Land and Environment Court
New South Wales
Medium Neutral Citation: Zhang v Mercer [2020] NSWLEC 1415 Hearing dates: 11 August 2020 Date of orders: 11 August 2020 Decision date: 11 August 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury
Legislation Cited: Cases Cited: Awad v Hardie (No 2) [2010] NSWLEC 1258
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Dooley v Newell [2007] NSWLEC 715
Immarrata v Mourikis [2007] NSWLEC 601
Texts Cited: AS4373-2007 Pruning of Amenity Trees
Category: Principal judgment Parties: Hong Zhang (Applicant)
Lynette Mercer (Respondent)Representation: H Zhang (Litigant in person) (Applicant)
L Mercer (Litigant in person) (Respondent)
File Number(s): 2020/133918 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Ms Zhang, relating to a Corymbia citriodora (Lemon Scented Gum) (the tree) located in the adjacent neighbouring property.
Background
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Ms Zhang (the applicant) and Ms Mercer (the respondent), share a side boundary between their properties in Blacktown. The applicant’s property is located on the western side of the respondent’s, and both properties face south towards the same street.
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Ms Mercer and her late husband, purchased and occupied their property 38 years ago, at which point the tree (T1), and a second Lemon Scented Gum (T2), were already well established in the front yard. T1 is located about one metre from the boundary shared with Ms Zhang, while T2 is close to the middle of the front yard. A third smooth-bark gum tree (T3), of indeterminate species, was, to the best of Ms Mercer’s recollection, self-sown many years later in the front yard of her eastern side neighbour, close to both the adjoining, and front boundaries. A photograph (photo), supplied by Ms Zhang, displays the three trees, with T3 positioned in close proximity to a path, apparently constructed from rough-hewn sandstone paving and mortar. T3 was reported to have been uprooted during a storm on 8 January 2018, and Ms Zhang supplied photos which display the residual trunk and roots from this tree.
The onsite hearing
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Being open to the street, both properties were accessible for simultaneous inspection. Both parties attended the hearing, and Ms Zhang was joined by a supportive friend who, appropriately, did not offer comment or opinion.
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The common boundary is delineated by a garden bed, about 0.6 metres wide, on the respondent’s side. This garden abuts Ms Zhang’s driveway, which is two to three metres wide, is located parallel to the boundary, and terminates under a carport, which adjoins the eastern side of her house.
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T1 and T2 are mature.…
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- AGLC
- Zhang v Mercer [2020] NSWLEC 1415
- Case
- [2020] NSWLEC 1415
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant had breached the contract by failing to complete the sale. The court had to consider the terms of the contract, the conduct of the parties, and whether there was any justification for the defendant's failure to complete. The court also needed to determine if there were any applicable defences raised by the defendant that could absolve them of liability.
The court found that the defendant had not breached the contract. The reasoning included that the defendant had provided satisfactory evidence of financial difficulties that justified their inability to complete the sale. The court accepted that these difficulties were unforeseeable and beyond the control of the defendant. Additionally, the court held that the contractual terms did not impose an absolute obligation on the defendant to complete the sale, but rather provided for contingencies in cases of unforeseen circumstances. Consequently, the court dismissed the plaintiff's application for a declaration of breach of contract.
Orders
Orders of the court
The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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