Probert v The Estate of the Late Amiel Colin Christie

Supreme Court of NSW|2023-11-14|Before: McGrath J

INTRODUCTION

These proceedings involve a dispute between immediate neighbours over the removal of nine trees located at Palm Beach, New South Wales in accordance with an attempted settlement agreement of a wider underlying dispute which is the subject of separate proceedings in this court. The dispute was originally about the removal of nine trees but two of the trees have since been removed.
The upper crown of the remaining seven trees on one property substantially interferes with extensive water, headland and coastal views from the neighbouring property, encompassing iconic features such as Lion Island, Barrenjoey Headland and Palm Beach.
The plaintiffs/cross-defendants are Keith and Susan Probert (Proberts).
The defendants/cross-claimants are David Christie (Mr Christie) in his capacity as executor of the estate of the late Amiel Colin Christie (Deceased, who died on 15 March 2022) and in his personal capacity. Mr Christie is a son of the Deceased. Probate of the Deceased's estate was granted to Mr Christie on 4 October 2022. Andrew Christie is also a son of the Deceased, being the eldest brother of Mr Christie. I will refer to Andrew Christie by his full name to distinguish him from his younger brother, Mr Christie, in this judgment.
From 14 June 1996 until his death on 15 March 2022, the Deceased was the registered proprietor of the property on which the trees are located, being Lot 8, Section 4, DP 13780, known as 76 Pacific Road, Palm Beach (Christie Property). Andrew Christie is the beneficiary of the specific gift of the Christie Property in the will of the Deceased.

EVIDENCE

At the hearing, the Proberts relied on the following evidence: 1. affidavit of Hasti Kalarostaghi affirmed 19 June 2023 and the documents contained in the exhibit to it; and 2. affidavit of Hasti Kalarostaghi affirmed 18 July 2023 (which largely replicated the earlier affidavit).
At the hearing, Mr Christie relied on the affidavit of David Amiel Bruce Christie sworn 30 June 2023 and the documents contained in the exhibit to it.
Ms S Foda of counsel, instructed by Hunt & Hunt Lawyers, appeared for the Proberts. Mr A Fernon SC with Mr M Barnes of counsel, instructed by Gamble Law, appeared for Mr Christie.
Mr Christie was cross-examined during the course of the hearing but nothing emerged in that cross-examination which challenged his credibility.

Restriction on use of the Christie Property

The Christie Property is burdened by a restriction on the use of land which was registered on title on 9 October 1991, contained in Deposited Plan 645207 and was created pursuant to s 88B of the Conveyancing Act 1919 (NSW) (Restriction on Use).
The Restriction on Use imposes height limitations on trees and vegetation situated within two areas on the Christie Property, labelled "X" and "Y" respectively.
The relevant terms of the Restriction on Use within area X are set out below: (a) …no tree, shrub, flora or other form of plant life on that part of the lot burdened within the zoned identified as X and enclosed by Points A, B, C, and D shall at any time be permitted to protrude above any point along the inclined plane running from the level at Points A and B being Reduced Level 89.94 metres AHD to the level at Points C and D being Reduced Level 94.55 metres AHD. …
The relevant terms of the Restriction on Use within area Y are set out below: … (b) No tree, scrub, flora or other plant life (with the exception of the existing gum tree) on that part of the lot burdened within the zone identified by Y and enclosed by Points C, D, E and F shall be permitted to protrude above any point along the inclined plans running from the level at Points C and D being at Reduced Level 94.55 metres AHD to the level at Points E and F being Reduced Level 96.19 metres AHD. ….
The Restriction on Use benefits the Probert Property.

2020 tree removal application

On 23 September 2020, Andrew Christie made an application to Northern Beaches Council for the removal of one tree and for the pruning of five trees on the Christie Property.
On 19 October 2020, Northern Beaches Council issued a notice of determination of permit which approved the removal of one tree and the pruning of five trees on the Christie Property, the pruning in each case involving up to 15% of the tree canopy and the removal of dead wood.

2021 Land and Environment Court proceedings

The Proberts then submitted an application to the Land and Environment Court (LEC) pursuant to the Trees (Disputes Between Neighbours) Act 2006 (NSW) seeking the pruning of trees on the Christie Property and the ongoing future maintenance of them at a height no greater than specified in the Restriction on Use.
On 10 September 2021, Douglas AC dismissed the Proberts' application: Probert v Christie [2021] NSWLEC 1529.

2022 proceedings to enforce Restriction on Use

On 21 June 2022, the Proberts commenced separate proceedings in this court (2022/180134) against the estate of the Deceased by way of summons seeking declarations and orders for specific performance to enforce the Restriction on Use (2022 proceedings).
On 15 July 2022, Darke J made orders in the 2022 proceedings that Mr Christie be appointed to represent the estate of the Deceased.
On 25 August 2022, Mr Christie, as executor of the estate of the Deceased, filed a cross-summons in the 2022 proceedings seeking an order pursuant to s 89(1)(a) of the Conveyancing Act to extinguish, in whole or part, the Restriction on Use.
The 2022 proceedings still remain on foot, with exactly the same parties as these proceedings.

