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[2025] NSWSC 1041
General information, not legal advice.
Supreme Court of NSW
2025-09-12
Williams J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Probert v The Estate of the Late Amiel Colin Christie (No. 2) [2025] NSWSC 1041
Hearing dates: 26 August 2025
Date of orders: 12 September 2025
Decision date: 12 September 2025
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision: See orders at [78]
Catchwords: CIVIL PROCEDURE — summary dismissal – where plaintiffs’ land adjoins land formerly vested in second defendant and held on testamentary trust for third defendant, and now owned by third defendant – where plaintiffs claim declaratory and injunctive relief in respect of alleged breaches of covenants recorded on title to third defendant’s land – where plaintiffs are successors in title to the covenantee – where second defendant (and the deceased whose estate he represented) and third defendant are successors in title to the covenantor – principles applicable to the construction of covenants – whether covenant creates a positive obligation or a restriction – whether plaintiffs’ contention that the covenant is enforceable against successors in title to the covenantor is so obviously untenable that it cannot possibly succeed at trial
CIVIL PROCEDURE — Anshun estoppel – abuse of process – where plaintiffs initiated earlier proceedings claiming declaratory and injunctive relief in respect of alleged breaches of covenants against second defendant – where plaintiffs raise substantially the same issues against second and third defendants in these proceedings – where plaintiffs seek leave to amend to introduce claims for additional relief (compensation or damages for alleged breaches of covenants) and cause of action in nuisance – where earlier proceedings settled on terms that included discontinuance of those proceedings by consent – whether third defendant is privy in interest with the second defendant in respect of the earlier proceedings – whether or to what extent doctrines of Anshun estoppel and/or abuse of process operate to preclude plaintiffs from maintaining their claims and proposed claims in these proceedings
Legislation Cited: Probate and Administration Act 1898 (NSW), ss 44, 45, 47
Supreme Court Act 1970 (NSW), s 68
Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 12.3, 13.4, 14.28, 42.7
Cases Cited: Austerberry v Oldham Corporation (1885) 29 Ch D 750
Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39; [2023] NSWCA 22
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Beck v Weinstock [2012] NSWCA 289
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
C G Maloney Pty Ltd v Noon [2011] NSWCA 397
Champerslife Pty Ltd v Manojloviski (2010) 75 NSWLR 245; [2010] NSWCA 33
Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24
Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154; [1998] HCA 15
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Gosford RSL Club Ltd v Gosford Race Club (Supreme Court (NSW), Bryson J, 18 December 1997, unrep)
Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Kurzyp v Kurzyp [2021] NSWSC 851
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Probert v Christie [2021] NSWLEC 1529
Probert v The Estate of the Late Amiel Colin Christie [2023] NSWSC 1554
Realestate.com.au v Hardingham (2022) 277 CLR 115; [2022] HCA 39
Theunissen v Barter [2025] NSWCA 50
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Tulk v Moxhay (1848) 41 ER 1143
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Texts Cited: Sackville & Neave Australian Property Law (12th ed, 2024, LexisNexis)
Category: Procedural rulings
Parties: Keith Carwardine Probert (First Plaintiff)
Susan Elizabeth Probert (Second Plaintiff)
The Estate of the Late Amiel Colin Christie (First Defendant)
David Amiel Bruce Christie (Second Defendant)
Andrew Christie (Third Defendant)
Representation: Counsel:
Mr C J Leggat SC with Mr C Koikas (Plaintiffs)
Mr A F Fernon SC with Mr M Barnes (First and Second Defendants)
Mr A Christie (Third Defendant) (Litigant in Person)
Solicitors:
Gillis Delaney Lawyers (Plaintiffs)
Gamble Law & Estate Planning (First and Second Defendants)
File Number(s): 2024/390162
Publication restriction: Nil
These proceedings concern adjoining properties at 76 Pacific Road [1] and 31 Ralston Road [2] at Palm Beach in New South Wales.
31 Ralston Road is owned by the plaintiffs, Mr Keith Probert and Mrs Susan Probert. I shall refer to it as the Probert Property.
At the time of the commencement of these proceedings, 76 Pacific Road was vested in the second defendant, Dr David Christie, as executor of the estate of his late father, Dr Amiel Christie. The estate is named as the first defendant. On 23 May 2025, Dr David Christie caused the title to the property to be transferred to Mr Andrew Christie in accordance with the late Dr Amiel Christie’s last will. Mr Andrew Christie is the third defendant to these proceedings. I shall refer to 76 Pacific Road as the Christie Property.
The Christie Property is located immediately north of the Probert Property, such that the Probert Property shares its northern boundary with the southern boundary of the Christie Property. The Probert Property land slopes downwards from Ralston Road to its boundary with the Christie Property, and the Christie Property slopes downwards towards Pacific Road in the general direction of Palm Beach.
