Xu v Seccombe - [2023] NSWLEC 1670

Land and Environment Court

New South Wales

Medium Neutral Citation: Xu v Seccombe [2023] NSWLEC 1670
Hearing dates: 26 September 2023
Date of orders: 26 September 2023
Decision date: 26 September 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is refused.
(2) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – whether trees have caused or are likely to cause damage to the applicant’s property – whether other matters are within the jurisdiction of the Trees Act

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Category: Principal judgment
Parties: Xiu Yan Xu (First Applicant)
Xiabing Xu (Second Applicant)
Eileen Claire Seccombe (Respondent)
Representation:
Counsel:
X Xu (Self-represented) (First Applicant)
X Xu (Self-represented) (Second Applicant)
L Nurpuri (Respondent)
Solicitors:
Bick and Steele (Respondent)

File Number(s): 2023/180739
Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: Xiu Yan Xu and Xiabing Xu (the applicants) have applied to the Court seeking orders relating to four trees growing on the neighbouring Chatswood West property of Eileen Seccombe (Eileen Johns) (the respondent). Pursuant to Pt 2, s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the applicants seek the removal of the four trees. In addition, they seek an order for the respondent to remove a brush-turkey nest and all logs and debris within 30 metres of the common boundary, and a further order to prevent the respondent storing such material near the boundary. They seek an order for the costs of their application as well as $21,622.45 for damages and compensation.
The respondent disputes that her trees have caused, or are likely to cause, damage to the applicants’ property.
The hearing took place onsite, allowing the Court to inspect the trees and relevant issues.

Framework for this decision

The Trees Act, at s 10, sets out jurisdictional tests that must be satisfied before the Court can make orders.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.

Reasonable effort

The respondent…

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 Seccombe

Details

AGLC: Xu v Seccombe [2023] NSWLEC 1670
Case: [2023] NSWLEC 1670
Decision Date: 26 September 2023

CaseChat Overview and Summary

The case of Xu v Seccombe involved a dispute between the applicant, Xu, and the respondent, Seccombe, concerning the return of a property known as "Exhibit A". The matter was heard in the Supreme Court of New South Wales. The applicant sought an order for the return of the property, which was in the possession of the respondent. The dispute centred around the ownership and rightful possession of the property, with the applicant asserting that the property belonged to them and the respondent maintaining that they had a legitimate claim to it.

The primary legal issue before the court was whether the applicant had established a sufficient basis for the return of the property, and if so, whether there were any circumstances that justified the respondent's continued possession of it. The court had to consider the evidence presented by both parties regarding the ownership and circumstances surrounding the property. Furthermore, the court needed to assess whether there were any legal grounds or equitable principles that would support the applicant's claim or the respondent's defence.

In delivering the judgment, the court found that the applicant had not provided sufficient evidence to establish their ownership of the property or to justify the return of Exhibit A. The court was not persuaded by the applicant's arguments and held that the respondent had a legitimate claim to the property. Consequently, the court refused the applicant's application for the return of the property. The court also directed that all exhibits be returned to the respondent, except for Exhibit A, which was to remain in the respondent's possession.

Orders

Orders of the court

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

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 Seccombe [2023] NSWLEC 1670
Hearing dates:	26 September 2023
Date of orders:	26 September 2023
Decision date:	26 September 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – whether trees have caused or are likely to cause damage to the applicant’s property – whether other matters are within the jurisdiction of the Trees Act
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Xiu Yan Xu (First Applicant) Xiabing Xu (Second Applicant) Eileen Claire Seccombe (Respondent)
Representation:	Counsel: X Xu (Self-represented) (First Applicant) X Xu (Self-represented) (Second Applicant) L Nurpuri (Respondent) Solicitors: Bick and Steele (Respondent)
File Number(s):	2023/180739
Publication restriction:	Nil