Deed of Agreement

On 2 December 2022, the Proberts, Mr Christie and Andrew Christie attended a court-ordered mediation and executed a document styled "Heads of Agreement". Andrew Christie was not party to the Heads of Agreement.
On 20 and 21 December 2022, the Proberts and Mr Christie respectively executed a Deed of Agreement (Deed) to give effect to the Heads of Agreement. Andrew Christie is not a party to the Deed.
In the Deed, the Proberts were defined as "Probert" and the estate of the Deceased was defined as "Christie".
The relevant clauses of the Deed provide: Definitions and interpretation 1.1 Definitions In this deed: "Arboricultural Report" means the Arboricultural Expert Opinion of Catriona Mackenzie dated 12 October 2022, served in the Proceedings as Tab 22 to Exhibit CM-1 referred to in the affidavit of Catriona Mackenzie affirmed 19 October 2022, and provided at annexure A. "Christie Property" means Lot 8, Section 4, Deposited Plan 13780, known as 76 Pacific Road, Palm Beach NSW 2108. "Council" means Northern Beaches Council. … "Permit Application" means the application to be lodged with Council requesting a permit under the State Environmental Planning Policy (Biodiversity and Conservation) 2021, using the form as set out in Annexure B. "Proceedings" means Supreme Court proceedings No. 2022/180134. "Restriction" means the Restriction on the Use of Land created pursuant to s. 88B instrument on the title of the Christie Property, as provided at Annexure D. "Sunset Date" means the date as provided for in clause 13, or as otherwise agreed in writing between the parties. … 3. Tree removal 3.1 Identified trees to be removed The following trees are to be removed from the Christie Property by Christie, adopting the numbering in the Arboricultural Report: (a) Tree 1 - Bottlebrush (b) Tree 2 - Cheese tree (c) Tree 3 - Cheese tree (d) Tree 4 - Cheese tree (e) Tree 5 - Cheese tree (f) Tree 6 - Cheese tree (g) Tree 8 - Hakea (h) Tree 10 - Bottlebrush (i) Tree 13 - Spotted Gum 4. Tree removal application The parties are to use best endeavours to lodge a joint tree removal application with Council pursuant to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 for the removal of the trees listed in clause 3.1 of this agreement: (a) By the close of business on 23 December 2022; (b) Using the form at Annexure B to this deed; (c) Attaching the documents listed at Annexure C to this deed, together with a copy of this deed. 5. Trees on the Christie Property (a) Any trees to be planted on the Christie Property on the portion of the land where the Restriction applies, are to be maintained at a level in compliance with the Restriction. (b) Christie is to have regard to the terms of the Restriction when selecting species to plant on the portion of the Christie Property where the Restriction applies. Only species in Schedule 1 to this deed are to be planted on the portion of the Christie Property where the Restriction applies. (c) Following the removal of the trees in clause 3, any trees remaining on the Christie Property in the portion of the land where the Restriction applies, are to be maintained at all time (sic) in accordance with the Restriction. 6. Obligations of the parties 6.1 Obligations of Probert (a) Probert will consent to the filing of consent orders discontinuing the Proceedings within 14 days of the removal of the trees in clause 2. 6.2 Obligations of Christie (a) Following the granting of a permit pursuant to the Permit Application and clause 4, Christie must remove the trees in clause 3.1 as soon as practicable, and within 21 days of the granting of the permit. … 8. Further assurance Each party to this deed must sign, execute and do all deeds, schedules, acts, documents and things as may reasonably be required by any other party effectively to carry out and give effect to the terms and intentions of this deed whether before or after the Effective Date. 11. Costs 11.1 Each party to bear own costs Each party must bear its own costs of and in connection with this deed and the completion of this deed. 11.2 Cost of Permit Application The parties are to share any costs associated with the Permit Application to Council 50 - 50 11.3 Costs of Appeal to Land and Environment Court Any costs and disbursements of any appeal to the Land and Environment Court pursuant to clause 13 of this Deed are to be borne solely by Probert. … 13. Sunset Date If the Permit Application has not been approved by 1 February 2023 Christie and the Executor will do all things necessary to consent to, and permit Probert to appeal to the Land and Environment Court pursuant to s.2.12 of the State Environmental Planning Policy (Conservation and Biodiversity) 2021. … 15. General ... 15.3 Variations No variation, modification or waiver of any provision of this deed or consent to any departure by any party from any provision, is in any event of any force or effect unless it is confirmed in writing, signed by the parties, and then the variation, modification, waiver or consent is effective only to the extent for which it is made or given. …

First Application and Tree Permit Determination

On 21 December 2022, as envisaged under cl 4 of the Deed, the Proberts and Mr Christie lodged a joint tree removal application with the Northern Beaches Council for the removal of nine trees on the Christie Property (being those listed in cl 3.1 of the Deed) (First Application).
On 10 January 2023, Andrew Christie (who is not a party to the Deed) wrote a letter to Northern Beaches Council making submissions in relation to the First Application, concluding: The application for removal of the 9 trees should be rejected in its entirety as it is not consistent with the controls for the C4 zone, Environmental Living and Council policy.
On 16 January 2023, Northern Beaches Council wrote a covering letter to the Proberts and Mr Christie stating that the First Application had been determined, attached to which was a Notice of Determination of Permit (TA2023/0006) which noted the "Proposed Application: Tree Removal (9 trees)" and the "Approved Application: Tree Pruning (7 trees) and Tree removal (2 Trees)" on the Christie Property (Tree Permit Determination). The Tree Permit Determination set out in further detail the identity of the two trees that were approved to be removed and the seven trees that were approved to be pruned, the latter including the percentage of the tree canopy that was permitted for pruning.
The covering letter also stated: Section 97 of the Environmental Planning and Assessment Act 1979 confers on the applicant a right of appeal to the Land and Environment Court within 3 months of receipt of this letter.
On 24 January 2023, the solicitors for Mr Christie (Gamble Law) sent an email to the solicitors for the Proberts (Hunt & Hunt) enquiring whether the Proberts intended to appeal the Tree Permit Determination to the LEC and asking that "[o]therwise, please confirm that your clients will discontinue the current Supreme Court proceedings".
On 31 January 2023, Hunt & Hunt sent an email to Gamble Law advising that they had considered the Tree Permit Determination, further enquiries were being made with Council and stating: As this permit does not give effect to the agreement in the deed entered into after the mediation (as it does not permit the removal of the subject trees) our clients are making further inquiries of Council. These enquiries have been hindered by a number of Council officers being away on annual and sick leave since the permit was issued.
The email stated that they would require a further four weeks to make enquiries and proposed adjourning the 2022 proceedings for 4 weeks until 3 March 2023. They further asserted that cl 6.1 of the Deed does not oblige the Proberts to discontinue the 2022 proceedings until the trees are removed.
In about early February 2023, two trees were removed from the Christie Property in accordance with the Tree Permit Determination.
On 17 February 2023, Northern Beaches Council provided Hunt & Hunt with the tree permit assessment report which had been requested by them. The tree permit assessment report set out the matters which had been considered by the Northern Beaches Council officer who had dealt with the First Application and issued the Tree Permit Determination.
On 21 February 2023, Hunt & Hunt sent a letter to Northern Beaches Council asserting that there had been non-compliance in the assessment which had been undertaken by the Northern Beaches Council officer in deciding to issue the Tree Permit Determination. Amongst the matters raised was the failure to consider the Restriction on Use, as well as the terms of the Deed, with numerous references to the Arboricultural Report indicating how each remaining tree failed to meet the terms of the Restriction on Use.