Mr and Mrs Probert sue for alleged breaches of covenants recorded on the title to the Christie Property concerning the height of trees and roofing materials used on any building erected on specified areas of the Christie Property.
Covenants benefitting the Probert Property were recorded on the title to the Christie Property by registration of a plan and s 88B instrument on 10 October 1991, at a time when Mr Graeme Dodds was the owner of both parcels of land.
The terms of the covenants are, relevantly:
“1. Terms of Restriction on Use Firstly Referred to in the Abovementioned Plan:
(a) … no tree, shrub, flora or other form of plant life on that part of the lot burdened within the zone 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 Australian Height Datum to the level at Points C and D being Reduced Level 94.55 metres Australian Height Datum.
(b) No building shall be erected or allowed to remain on that part of the lot burdened within the zone identified as X and enclosed by Points A, B, C and D:
(i) having a roof of any materials other than slate, tiles, bonded aluminium or timber shingles;
(ii) having a roof of any colour other than one colour;
(iii) having a roof of any colour other than a non-reflective darker shade of brown, green or grey.
…
- Terms of Restriction on Use Secondly Referred to in the Abovementioned Plan:
…
(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 plane running from the level at Points C and D being at Reduced Level 94.55 metres Australian Height Datum to the level at Points E and F being Reduced Level 96.19 metres Australian Height Datum.
…”
I shall refer to covenant 1(a) as the area X tree covenant, covenant 1(b) as the area X roof covenant, and covenant 2(b) as the area Y tree covenant.
Dr Amiel Christie acquired the Christie Property from Mr Dodds on or about 26 August 1993. Dr Amiel Christie passed away on 15 March 2022, leaving a will under which Dr David Christie was appointed as his executor and trustee, and the Christie Property was held on testamentary trust for Mr Andrew Christie. Probate was granted to Dr David Christie on 4 October 2022, whereupon title to the Christie Property was vested in him with effect from the date of Dr Amiel Christie’s death, to be held in accordance with that testamentary trust. [3] Mr Andrew Christie, who had been in exclusive occupation of the Christie Property since October 2018, initially declined to accept a transfer of the property due to concerns about capital gains tax. As I have already mentioned, the title was eventually transferred to Mr Andrew Christie on 23 May 2025.
Mr and Mrs Probert purchased the Probert Property on 1 July 2020 from Ms Barbara Matthews, who had acquired the title from Mr Dodds at some time after 10 October 1991.
This is the fourth set of proceedings initiated by Mr and Mrs Probert against members of the Christie family in relation to the Christie Property.
In 2021, Mr and Mrs Probert commenced proceedings against Dr Amiel Christie in the Land and Environment Court of New South Wales seeking orders pursuant to the Trees (Disputes Between Neighbours) Act 2006 (NSW) that the trees on the Christie Property be pruned to, and maintained at, the height specified in the covenants or, alternatively, that the trees be removed and a “more suitable” species be planted in their place (the 2021 proceedings). The Court dismissed those proceedings: Probert v Christie [2021] NSWLEC 1529.
On 21 June 2022, Mr and Mrs Probert commenced proceedings in this Court against Dr David Christie in his capacity as the executor of the estate of the late Dr Amiel Christie (2022 proceedings). [4]
Mr and Mrs Probert sought:
a declaration that Dr David Christie had breached, and is in breach of, the area X and area Y tree covenants by failing to keep trees and other plant life from protruding above the inclined height planes specified in those covenants;
a declaration that Dr David Christie had breached, and is in breach of, the area X roof covenant by reason of the building erected within area X comprising a metal roof that is not non-reflective, and not a darker shade of brown, green or grey; and
orders requiring Dr David Christie to do all things necessary to lower the height of the trees or other vegetation on the Christie Property to be no higher than the inclined height planes specified in the area X and area Y tree covenants (as applicable), and to replace or alter the metal roof so that it is non-reflective, and a darker shade of brown, green or grey.
Dr David Christie (in his capacity as executor) filed a cross-summons in the 2022 proceedings on 25 August 2022, seeking an order pursuant to s 89(1)(a) of the Conveyancing Act 1919 (NSW) extinguishing the covenants, in whole or part.
The parties to the 2022 proceedings participated in a court-ordered mediation in December 2022, following which they signed a Deed of Agreement on 20 December 2022 (the settlement agreement). Mr Andrew Christie was present at the mediation, but was neither a party to the 2022 proceedings nor a party to the settlement agreement.
The settlement agreement provided for an application to be made by the parties jointly to the Northern Beaches Council for permission for the removal of nine specific trees from the Christie Property, and for Dr David Christie to remove those trees within 21 days after that permission was granted. Mr and Mrs Probert would consent to the filing of consent orders discontinuing the whole of the 2022 proceedings within 14 days after the removal of the trees. If the Council had not granted permission to remove the nine trees by 1 February 2023, Dr David Christie would do all things necessary to consent to and permit an appeal by Mr and Mrs Probert to the Land and Environment Court. The settlement agreement further provided that any remaining trees after the removal of the nine specified trees, and any trees planted in the future, on any part of area X and area Y of the Christie Property, are to be maintained at a height level that complies with the covenants.
