Slattery v Dunn [2023] NSWLEC 107

Land and Environment Court New South Wales

Medium Neutral Citation: Slattery v Dunn [2023] NSWLEC 107 Hearing dates: 18 October 2023 Date of orders: 18 October 2023 Decision date: 18 October 2023 Jurisdiction: Class 4 Before: Pritchard J Decision: See orders at [35] Catchwords: CIVIL ENFORCEMENT – injunctive relief – neighbour dispute – development consent – trespass or damage to dividing fence property – interference with paperback tree on property – undertaking as to damages – referral to mediation – mediation unsuccessful – parties seek directions setting the matter down for hearing. Legislation Cited: Civil Procedure Act 2005 (NSW) s 26 Dividing Fences Act 1991 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Slattery v Dunn & Anor [2023] NSWSC 1205 Texts Cited: Nil Category: Procedural rulings Parties: Rhonda Slattery (Applicant) David Dunn (First Respondent) Kim Dunn (Second Respondent) Representation: Rhonda Slattery appeared in person by telephone David Dunn appeared in person Kim Dunn appeared in person File Number(s): 2023/319606 (LEC) Publication restriction: Nil

JUDGMENT

Introduction and procedural background 1. This matter first came before me as duty judge on Thursday, 12 October 2023. 2. By summons filed on Sunday, 8 October 2023 (the summons), the applicant Ms Rhonda Slattery seeks the following orders: 1. Injunction or Orders to restrain and prevent demolition of the dividing fence between the properties identified as lot 165 DP 5350 and lot 164 DP 5350 until the matter is determined by the Court or as agreed. 2. Injunction or Orders to restrain and prevent any fencing works without orders from the Court or as agreed. 3. Injunction or Orders to retrain or prevent any damage by digging, scraping or cutting to the large paper bark trees located within property lot 164/5350 Davistown NSW unless consent and approval is granted by the relevant authority or as determined by the Court. 4. Any other orders the Court deems appropriate. 5. Costs. 1. The first and second respondents, Mr David Dunn and Ms Kim Dunn, are the owners of the property adjacent to Ms Slattery's property and subject of the summons. 2. The matter came before the duty judge, Moore J on Sunday, 8 October 2023. 3. On Sunday, 8 October 2023, the applicant filed in Court a notice of motion in essentially the same terms as the summons, adding an additional order sought in the following terms: 4 Or in the alternative, Order that the fence be modified in accordance with the terms and conditions set out by letter dated 3 October 2023 in Option 1 or Option 2 or as determined or amended by the Court. 1. At the ex parte hearing before Moore J, Ms Slattery read the following affidavits: 1. affidavit of Rhonda Slattery sworn 7 October 2023 exhibiting RS-1; and 2. affidavit of service of Rhonda Slattery sworn 8 October 2023. 1. Moore J considered that this Court did not have jurisdiction to make orders in relation to the fencing works sought in order 2 of the summons, and that the matter ought be transferred to the Supreme Court. Accordingly, Moore J made the following orders: 1. The Court orders that David Dunn (the First Respondent and Kerrie Dunn (the Second Respondent) are restrained by themselves, their servants, agents or contractors, from interfering with either of the paperback trees on 53 Mirren Avenue, Davistown (Lot 164 in Deposited Plain 5350), in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirren Avenue, Davistown (Lot 165 in Deposited Plan 5350), prior to 5:00pm on Thursday, 12 October 2023. 2. The Court orders that the First Respondent and the Second Respondent are restrained by themselves, their servants, agents or contractors, from demolishing any part of the concrete slab located on 53 Mirren Avenue, Davistown (Lot 164 in Deposited Plan 5350) in the vicinity of, or located across, the boundary between Lot 164 in deposited Plan 5350 and 52 Mirren Avenue, Davistown (Lot 165 in Deposited Plan 5350), prior to 5PM on Thursday, 12 October 2023. 3. The proceedings be transferred to the Supreme Court of New South Wales. 1. Subsequent to Moore J ordering the transfer of the proceedings to the Supreme Court, the proceedings were listed before the duty judge in Equity, Henry J who also heard the matter ex parte. On Sunday, 8 October 2023 her Honour delivered judgment: Slattery v Dunn & Anor [2023] NSWSC 1205. 