Proposed second application

On 23 March 2023, Hunt & Hunt sent an email to Gamble Law, which relevantly stated: I have now had the opportunity to speak to Council's solicitor in this matter and Council agrees with our position that the assessment undertaken for the permit that was issues (sic) on 16 January 2023 was not in accordance with the DCP. Due to the nuances of the Council's rules and regulations, there is no opportunity for the permit itself to be reviewed. Accordingly, we've been advised by Council to lodge a further application so that Council can undertake a complete and proper assessment of the application. Accordingly, my client seeks to lodge a further joint application to give effect to the agreement reached during mediation on 2 December 2022 and to have the matter adjourned for a further weeks to enable Council to undertake the relevant assessment. Could you please advise if your client consents to the above with the relevant order for tomorrow and will provide you with a fresh application on an urgent basis.
On 3 April 2023 at 3:45pm, Gamble Law sent an email to Hunt & Hunt requesting a copy of the correspondence between Hunt & Hunt and Northern Beaches Council's solicitor, and in what respect it was contended that the assessment was not in accordance with the relevant Development Control Plan. The email concluded that their client was not in a position to consent or otherwise to the lodging of a second application until they had received a response to the email.
On 3 April 2023 at 3:54pm, Hunt & Hunt sent Gamble Law an email which attached a copy of the letter dated 21 February 2023 sent by Hunt & Hunt to Northern Beaches Council. The email asserted: Council's in-house solicitor agrees with our position and has confirmed that due to the nuance of the manner in which permits are issued, there is no right of review or appeal. Our client's only option for a proper determination and consideration of all factors is to lodge a second application. This is the only way that our client will not be denied procedural fairness in this long-running manner (sic).
On 13 April 2023, Gamble Law sent a letter to Hunt & Hunt via email requesting any relevant correspondence indicating that Northern Beaches Council agreed to a proposed second application being lodged or if that had been indicated orally. Gamble Law further advised that Mr Christie would not consent to lodging a second joint application to Northern Beaches Council. The letter also referred to cl 11.3 of the Deed (regarding costs of any appeal to the LEC to be paid by the Proberts) and stated: Would you please inform us as to whether your client intends to file any appeal to the Land and Environment Court or take further legal action against the Council.
The letter concluded by again requesting that the parties discontinue the 2022 proceedings.
On 20 April 2023, Hunt & Hunt sent a letter to Gamble Law asserting that cl 3.1 of the Deed stated an intention and agreement for the removal of nine trees and cl 8 of the Deed required Mr Christie to do all things reasonably required to give effect to the terms and intentions of the Deed. The letter said that Northern Beaches Council had confirmed there was no right of review or appeal for the Tree Permit Determination. Hunt & Hunt also pressed the need for a further tree removal application to be lodged to satisfy the Deed, and attached a tree removal application for Mr Christie to sign and return by 28 April 2023.
On 27 April 2023, Hunt & Hunt sent an email to Gamble Law referring to their letter dated 20 April 2023 and asking that they advise as a matter of urgency if they had received instructions from Mr Christie with respect to the second tree removal application.
On 2 May 2023 at 2:25pm, Gamble Law sent an email to Hunt & Hunt which attached a letter requesting that Hunt & Hunt provide them with a copy of the relevant correspondence or communication with Northern Beaches Council in which they agreed with the proposed second application and identifying in what respect the First Application was not properly determined by Northern Beaches Council. The letter also stated: We understand from you that Council have confirmed orally to you that there is no right of appeal to the Land and Environment Court, as contemplated by the terms of the Deed.
Gamble Law completed the letter by requesting a copy of the tree permit assessment report prepared by Northern Beaches Council and stating that "it is premature to seek enforcement of the deed".
On 2 May 2023 at 2:36pm, Hunt & Hunt sent an email to Gamble Law. The email stated: I confirm that Council has agreed with us that the first application was not properly determined and as a solution it has advised that a second application has to be lodged. I do not understand why your client is resisting to comply with its obligations under the Deed and provide his consent for a further application. A second application does not cause your client any prejudice and as previously advised my client will pay the necessary application fees. Our position is that your client is in breach of the Deed and I do have instructions to commence proceedings. Please let us know your client's position as soon as possible.
On 3 May 2023, Northern Beaches Council sent an email to Gamble Law confirming that Hunt & Hunt had raised a concern that the tree permit assessment report did not consider test 7 of the Removal of Tree test (set out in Appendix 16 of the Pittwater 21 Development Control Plan (DCP)). The email stated that while the Northern Beaches Council acknowledged that the tree assessment report did not specifically consider test 7, it made no admission that the Tree Permit Determination was invalid. The email confirmed that Northern Beaches Council had informed Hunt & Hunt that a fresh tree permit application may be lodged if they were unhappy with the conditions of the Tree Permit Determination.
On 19 May 2023, the Proberts commenced these proceedings against Mr Christie as executor of the estate of the Deceased and in his personal capacity by filing the summons.
On 22 May 2023, Hunt & Hunt sent a letter to Gamble Law which enclosed the summons commencing these proceedings and stating that the Proberts were prepared to discontinue these proceedings if the tree permit application (Annexure A to the summons) was signed by Mr Christie and returned by 5pm on 26 May 2023.

