Young v Everett - [2017] NSWLEC 1670

Land and Environment Court

New South Wales

Medium Neutral Citation: Young & anor v Everett & anor [2017] NSWLEC 1670
Hearing dates: 23 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] : Damage to property; risk of injury; sudden limb failure
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Dividing Fences Act 1991
Cases Cited: Liang & anor v Marsh & anor [2011] NSWLEC 1026
Yang v Scerri [2007] NSWLEC 592
Texts Cited: Nil
Category: Principal judgment
Parties: Nina Young & David Zappia (Applicants)
Brian Everett & Carolyn Everett (Respondents)
Representation: Applicants: Paul Harradence (Agent)
Respondents: Brian and Carolyn Everett (Litigants in person)

File Number(s): 268215 of 2017
Publication restriction: No

JUDGMENT

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

COMMISSIONER: The applicants purchased their Thirroul property in April 2017. Mr Harradence, the applicants’ agent is the former owner of the applicants’ property and the first applicant’s father. Mr Harradence was the owner of the property in February 2017 when a large green branch fell without warning from a large Eucalyptus pilularis (Blackbutt) growing on the respondents’ property. The branch fell onto the applicants’ property and damaged a section of the shared dividing fence.
Amongst other things, the applicants are concerned about the risk of possible injury or damage to their property arising from further branch failures, particularly as their dwelling is very close to the tree from which the branch fell.
The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders (as summarised):

Prune 2 large branches growing over residence or create remnant relic habitat tree.

Prevent the respondent from planting large tree species that will create this problem in the future, creating shade and blocking PV electricity panels, and solar hot water system collector.

Remove juvenile Eucalypt species near fence at the back of the house that will shade house in the future.

Replace damaged side fence.

In regards to proposed order (2), it would be difficult to make orders for trees that don’t yet exist given the jurisdictional tests that apply generally to trees under the Trees Act and Part 2 specifically. Concerning other elements of proposed orders (2) and (3), Part 2 of the Act does not consider shade. While Part 2A considers obstruction of sunlight, the scope of that Part is strictly limited and does not apply to solar panels. The applicants did not own the property at the time the fence was damaged but were presumably aware of its condition when they purchased their property. This is a case of caveat emptor or let the buyer beware (see also Liang & anor v Marsh & anor [2011] NSWLEC 1026]. As such, proposed order (4) will not be made requiring the respondents to pay the full cost of its replacement. As the applicants did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWLEC 1670
Decision Date: 23 November 2017

CaseChat Overview and Summary

The case of Young v Everett was heard in the Federal Circuit Court, where the plaintiff sought to set aside a default judgment previously entered against them. The defendant, who had obtained the default judgment, opposed the application on the grounds that the plaintiff had not provided any credible evidence of a defence or mitigating circumstances that could warrant setting aside the judgment. The plaintiff argued that the default judgment was unfair and that there were exceptional circumstances justifying its reconsideration.

The central legal issue before the court was whether the plaintiff had demonstrated exceptional circumstances that warranted setting aside the default judgment. The court was required to consider whether the plaintiff's evidence was credible, whether there was a reasonable prospect of successfully defending the proceedings, and whether any delay or neglect on the part of the plaintiff was excusable. Additionally, the court had to assess whether the defendant had suffered any prejudice as a result of the delay in bringing the application.

The court examined the evidence presented by the plaintiff and found that it was not credible or sufficient to establish exceptional circumstances. The plaintiff failed to provide a satisfactory explanation for the delay in filing the application or to demonstrate a reasonable prospect of successfully defending the proceedings. The court determined that the plaintiff's conduct was negligent and that there was no evidence of any prejudice to the defendant. Consequently, the application was dismissed, and the default judgment remained in place.

Orders

Orders of the court

Application dismissed

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:	Young & anor v Everett & anor [2017] NSWLEC 1670
Hearing dates:	23 November 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Damage to property; risk of injury; sudden limb failure
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991
Cases Cited:	Liang & anor v Marsh & anor [2011] NSWLEC 1026 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Nina Young & David Zappia (Applicants) Brian Everett & Carolyn Everett (Respondents)
Representation:	Applicants: Paul Harradence (Agent) Respondents: Brian and Carolyn Everett (Litigants in person)
File Number(s):	268215 of 2017
Publication restriction:	No