 and 7 April 2025 and the written submissions dated 7 April 2025 which challenge (in similar terms to those used in the various earlier proceedings) the registering of certificates of assessment of costs in the Supreme Court and the issuing of the judgment following the contested assessment of the costs ordered by Preston CJ of LEC in the Second Tree Dispute Proceedings, falls under “proceedings” in s 4 of the VP Act and “vexatious proceedings” in s 6(c) and (d). I make this finding based upon the continued allegations that the orders of Preston CJ of LEC were obtained by “unfair and injustice … due to [Ms Johns’] commitment of COVER UP FRAUD, DECEPETIVE, MISLEADING TO THE COURT (under the assistance of the legal professionals)”.

117. In summary, I find that, of the matters identified by Ms Johns (and noted at [55] above) as “proceedings” (within the meaning of s 4 of the VP Act), each of the email correspondence of 11 December 2023, the First Local Court Claim, the Second Tree Dispute Proceedings, the applications made on 30 October and 19 November 2024 to relist and reopen or annul the Second Local Court Claim, the institution of the present proceedings (including the service of Ms Xu and Mr Xu’s two notices of motion), and the Federal Court Claim, constitutes “vexatious proceedings” in the sense otherwise provided for in s 6 of the VP Act. Each of the proceedings concerns the vegetation and landscaping near the boundary between the Xu Land and the Johns Land, and the expense and annoyance caused by the proceedings is unreasonable and disproportionate to the issues involved.

118. In these circumstances I now consider whether the proceedings which I have found to be “vexatious proceedings” have been “frequently instituted or conducted” and, in doing so, I note the observation of the Court of Appeal in Proietti at [114] that:

“… Repeatedly seeking to reagitate issues already decided in this way, and doing so with some rapidity, readily meets the relatively low threshold involved in the notion [of ‘frequently’].”

119. Having found that the “proceedings” noted at [117] above can be described as “vexatious proceedings” pursuant to s 6 of the VP Act, given that each was brought within a relatively short space and time, being between September 2023 and March 2025, I find that they meet the description of “frequently instituted” in s 8(1)(a) of the VP Act.

120. In light of my findings, there remains a discretion to be exercised acknowledging that the Court should exercise restraint when considering the scope of a vexatious proceedings order and that the limitation on access to the Court should be “to no greater extent than is proportionate to the needs of the particular case”: Potier at [17]; Proietti at [22].

121. In the present circumstances, I am conscious that the vexatious proceedings have all been associated with concerns regarding the vegetation and landscaping near or on the boundary between the Xu Land and the Johns Land and that, in effect, the expense and annoyance caused by the various proceedings is unreasonable and disproportionate to the issues involved.

122. In the exercise of my discretion, I remain conscious that any orders I make under the VP Act will not affect proceedings in other courts such that they would not preclude Ms Xu and Mr Xu from seeking leave to appeal the orders of Preston CJ of LEC or from conducting proceedings in the Local Court or the District Court.

123. Given my findings above, I consider that it is appropriate to make a vexatious proceedings order under the VP Act tailored to the present circumstances. I am satisfied that it is clear from the procedural history that Ms Xu and Mr Xu will not or cannot accept that their claims under the Trees Act (at least in the present circumstances in relation to damage caused by trees on the Johns Land) have been properly determined by the Court and that, within a limited timeframe, attempts to relitigate those claims in this Court will be both futile and an abuse of the Court’s process. I am also satisfied that, unless a vexatious proceedings order is made, Ms Xu and Mr Xu will persist in seeking to reopen orders made by this Court, with the consequence that these further applications will inevitably involve inconvenience, unnecessary expense and a waste of the Court’s limited time and resources. They are also likely to impose an unwarranted burden on Ms Johns, who is now 80 years old and has lived in her house for the past 50 years.

124. Balancing all of the matters above and the interests of justice, I consider that a discrete order with a temporal limitation should be made under s 8(8)(c) of the VP Act which prohibits Ms Xu and Mr Xu from instituting proceedings in this Court against Ms Johns (or any other owner or resident of 41 Valerie Avenue, Chatswood West) for a period of two years without leave of this Court.

125. For completeness, I note that although Ms Johns submitted that the Court should consider whether to make a recommendation (pursuant to s 8(6) of the VP Act) to the Attorney General to consider applying for a vexatious proceedings order in relation to Ms Xu and Mr Xu which applies in all NSW courts as their conduct is indicative of a pattern of behaviour that demonstrates Ms Xu and Mr Xu are likely to commence “vexatious proceedings” in other courts if not restrained by a vexatious proceedings order, I do not consider that such a recommendation is appropriate given the relief I have granted.

Costs

126. Rule 3.7 of the Court Rules applies to these proceedings and provides, inter alia, that the Court is not to make an order for costs unless the Court considers that the making of such an order is fair and reasonable in the circumstances.

127. Rule 3.7(3) sets out (without limitation) circumstances in which the Court might consider it fair and reasonable to order costs including r 3.7(3)(c), (d) and (f). The manner in which the Court considers awarding costs in Class 2 tree dispute proceedings is now well-known and not repeated: Maurici v Kaldor [2025] NSWLEC 20 at [42]-[49]. Remaining conscious that some restraint may be appropriate when considering the conduct of unrepresented litigants, in the present circumstances and given my findings above, I consider that it is just and reasonable to order that Ms Xu and Mr Xu pay Ms Johns’ costs of her motion filed 10 February 2025.

Orders

128. The orders of the Court are:

1. These proceedings 2024/00464408, including the notices of motion filed 23 December 2024 (amended on 17 January 2025 and further amended on 19 March 2025) and 10 March 2025, brought by Xiu Yan Xu and Xiabing Xu, are dismissed.

2. Xiu Yan Xu and Xiabing Xu are prohibited from instituting proceedings in the Land and Environment Court against Eileen Claire Johns and any other owner or resident of 41 Valerie Avenue, Chatswood West for a period of two years without leave of the Land and Environment Court, pursuant to s 8(8)(c) of the Vexatious Proceedings Act 2008 (NSW).

3. Xiu Yan Xu and Xiabing Xu are to pay the costs of Eileen Claire Johns of the notice of motion filed 10 February 2025.

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Decision last updated: 07 August 2025