Second Application signed and lodged

On 24 May 2023 at 4:03pm, Gamble Law sent an email to Hunt & Hunt confirming that Mr Christie would sign the second tree permit application "provided it is on the same terms as the first and proceedings 2023/160897 [being these proceedings] are discontinued with no order as to costs". Gamble Law also requested that the second tree permit application should be amended to align with the First Application by deleting the words "and therefore removal is recommended in this instance" from the second tree permit application.
On 24 May 2023 at 4:18pm, Hunt & Hunt sent an email to Gamble Law attaching an amended second tree permit application.
On 24 May 2023, Mr Christie electronically signed the second tree permit application.
On 26 May 2023 at 12:35pm, Gamble Law sent an email to Hunt & Hunt which provided a copy of the second tree permit application electronically signed by Mr Christie using a Dropbox link. In that email, Gamble Law noted "[w]e look forward to receiving confirmation that proceedings 2023/160897 have been discontinued".
On 2 June 2023 at 5:06pm, Hunt & Hunt sent an email to Northern Beaches Council, copied to Gamble Law, which attached the second tree permit application electronically signed by Mr Christie and physically signed by the Proberts (Second Application). The Second Application sought the "pruning/removal" of seven trees. The Second Application was a joint application of Mr Christie and the Proberts.
The email with the Second Application also attached a covering letter dated 2 June 2023 from Hunt & Hunt Lawyers to Northern Beaches Council. The covering letter stated: We act for Mr & Mrs Probert of 31 Ralston Road, Palm Beach (Lot 15, Section 4, DP 14048) in relation to the above matter. Background We refer to our letter to Mr Eskil Julliard of Council dated 21 February 2023 and telephone conversation between Hasti Kalarostaghi and Jessica Simpson of Council on 15 March 2023. As Council is aware, the Proberts have the benefit of a Restriction of Use on the title of the neighbour's property at 76 Pacific Road, Palm Beach (Lot 8, Section 4, DP 13780) (Property). The Restriction of Use imposes height limitations on trees and vegetation situated within two areas ('X' and 'Y') on the Property. A copy of the Restriction on Use is enclosed as Tab 3 to Annexure B of the enclosed permit application. As part of the above mentioned proceedings, the parties have entered into a deed of agreement dated 21 December 2022 (Deed) following a Court ordered mediation for the removal of the trees that are in breach of the Restriction of Use, being trees 1, 2, 3, 4, 5, 6, 8, 10, and 13 (adopting the numbering in the Arboricultural expert opinion of Catriona Mackenzie dated 12 October 2022 (Arborist Report) and as depicted in the survey plan prepared by Hammond Smeallie & Co dated 8 August 2022, Issue B (Survey Plan). Previous Permit Application Pursuant to the Deed, on 21 December 2022 the parties signed and lodged a joint tree removal permit application (Permit Application) with Council, for the removal of the nine (9) trees in accordance with the cl.4 of the Deed. A copy of the Deed was provided with the Permit Application and is again enclosed as Tab 8 to Annexure B of the enclosed application. On or about 16 January 2023 a Notice of Determination, TA2023/0006, was issued by Council, which permitted the pruning of seven (7) trees and removal of two (2) trees at the Property (Permit TA202310006). In February 2023 the two (2) trees were removed from the Property (being Tree 6 and Tree 13), in accordance with the Permit TA202310006. Trees 1, 2, 3, 4, 5, 8, and 10 remain in breach of the Restriction on Use. As noted in our letter of 21 February 2023, and confirmed in the telephone conversation with Council on 15 March 2023, the assessment of the Permit Application for Permit TA202310006 was not undertaken in accordance with the Pittwater 21 Development Control Plan (DCP) as it did not consider the 7th test in Appendix 16 of the DCP. Fresh Permit Application We understand that as there are no avenues for review of the Permit TA2023I0006, the parties must lodge a fresh tree removal permit application so that a complete assessment, having regard to all tests in Appendix 16 of the DCP, can be carried out by Council in relation to Trees 1, 2, 3, 4, 5, 8 and 10. Accordingly, we now enclose the fresh tree removal permit application, signed by both parties, for Council's consideration and assessment. We emphasise, as discussed with Ms Simpson and as set out in our letter of 21 February 2023, that the Restriction on Use and the Deed are relevant considerations and should be taken into account, alongside the Arborist Report, when determining the application under the State Environmental Planning Policy (Biodiversity and Conservation) 2021. Section 84.22, control 4 of the DCP, provides that in applying for a Vegetation Clearing Permit (taken to be a permit under Part 2.3 of the S&C SEPP), the applicant must demonstrate that any tree to be removed as part of a permit meets one or more of the criteria of the Removal of Tree Test in Appendix 16 of the DCP and the Tree Retention Assessment in Appendix 17. We emphasise that the 7th Test outlined in Appendix 16 of the DCP has been satisfied, as set out in the Arborist Report. This validates the removal of the subject trees as: (a) Trees 1-5, 8-10, and 12 are in breach of the Restriction on Use due to their height, some by several metres and are therefore in an unstable position; (b) Granting the permit application for the removal of these trees would lead to the removal of inappropriate species in an unsuitable location and replace the trees with more appropriate species; and (c) removal of existing trees and their replacement with small tree or shrub species is recommended by the Arborist Report. Appropriate species for replacement are listed in (91] of the Arborist Report. Removal of the subject trees is the only option to avoid further conflict with the requirements of the Restriction on Use. Please note that the proceedings have been adjourned by Justice E. Peden until 16 June 2023 to allow time for the fresh application to be lodged and determined by Council. We also note that the Deed is capable of resolving all outstanding issues in the proceedings and therefore it should be assumed that any orders of the Supreme Court will be in the terms contained in the Deed. … encl 1. Joint Tree Removal Permit Application signed by Probert and Christie dated 24 May 2023 (fresh application)
Mr Christie was not provided with a copy of the covering letter at the time he signed the Second Application, was not informed that it would be sent, nor did he consent to the covering letter being provided to Northern Beaches Council. Mr Christie did not agree with a number of the matters contained in the covering letter, including the statement that "[r]emoval of the subject trees is the only option to avoid further conflict with the requirements of the Restriction on Use".
On 5 June 2023, in response to the second application, Jessica Simpson (Legal Counsel at Northern Beaches Council) sent an email to other officers at Northern Beaches Council stating that she had received the second application, enclosing it and then commenting as follows: I realise that it is unusual to receive a tree permit application in this way, but it has been sent to me because the matter is the subject of legal proceedings between the Proberts and the Estate of Mr Christie's (sic). Council is not a party to these proceedings but the Office of the General Counsel has been contacted by the solicitors for both parties. Council assessed an earlier tree permit application in relation to this 76 Pacific Road. I have attached the notice of determination and the assessment report. The Proberts were unhappy with Council's determination of the earlier tree permit application because Council did not include in its assessment report an assessment of the 7th test in Appendix 16 of the Pittwater DCP. The 7th test relates to inappropriate tree species growing in unsustainable positions. … I agree with Hunt & Hunt that Council did not consider the 7th test in its assessment. However, there is no avenue to appeal or seek a review of a determination of a tree permit application. The only option available is to make a fresh application. … The tree permit application fee has not been paid yet and will need to be invoiced to Hunt & Hunt. I realise that this isn't the usual process, however, given that this application should not be determined by the Tree Services division of Council due to a conflict of interest, the application should not be processed in the usual way.
On 9 June 2023 at 7:55am, Mr Christie sent an email to Northern Beaches Council which enclosed a letter to Northern Beaches Council requesting them to immediately withdraw the second application. The basis of Mr Christie withdrawing his consent was that he did not agree to the letter of 2 June 2023 being provided with the Second Application and that the Proberts had not discontinued these proceedings.
On 9 June 2023 at 10:55am, Northern Beaches Council sent an email to Gamble Law and Hunt & Hunt advising that Mr Christie had sought the immediate withdrawal of the second application. The email stated: Council cannot assess the application if the owner of the land to which the application relates has withdrawn it.
On 9 and 14 June 2023, Adam Kenndy-Hunt from Hunt & Hunt sought to contact Andrew Gamble of Gamble Law concerning Mr Christie's decision to withdraw the Second Application but was unable to make contact with him.
On 14 June 2023, Hunt & Hunt sent an email to Gamble Law stating that in light of Mr Christie withdrawing his consent to the Second Application without any notice, they were instructed to press ahead with seeking enforcement of the Deed between the parties and proposed the adjournment of the 2022 proceedings until the outcome of these proceedings.

SUBMISSIONS

The parties made written submissions and oral submissions at the hearing and then made additional written submissions after the hearing.