2. At [6] of her reasons for judgment, Henry J said of the background to the application: 6. The urgency of the current application arises as yesterday (on Saturday, 7 October 2023) the plaintiff received a letter from the defendants notifying her that they intended to commence works to demolish the boundary fence at 7.00am on Monday, 9 October 2023 and, amongst other issues, the plaintiff has two large dogs that need to be confined. It appears from the materials before the Court that there have been some discussions and proposals made by the plaintiff to resolve the dispute and confine the nature of the works, but these have not been accepted by the defendant. 1. Her Honour made the following orders: 1. Upon the undertaking of the Plaintiff to pay the requisite filing fee or obtaining deferment of payment of that fee from the Registry, grant leave to the Plaintiff to file in Court the Summons and Notice of Motion dated 7 October 2023, the affidavit of Rhonda Slattery dated 7 October 2023 and Exhibit RS-1 to that affidavit. 2. Upon the Plaintiff giving the usual undertaking as to damages, order that until 5.00pm on Thursday, 12 October 2023, David Dunn (the First Defendant) and Kim Dunn (the Second Defendant) be restrained by themselves, their servants, agents or contractors from trespassing or entering upon XX Mirreen Avenue, Davistown NSW 2251 at Lot 164 DP 5350 (Plaintiff's Property) and interfering with and damaging the existing dividing fence located on or in the vicinity of the contiguous boundary between the Plaintiff's Property and XX Mirreen Avenue, Davistown NSW 2251 at Lot 165 DP 5350 (Defendants' Property). 3. Pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the Summons, Notice of Motion, affidavit of Rhonda Slattery and Exhibit RS-1 (Documents) together with a copy of these orders be abridged to 8.00pm on 8 October 2023. 4. Service of the Documents and a copy of these orders is to be effected on the Defendants by: a. hand delivery of the Documents addressed to the Defendants at the Defendants' Property; and b. by email to dandmdbuilding@gmail.com, attention David Dunn. 5. Note that Land and Environment Court proceedings 2023/123456 (LEC Proceedings) have been transferred to the Supreme Court of New South Wales and direct that the LEC Proceedings and these proceedings to be heard together. 6. List these proceedings and the LEC Proceedings before the Equity Duty Judge at 10.00am on Tuesday, 10 October 2023. 7. Liberty to apply to the parties on four (4) hours' notice 8. These orders be entered forthwith. 1. On Tuesday, 10 October 2023, the matter returned before Henry J. The applicant was represented by counsel, and the respondents were self-represented. Her Honour ordered that the proceedings be transferred back to this Court, her Honour saying as follows in relation to the jurisdiction of this Court: HER HONOUR: By transferring these proceedings back to the Land and Environment Court, the Land and Environment Court will have the jurisdiction of this Court to determine any issues that this Court could determine and that court couldn't. 1. And in relation to the suitability of the proceedings to be the subject of mediation, her Honour said: HER HONOUR: …What I am proposing is that the matter go back to the Land and Environment Court, and I would seriously encourage the parties to agree to a mediation, because that will be the quickest way to resolve the issue, and will avoid the costs and time associated with legal proceedings further. 1. Henry J made the following orders: 1. Pursuant to s 149B of the Civil Procedure Act 2005 (NSW), order that these proceedings 2023/00319369 and proceedings 2023/00320641 (which were transferred from the Land and Environment Court to the Supreme Court on 8 October 2023, being Land and Environment Court proceedings 2023/00319606) both be transferred to the Land and Environment Court. 2. Direct that the file name and documents in the two sets of proceedings be updated to record that the name of the second defendant/second respondent is Kim Dunn, not Kerrie Dunn. 3. List the transferred proceedings before the Duty Judge of the Land and Environment Court at 10.00am on 12 October 2023. 4. Direct the parties to file and serve any further evidence upon which they intend to rely and any written submissions by 5.00pm, 11 October 2023. 5. Note that the parties have informed the Court that they wish the proceedings to be heard on an urgent basis and they do not consider that the matter is suitable for mediation. 6. Grant leave to the defendants to file in Court the affidavit of David Dunn to 9 October 2023.