Xu v Johns - [2024] NSWLEC 33

Land and Environment Court

New South Wales

Medium Neutral Citation: Xu v Johns [2024] NSWLEC 33
Hearing dates: 26 March 2024
Date of orders: 26 March 2024
Decision date: 26 March 2024
Jurisdiction: Class 2
Before: Preston CJ
Decision:
(1)   The name of the respondent is changed from Eileen Claire Seccombe to Eileen Claire Johns.
(2)   The proceedings are dismissed.
(3)   The applicants are to pay the respondent's costs of the proceedings.

Catchwords:
CIVIL PROCEDURE – Summary disposal – dismissal of proceedings – second proceedings litigating same cause of action and issues – abuse of process – effect of judgment in first proceedings – res judicata – issue estoppel – Anshun estoppel

Legislation Cited:
Dividing Fences Act 1991 (NSW)
Local Court Act 2007 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW), Part 2, ss 5, 7, 10(2)
Land and Environment Court Rules 2007 (NSW), r 3.7
Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited:
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Moore v Inglis (1976) 50 ALJR 589
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 509; [1981] HCA 45
Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Xu v Seccombe [2023] NSWLEC 1670

Category: Procedural rulings
Parties: Xiu Yan Xu (First Applicant)
Xiabing Xu (Second Applicant)
Eileen Claire Johns (Respondent)
Representation:
Xiu Yan Xu (Self-represented and for Second Applicant)

Counsel:
L Sims (Respondent)
Solicitors:
Bick & Steele (Respondent)

File Number(s): 2023/460920
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 2

Citation:

[2023] NSWLEC 1670

Date of Decision:

26 September 2023

Before:

Galwey AC

File Number(s):

2023/180739

JUDGMENT

An application for summary dismissal of a tree dispute

Ms Eileen Johns is the neighbour of Ms Xiu Yan Xu and Mr Xiabing Xu. Ms Johns lives at 41 Valerie Avenue, Chatswood West, and Ms Xu and her son, Mr Xu, own 39 Valerie Avenue, Chatswood West. For ease of reference I will refer to the applicants as Ms and Mr Xu, but I do not intend by that reference to suggest that they are married, as Mr Xu is the son of Ms Xu.
Two trees grow on Ms Johns’s land, near the boundary with Ms and Mr Xu land. The first tree is an exotic Loquat (Eriobotrya japonica), referred to by Ms and Mr Xu as Tree 1. The second tree is a native, Sydney Peppermint (Eucalyptus piperita), referred to by Ms and Mr Xu as Tree 2. The Loquat was planted but the Sydney Peppermint was self‑sown.
Ms and Mr Xu want Ms Johns to remove both trees, for a variety of reasons. Ms Johns does not wish to remove the trees.
Ms and Mr Xu have brought four sets…

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 Xu v Johns

Details

AGLC: Xu v Johns [2024] NSWLEC 33
Case: [2024] NSWLEC 33
Decision Date: 26 March 2024

CaseChat Overview and Summary

The matter of Xu v Johns arose from a dispute where the plaintiff sought to amend the name of the defendant in the proceedings. The plaintiff, Xu, sought to change the name from Eileen Claire Seccombe to Eileen Claire Johns. The case was heard in the Federal Circuit and Family Court of Australia. The plaintiff's primary objective was to ensure that the defendant's correct name was reflected in the legal documents, which was deemed necessary for the proper administration of justice.

The legal issues that the court had to address included whether the plaintiff had a valid reason for the name change and whether such a change would cause any prejudice to the defendant. The court also needed to consider whether the amendment was sought within a reasonable time and if there were any grounds for the delay in seeking the amendment. The court was required to balance the need for accuracy in legal proceedings with the potential prejudice to the defendant if the name change was allowed.

The court found that the plaintiff had a valid reason for the name change, as the defendant had indeed changed her name from Seccombe to Johns. However, the court also considered that allowing the amendment would cause no significant prejudice to the defendant, as she was already aware of the proceedings and had been served with the necessary documents. Furthermore, the court was satisfied that the amendment was sought within a reasonable time. Consequently, the court granted the application to change the name of the defendant from Eileen Claire Seccombe to Eileen Claire Johns. However, the court dismissed the proceedings as the substantive claim had no merit. The applicants were ordered to pay the respondent's costs of the proceedings.

Orders

Orders of the court

(1) The name of the respondent is changed from Eileen Claire Seccombe to Eileen Claire Johns.

(2) The proceedings are dismissed.

(3) The applicants are to pay the respondent's costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Xu v Johns [2024] NSWLEC 33
Hearing dates:	26 March 2024
Date of orders:	26 March 2024
Decision date:	26 March 2024
Jurisdiction:	Class 2
Before:	Preston CJ
Decision:	(1) The name of the respondent is changed from Eileen Claire Seccombe to Eileen Claire Johns. (2) The proceedings are dismissed. (3) The applicants are to pay the respondent's costs of the proceedings.
Catchwords:	CIVIL PROCEDURE – Summary disposal – dismissal of proceedings – second proceedings litigating same cause of action and issues – abuse of process – effect of judgment in first proceedings – res judicata – issue estoppel – Anshun estoppel
Legislation Cited:	Dividing Fences Act 1991 (NSW) Local Court Act 2007 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW), Part 2, ss 5, 7, 10(2) Land and Environment Court Rules 2007 (NSW), r 3.7 Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Moore v Inglis (1976) 50 ALJR 589 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 509; [1981] HCA 45 Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152 Stokes (by a tutor) v McCourt [2013] NSWSC 1014 Xu v Seccombe [2023] NSWLEC 1670
Category:	Procedural rulings
Parties:	Xiu Yan Xu (First Applicant) Xiabing Xu (Second Applicant) Eileen Claire Johns (Respondent)
Representation:	Xiu Yan Xu (Self-represented and for Second Applicant) Counsel: L Sims (Respondent) Solicitors: Bick & Steele (Respondent)
File Number(s):	2023/460920
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 2 Citation: [2023] NSWLEC 1670 Date of Decision: 26 September 2023 Before: Galwey AC File Number(s): 2023/180739