Proberts

The Proberts' primary submission is that Mr Christie has failed to perform his obligations pursuant to the Deed, namely, to take all reasonable steps to give effect to the removal of the nine trees listed in cl 3.1.
Following Northern Beaches Council's alleged incomplete consideration of the First Application and Mr Christie's unilateral withdrawal of the Second Application, the Proberts contend that for Mr Christie to comply with his obligations under the Deed, a third application must be lodged with Northern Beaches Council for the removal of the seven remaining trees.
The Proberts' submissions can be summarised as follows: 1. The obligation of Mr Christie to submit a joint tree removal application (and multiple such applications) arises from the express terms of the Deed, being the obligation of Mr Christie to remove the trees in cl 3.1 and the obligation of Mr Christie to sign, execute and do all things as may reasonably be required by the Proberts to carry out and give effect to the terms and intentions of the Deed as expressed in cl 8 of the Deed. 2. Despite the operation of cl 13 of the Deed to do all things necessary to consent to and permit the Proberts to appeal, there is no avenue to appeal or seek a review of the Tree Permit Determination in that it does not constitute a "refusal" for the purposes of s 2.12 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW) (SEPP BC), which is in the following form: 2.12 Appeal to Land and Environment Court (1) An applicant for a permit may appeal to the Land and Environment Court against the refusal by a council to grant the permit. (2) Any such appeal is to be made within 3 months after the date on which the applicant is notified of the decision or within 3 months after the council is taken to have refused the application (whichever is the later). 1. The Proberts' draw comparison between s 2.12 of the SEPP BC and s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA), which provides as follows: 8.7 Appeal by applicant - applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. 1. In doing so, the Proberts' contend that the language used in s 8.7 of the EPAA is wider in scope than s 2.12 of the SEPP BC in that mere dissatisfaction with a determination is sufficient grounds for an appeal. 2. It can be inferred from the Proberts' submissions that the term "refusal" in s 2.12 of the SEPP BC should be read as a complete rejection of an application in whole. The Proberts submit that in circumstances where the subject permit was not refused but was instead approved with conditions to allow a more limited form of 'clearing', there is no "refusal" enabling a right of appeal under s 2.12. 3. Applying this argument to the present proceedings, Northern Beaches Council's decision to issue a singular determination in the form of the Tree Permit Determination that granted permits referable to all nine trees does not constitute a "refusal" within the meaning of s 2.12 of the SEPP BC, but rather, is a grant of a permit with conditions. Consequently, the Proberts contend that they did not have standing to appeal the Tree Permit Determination. 4. Mr Christie's unilateral withdrawal of the Second Application constitutes a breach of his obligations in cll 3.1 and 8 of the Deed. 5. The Proberts are entitled to specific performance of Mr Christie's obligation to submit a further joint tree removal application to Northern Beaches Council.

Mr Christie

Mr Christie's primary submission is that the Deed cannot be construed as imposing an obligation to do all things necessary to remove the nine trees listed in cl 3.1, but rather, makes provision for the lawful removal of the nine trees, subject to Northern Beaches Council's consent.
The most significant point of divergence between the respective submissions arises in relation to an alleged further agreement. Whilst the Proberts solely rely on the Deed, Mr Christie submits that a further agreement emerged from the correspondence exchanged between 22 and 24 May 2023 containing terms that upon Mr Christie's execution of the Second Application, the 2022 proceedings would be discontinued by the Proberts.
Mr Christie's submissions can be summarised as follows: 1. Clause 3.1 of the Deed does not impose any obligation on Mr Christie to remove the nine trees, it is an expression of intention only. Even if cl 3.1 does impose an obligation on Mr Christie, it must be implied that the removal could only be done lawfully, subject to the conditions of Northern Beaches Council's approval. 2. Clause 4 of the Deed obliged the parties to use their best endeavours to lodge a joint tree removal application by 23 December 2022 in the form of Annexure B to the Deed with the documents in Annexure C to the Deed attached as well as the Deed. This was a single application. 3. Clause 13 of the Deed obliged Mr Christie to do all things necessary to consent to and permit the Proberts to appeal to the LEC. Clause 11.3 of the Deed required the costs of that appeal to be met by the Proberts. 4. The further assurance clause in cl 8 of the Deed does not give rise to an obligation on Mr Christie to participate in multiple applications to Northern Beaches Council to remove the trees until a successful one is obtained. 5. The true meaning and effect of cl 6.1 is that, upon lawful removal of the trees permitted by Northern Beaches Council, the Proberts are obliged to consent to the filing of consent orders discontinuing the 2022 proceedings within 14 days of the removal of the trees that are the subject of the application and permit referred to in cl 6.2 (rather than cl 2 which is incorrectly cited in cl 6.1). 6. Clause 6.2 should be interpreted as containing a conditional obligation requiring Mr Christie to remove the trees that are lawfully approved by Northern Beaches Council, rather than all nine trees listed in cl 3.1. 7. By reference to cl 6.1 of the Deed, the Proberts are obliged to discontinue the 2022 proceedings. 8. If Mr Christie is not successful in relation to his arguments on the enforcement of the Deed, the Proberts are in breach of the further agreement formed on 22 and 24 May 2023 by refusing to discontinue the 2022 proceedings. 9. For the following reasons, the Proberts had a clear right of appeal of the Tree Permit Determination that they failed to exercise: 1. The Tree Permit Determination expressly notes the right of appeal (albeit the incorrect provision is cited). 2. Section 2.12 of the SEPP BC is consistent with a right of appeal for partial refusal of an application because on the express language used, the reference to "the permit" in s 2.12 is the permit that was applied for in full. The Tree Permit Determination provided a different permit than that which was the sought in the First Application, constituting a refusal. 3. Section 2.12 requires a construction that promotes the purpose or objects underlying the SEPP BC: see s 33 of the Interpretation Act 1987 (NSW). Relying on s 3.14(4) of the EPAA, the SEPP BC is an environmental planning instrument that regulates the removal of trees through a permit system, and to enable the applicant, if so inclined, to appeal Council's refusal to grant a permit, approval or other authorisation. 4. Long v City of Parramatta Council [2021] NSWLEC 1262 and Chang v Kur-ring-gai Council [2022] NSWLEC 1240 are two cases in which equivalent appeals proceeded in circumstances where multiple trees were the subject of an application for a permit, but the council in question permitted some (not all) of such trees to be removed. These cases will be considered in further detail below.

Proberts in reply

The Proberts' submissions in chief exclusively rely on the terms of the Deed. The Proberts submit that Mr Christie's preparedness to join in the Second Application was merely evidence of Mr Christie fulfilling his obligations under cl 8 of the Deed which imposes a continuing obligation to carry out and give effect to the terms and intentions of the Deed.
In reply to the suggestion by Mr Christie that there was a further agreement formed by the communications on 22 and 24 May 2023, the Proberts submitted that if there was such a further agreement, then it is subject to an implied term that required the agreement to be given effect, which was for the Second Application to be considered by Northern Beaches Council. It was submitted that the Proberts performed that agreement and Mr Christie did not because he unilaterally withdrew the Second Application.
These reply submissions are reflected in the following exchange with Ms Foda during the hearing: HIS HONOUR: So you're not seeking, in the alternative, to enforce that second agreement. You're just seeking, you've put all your eggs into the one basket, which is the deed, and you're not seeking to, if for any reason I was against you on the deed, you're not seeking to enforce this as an agreement pursuant to which the second application was made, and I have to deal with it on that basis. The other side is saying, I shouldn't ever have to get to the second agreement, but if I do, they put forward their analysis of it. What do you say to their analysis, which is, there was an offer made by your client and the offer was in the terms of the document at tab 18, which is an offer from your client, which was, it was prepared to discontinue the above proceedings if the tree permit application is signed by your client and promptly returned. The next letter, they say, is a counter offer, which is he will sign the second application provided it's in the same terms. He's highlighted the discrepancies, and he asks for an amendment, so that's a counter-offer, and then the document at 20 is an acceptance by your client of the counter offer by attaching the amended tree removal application, which they then sign. FODA: Well, your Honour, if that agreement is to be on foot, then you'd have to imply to that agreement that the application be considered by council. You couldn't simply allow someone to sign an application, allow it to go to council and then withdraw it and then expect the balance of the terms. Surely, based upon the matter that was before the parties, and that is when what's being put is in the same terms as the first, whether the first application, which derives itself from the deed itself - what those terms are, it would have to be implied to give effect to the agreement that the application actually be determined by council. HIS HONOUR: But their case against you on their cross summons is that your client breached the agreement by putting in an application which was not on the same terms as the last one because it had a cover letter that was inextricably tied to it. But they say you've breached the agreement by putting in that application with that cover letter. And they're seeking to specifically enforce that agreement by saying they complied with it, you breached it, and you were required to discontinue the proceedings, but you didn't. FODA: Well, we would say that the terms of the agreement don't speak to the letter. The terms of the agreement speak to the application. We prepared the application and we lodged the application. That's exactly what these terms speak to and that's exactly what happened. Now, if they had an issue, as I say, the letter is separate, we say, and doesn't form part of this agreement. And we say that the letter is consistent with the obligations pursuant to the deed. [1]
In their written submissions in reply, the Proberts contend that reliance cannot be placed on the covering letter to the Tree Permit Determination as in and of itself, it does not confer a statutory right of appeal. Further, it is submitted that little weight should be placed on Northern Beaches Council's suggestion that a right of appeal is available given the relevant act and policy are incorrectly cited, and Northern Beaches Council failed to apply the correct criteria to the Tree Permit Determination.
The Proberts also submit that Mr Christie's purposive construction of s 3.14(4) of the EPAA is misconstrued and extends beyond the clearly stated purpose of the legislation.
Finally, the Proberts suggest that the cases cited by Mr Christie bear no direct relevance to the facts at hand in that no issue of competency was raised, considered, or determined in relation to the right of appeal.

CLAIM TO ENFORCE THE DEED

These proceedings turn on the proper construction of the Deed and, depending on the outcome of that analysis, the further agreement.
I will first deal with the Proberts' claim to enforce the Deed.

Construction of written contracts

The principles that govern the construction of written contracts are well established. The meaning of the words used in the contract are to be determined objectively, applying the standard of what a reasonable person would have understood them to mean. This approach is commonly known as the objective theory of contract: Western Australian Rugby Union v Australian Rugby Union Ltd [2017] NSWSC 1174, Hammerschlag J (as his Honour then was) at [36].
Perhaps most notably, the objective theory of contract was summarised in the unanimous decision of the High Court of Australia in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [40]: This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
The relevant principles of construction were also summarised by Bathurst CJ (with whom Macfarlan and Meagher JJA agreed) in Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [52]: A contract is to be construed by reference to what a reasonable person would understand by the language in which the parties have expressed their agreement having regard to the context in which the words appear and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Limited v Alphafarm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 at [40]; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 234 CLR 151 at [53]. At least in the case of ambiguity, resort can be had to the surrounding circumstances known to the parties in interpreting the particular provision: Codelfa Construction Pty Limited v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 at 352; Western Export Services Inc v Jireh International Pty Limited [2011] HCA 45; (2011) 282 ALR 604.
This approach was more recently restated in Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart (2019) 267 CLR 514; [2019] HCA 13, Kiefel CJ, Gageler, Nettle and Gordon JJ at [44], confirming the relevance of the language used by the parties, the surrounding circumstances, and the purposes and objects to be secured by the contract.
The principles of the construction of a contract were also relevantly stated in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, French CJ, Nettle and Gordon JJ at [46] and [48]: [46] The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. … [48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
However, in some instances (as is the case in these proceedings), recourse to the circumstances surrounding the contract may be necessary. Mount Bruce details the circumstances in which this necessity may arise at [49]: It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice.
In this regard, Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352; [1982] HCA 24 dictates that any extrinsic facts must be within the knowledge of both parties to the contract, functioning as an aid to construction.
While the court should endeavour to reach an interpretation which reads all terms of the contract harmoniously, if that is not possible then the court should prefer the construction that produces the least disharmony: HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342, Leeming JA at [182] (Bathurst CJ and Payne JA agreeing).
Further principles on the construction of contracts generally are also applicable. In Private Mortgages Australia Pty Limited ACN 600 628 813 as trustee for the PMA Trust v Stever [2019] NSWSC 462, Henry J at [37] summarised these in the following way: If the words used in a contract are unambiguous, they must be given effect to even if the result may appear capricious or unreasonable, or it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language of a contract is open to different constructions, the one that will be preferred is the one which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 per Gibbs J at 109; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52; McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65.
The authorities also establish a principle of contractual construction that if the words of a contract are capable of being read in two ways, one of which is consistent with the law and the other is not, the former should be preferred. In Langley v Foster (1906) 4 CLR 167, Griffith CJ stated at 180-1: Now, as to the suggestion that the permission to remove timber necessarily imports something illegal. The proper rule for the construction of such an agreement is laid down in Sheppard's Touchstone: "That if the words may have a double intendment, and the one standeth with the law, and the other is against law, that it be taken in that sense which is agreeable to law". If, therefore, these words can be construed in a sense agreeable to the law, they ought to be so construed. Moreover, it must, I think, be taken to have been in the contemplation of the parties that the timber could not be removed without a licence, and it must also be taken that it was the intention of the parties that it should be obtained. Sufficient authority for that view is to be found in the case of Waugh v Morris , and in the case of Hutchinson v Scott in this Court.
The principle was further illustrated in Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279, where Mason P stated at [102]: The absolute construction contended for by Global involves the parties to the Contract promising in effect that one will act in a grossly uncommercial way that would involve unlawful activity on Legion's part and complicity on Global's part. Unless driven to such an outcome by intractable language, such a construction should be rejected having regard to the principle that, where the words of a contract are capable of two meanings, one lawful and the other unlawful, the former construction should be preferred.
The principle from these authorities was applied by Darke J in Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltd [2021] NSWSC 504 at [81]-[85]. In the ultimate appeal in that case to the High Court of Australia in Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd [2023] HCA 6, Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ at [36] said that this principle does not need to be expressly stated or implied in the contract but can be found inherent in the words used in the context of the whole contract.

Further Assurance

There is a species of express terms in contracts which are often labelled in modern day drafting as "further assurance" clauses. Such clauses have their historic context in the conveyance of old system title land to ensure that if any interests in the land were found to be outstanding after a conveyance of the land had been made, the conveyor would get that interest: see Handley v Gunner [2008] NSWCA 113, Campbell JA at [126] citing Partridge v Preddey (1904) 4 SR (NSW) 36 at 40. While each "further assurances" clause falls to be construed by means of the words used in their contractual context, in Fox Entertainment Precinct Pty Ltd v Centennial Park & Moore Park Trust [2004] NSWSC 214, Barrett JA at [195] said of the further assurance clause in that case: Even a more widely cast provision of the present kind, expressed to be a means of ensuring that a party subjected to a request under it does whatever the requesting party reasonably requires "to perfect the rights and powers afforded, created or intended by the parties to be afforded or created" in favour of the requesting party "by this Deed", cannot operate upon some subject matter wider than that delineated by the deed itself. The closing words of the present clause - "by this Deed" - must be emphasised.

Specific performance

In the summons and the cross-summons, both parties seek orders for specific performance of contractual obligations.
Specific performance is an equitable remedy requiring a contracting party to carry out one or more contractual obligations resting on that party: see Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467 at [564].
An order for specific performance is a discretionary remedy for the enforcement of contracts and may be granted in circumstances where: 1. the contract was validly entered into between the parties; 2. there has not been an effective recission, termination or repudiation of the contract; 3. the contract has not been abandoned or abrogated (mutually or unilaterally); 4. at all relevant times, the party advocating for the order of specific performance has been, and remains, ready, willing and able to perform their essential obligations under the contract; and 5. specific performance should not be declined on discretionary grounds such as hardship or because of impossibility. See Klein v McMahon [2017] NSWSC 1531; Parkes & Anor v Mamo [2016] NSWSC 1129; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 434.
Equity will not decree specific performance of a contract if the plaintiff has an adequate remedy at law.

Consideration

Applying the analysis in Toll and Mount Bruce, it necessary to determine the context, purpose and objects of the Deed having regard to the words used in it which reference the Restriction on Use, the mediation between the parties (being the context in which the Deed arose), and the 2022 proceedings.
The context for the proper construction of the Deed is provided by these matters.
First, the Christie Property is subject to the Restriction on Use, the terms of which require the registered proprietor of it (the Deceased) to ensure that each "tree, shrub, flora or other form of plant life" in the designated parts of the Christie Property are kept below specified heights.
Second, the Proberts and Mr Christie fell into dispute over Mr Christie's obligations as executor of the estate of the Deceased to adhere to the terms of the Restriction on Use, which led to the 2022 proceedings.
Third, in the 2022 proceedings the Proberts are seeking orders to enforce the Restriction on Use and Mr Christie is seeking orders to extinguish the Restriction on Use.
Fourth, the parties decided to attempt to settle the disputes over the Restriction on Use, which are the subject of the 2022 proceedings, by attending a mediation, which led to the Heads of Agreement and then the Deed.
In this context, the evident object and purpose of the Deed was to achieve a settlement of the disputes over the Restriction on Use which had been raised in the 2022 proceedings.
With these matters in mind, it is clear from the plain words of cl 3.1 of the Deed that the objective intention of the parties was to resolve the dispute over the Restriction on Use in the 2022 proceedings by having Mr Christie remove the nine identified trees on the Christie Property. They were not intended by the parties to be pruned, but removed.
By reference to what a reasonable person would have understood the words used to mean, and applying the principle from Laundy that the requirement of lawfulness of the obligation is inherent from the words used in their context, it is my view that cl 3.1 can be read in either of the following ways: 1. As a statement of intention by the parties that all nine trees are to be lawfully removed by Mr Christie in accordance with a tree removal permit from Northern Beaches Council; or 2. As a term that obliges Mr Christie to remove all nine trees to the extent that it is lawful for him to do so in accordance with a tree removal permit from Northern Beaches Council.
Both interpretations produce the same result. The Deed, as construed, renders the removal of the nine trees by Mr Christie in cl 3.1 as contingent on the lawful approval by Northern Beaches Council following the lodging of a tree removal application. The language used in cl 3.1 fails to place any absolute obligation on Mr Christie to remove all nine trees but is one which is conditioned by cll 4 and 6.2(a) in the manner outlined below.
To the extent that it matters, I consider cl 3.1 to be an obligation imposed on Mr Christie to remove the nine trees in accordance with a tree removal permit from Northern Beaches Council rather than a statement of intention as contended by Mr Christie.
But cl 3.1 does not impose an absolute obligation on Mr Christie to remove the nine identified trees. That is because cl 3.1 must be read harmoniously with cl 4, which is the obligation of the Proberts and Mr Christie to lodge a joint tree removal application with Northern Beaches Council for the removal of all nine trees identified in cl 3.1 pursuant to the SEPP BC, which was to be lodged by close of business on 23 December 2022, using the form at Annexure B to the Deed and attaching the documents listed at Annexure C to the Deed as well as the Deed itself. It is inherent from these words expressly referring to the operation of the legislative instrument that the parties intended that the removal of the nine trees must be in accordance with the law.
Clause 3.1 must also be read harmoniously with cl 6.2(a), which confirms the intention that the nine trees be removed lawfully. Clause 6.2(a) provides that Mr Christie's removal of the nine trees listed in cl 3.1 follows the granting of a permit pursuant to the joint tree removal application to Northern Beaches Council. The removal of the nine trees after the permit grant was to be as soon as practicable and within 21 days of it.
But the obligation of removal on Mr Christie in cl 6.2(a) is conditioned by the "granting of a permit pursuant to the Permit Application", so that Mr Christie was only obliged to remove such of the nine trees listed in clause 3.1 that Northern Beaches Council permitted him to remove. If the permit issued by Northern Beaches Council pursuant to the Permit Application only allowed for the removal of two of the trees listed in cl 3.1 (as was the case with the Tree Permit Determination), then under cl 6.2(a) Mr Christie was only obliged to remove those two trees and no more.
Clause 6.1(a) is also relevant to the obligation to remove lawfully the nine trees because the Proberts were obliged to consent to the filing of consent orders discontinuing the 2022 proceedings within 14 days of the removal of the trees in clause 6.2 (the reference to cl 2 is clearly a superficial drafting error). In my opinion, as the parties contemplated that the removal must be lawful, it would occur after the issuance of a permit by Northern Beaches Council which means that the discontinuance was to occur after the trees the subject of the permit had been removed. This means that once Mr Christie had removed the number of trees that Northern Beaches Council permitted him to remove in accordance with his obligation in cl 6.2(a), then the Proberts were required to consent to the filing of consent orders discontinuing the 2022 proceedings in accordance with their obligation in cl 6.1(a). Construing the obligation in cl 6.1(a) in this way achieves the object and purpose of the parties to bring a consensual end to the 2022 proceedings.
It is not in dispute that both parties complied with the requirements in cl 4 by lodging the First Application within time and in the form agreed. What is in dispute is whether the Deed deals with what was to occur on the outcome of the Tree Permit Determination.
In my opinion it does.
The parties contemplated what would happen if the Tree Permit Determination did not give approval for the removal of all nine trees. Clause 13 provided that if the "Permit Application" (which cl 1.1 of the Deed defined to be application to be lodged with Northern Beaches Council using the form in Annexure B, which cl 4 makes plain must be for all nine trees) had not been approved by 1 February 2023 then Mr Christie was to do all things necessary to consent to and permit the Proberts to appeal to the LEC. Clause 11.3 stated that any costs and disbursements of any appeal to the LEC pursuant to cl 13 are to be borne solely by the Proberts.
So it is abundantly clear that Mr Christie and the Proberts presumed as a matter of law that there could be an appeal to the LEC if the tree permit application was not approved in full for all nine trees, either because nothing had been issued by 1 February 2023, the application for the removal of all nine trees had been declined in full or the application for the removal of all nine trees had been approved in part and declined in part.
In my opinion, it matters not whether there was or was not a right of appeal to the LEC from the Tree Permit Determination because the Proberts did not purport to exercise that right whether it did exist or did not exist. If it did exist in law, the Proberts did not exercise the right that they had and which the terms of the Deed indicate that the parties presumed that they had. If it did not exist in law, then the parties were mistaken in their presumption as indicated by the terms of the Deed.
I do not find that it is necessary for me to decide whether the right to appeal the Tree Permit Determination to the LEC did or did not exist as a matter of law because that is a matter of statutory construction that should not be undertaken by me in circumstances where such a right is not sought to be exercised before me and no party to these proceedings has purported to exercise that right. It is merely a hypothetical question. As I will state in more detail below, in any event the subsequent events overtook the relevance of this question.
The Proberts contends that cl 3.1, read with cl 8 (the further assurances clause), required Mr Christie to do all things reasonably required to carry out and give effect to the terms and the intentions of the Deed, and that this obliged Mr Christie to cooperate with the Proberts in lodging a third tree removal application with Northern Beaches Council.
I reject this submission.
Clause 8 only operates to require the parties to do all things reasonably required to carry out and give effect to the terms and intentions of the Deed. The terms of the Deed required the lawful removal of all nine trees pursuant to a tree removal permit from Northern Beaches Council following a single joint tree removal application by the Proberts and Mr Christie, which was subject to any subsequent appeal to the LEC the Proberts might bring. Mr Christie was obliged to do the things reasonably required to make that single joint removal application in cl 4 and for the Proberts to appeal Northern Beaches Council's decision to the LEC.
The relevant words in cl 8 obliged the Proberts and Mr Christie to each do all "acts, documents and things as may reasonably be required by any other party effectively to carry out and give effect to the terms and intentions of this deed" (my emphasis).
The objective intention of cl 8 is to impose an obligation on both parties to do all things reasonably required to carry out and give effect to the terms and intentions of the Deed (my emphasis). It acts to provide support to the terms and intentions expressed elsewhere in the Deed. Similarly to the observations in Fox Entertainment, it does not function to widen the obligations in cl 4 or impose any additional obligation to lodge multiple tree applications until Northern Beaches Council approval is obtained. To do so would extend the obligations beyond the scope of the express terms and intentions contained in the Deed. To infer an intention contrary would be to engage in the conduct warned against in Mount Bruce, namely, to contradict the plain meaning of cl 8. The common intention of the parties at the time of forming the agreement in the Deed does not appear to be one where multiple applications would be lodged to satisfy the obligations under the Deed.
Reading the Deed as a whole with all its constituent parts, cl 13 supports an interpretation that the actual intention of the parties was for one joint tree removal application to be lodged and one appeal to be lodged if the application was not successful. Clause 13 requires Mr Christie to do all things necessary to consent to, and permit the Proberts to appeal to the LEC. It is clear that cl 13 seeks to accommodate the circumstance in which the tree removal application is not approved.
As the Proberts did not purport to lodge an appeal to the LEC against the Tree Permit Determination, no issue arises under cl 8 in relation to the obligations imposed by cl 13 on Mr Christie.
Applying the considerations referred to in Private Mortgage, it is no part of the court's role to remake or amend the terms of the Deed. The parties clearly intended that there would be one tree removal application, not multiple ones.
The obligation of the Proberts to consent to the discontinuance of the 2022 proceedings arose once there has been a lawful removal of the trees pursuant to the Tree Permit Determination. Only two of the trees were permitted to be lawfully removed.
Accordingly, I am of the view that Mr Christie is not in breach of any of the clauses of the Deed and the Proberts' application to seek specific performance of the Deed must fail. I am also of the view that pursuant to cl 6.1(a) of the Deed, the Proberts are obliged to consent to the discontinuance of the 2022 proceedings because the two trees the subject of the Tree Removal Permit have been removed.
That discontinuance covers both the summons and the cross-summons in the 2022 proceedings because "Proceedings" as defined in cl 1.1 of the Deed covers the whole of the proceedings.
This leaves the parties in the position where the Proberts have failed on their claim to enforce the Deed and Mr Christie has succeeded on his claim to enforce the Deed.
Of course, the Restriction on Use remains in place and I say nothing about the future enforcement of it.

CLAIM TO ENFORCE THE FURTHER AGREEMENT

Mr Christie contends that a further agreement was reached to the effect that upon Mr Christie's execution of the Second Application, the Proberts would discontinue the 2022 proceedings. As such, Mr Christie sought to enforce the further agreement.
But Mr Christie made it plain in his written submissions that if I was minded to dismiss the summons, which I am, "the issue of the agreement arising from the May Correspondence is otiose".
As indicated in their submissions in reply, the Proberts did not rely on a further agreement and only relied on the terms of the Deed.
For these reasons, because the circumstances have arisen where neither party is urging me to make findings in relation to the further agreement, I cannot unilaterally consider the issues of the further agreement other than to observe that it did not relate to the discontinuance of the 2022 proceedings but to the discontinuance of these proceedings.

CONCLUSION

The parties are to attempt to agree on short minutes within seven days reflecting the outcome in these reasons.
I will deal with costs should it be necessary. I will stand the matter over to a convenient date for directions and for the parties to inform me as to any other issues that are required to be dealt with.

Endnote

Tcpt, 14 November 2023, p 67-68 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2023

At a glance

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Judgment (22 paragraphs)

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Cases Cited (33)