It was submitted on behalf of Dr David Christie that the proceedings should be summarily dismissed against him, or that he should be removed as a party to the proceedings, and that leave should be refused for Mr and Mrs Probert to file their proposed amended statement of claim insofar it contains claims against him, for the following reasons.
First, the area X tree covenant is positive rather than restrictive or negative in substance and is therefore unenforceable by Mr and Mrs Probert (as successors in title to the original covenantee) against Dr David Christie (as the executor of the estate of the late Dr Amiel Christie, a successor in title to the original covenantor).
Second, even if the covenants are arguably enforceable against Dr David Christie and Mr Andrew Christie as successors in title to the covenantor, the doctrine of Anshun estoppel precludes Mr and Mrs Probert from maintaining these proceedings against them, with the exception of the claims for declaratory and injunctive relief and compensation or damages in respect of alleged breaches of the area X tree covenant said to have occurred after the 2022 proceedings were settled on 20 December 2022, and the nuisance claims to the extent that they concern the height of the trees in the period after 20 December 2022.
Third, Mr and Mrs Probert have not provided “any justification, factual or legal” for their proposed claims for common law damages, equitable compensation and/or s 68 damages for the alleged breaches of the covenants, and their proposed claims for damages for alleged nuisance.
It is common ground between the parties that the area X and area Y tree covenants are not enforceable against Dr David Christie or Mr Andrew Christie, as successors in title to the original covenantor, at common law. Nor are they enforceable against successors in title in equity if, properly construed, the covenants impose a positive obligation to undertake work and expend money, rather than a negative restriction. [6]
It was submitted on behalf of Dr David Christie that there can be no dispute that those covenants impose a positive obligation, because they require the covenantor to spend money to lop and maintain trees, and to obtain the necessary consent from the Council to do so, on an ongoing basis.
As Mr and Mrs Probert submitted, the question whether the area X and area Y tree covenants impose a positive obligation or a negative restriction is a question of construction that falls to be determined objectively on the basis of the terms of the registered plan and accompanying s 88B instrument referred to in the certificate of title, and any relevant broad and enduring physical characteristics of the Christie Property, the Probert Property, and the surrounding land at the time of the creation of the covenants that were reasonably ascertainable by a third party at that time by, for example, reviewing publicly available maps or observing the land from outside the boundaries of the Christie and Probert properties. [7]
The registered plan and s 88B instrument do not identify the species of trees planted in areas X and Y of the Christie Property (save for an existing gum tree in area Y, which is excluded from the area Y tree covenant) [8] or the actual or potential height of those trees, at the time of the creation of the covenant. I was not referred to any evidence that this information is ascertainable from any other document forming part of the register.
It was submitted on behalf of Mr and Mrs Probert that, in construing the covenants, one therefore pays no regard to the features of any trees that were in existence on areas X and Y of the Christie Property as at 10 October 1991, including the actual height and potential future growth of those trees if left unchecked, as those matters are not enduring characteristics of the land that were reasonably ascertainable by a third party when the covenant was created.
Mr and Mrs Probert further submitted that it is reasonably arguable that the covenants should not be construed as imposing a positive obligation because they do not necessarily require the covenantor to undertake work and expend money. They submitted that equity will not decline to enforce the covenants against successors in title to the covenantor merely because, as a result of acts or omissions of owners of the Christie Property over the years since October 1991, compliance with the covenant now requires work to be undertaken and money to be spent. In support of that submission, Mr and Mrs Probert argued that there are a variety of ways in which the owner of the Christie Property might be in compliance with the area X and area Y tree covenants, without undertaking work or spending money. Mr and Mrs Probert offered only one example: if any trees planted on areas X and Y of the Christie Property at the time of the creation of the covenant were species of trees that were not capable of growing to a height exceeding the limits specified in the covenants, compliance might be achieved without any work or expenditure simply by refraining from planting any trees of a species that would potentially exceed those height limits. Mr and Mrs Probert submitted that the fact that the current proprietor of the Christie Property has found himself in a situation where work and expenditure are required in order to comply with the covenants does not, without more, warrant the covenants being characterised as imposing positive obligations in relation to trees.
Dr David Christie correctly accepts that Mr and Mrs Probert are entitled to raise in these proceedings their claims for relief in respect of the alleged breaches of the area X tree covenant in the period after the 2022 proceedings were settled on 20 December 2022 (if the covenant is arguably enforceable against him and Mr Andrew Christie as successors in title to the covenantor, as I have held above), and their nuisance claims to the extent that they concern the height of the trees in the period after 20 December 2022 (subject to the pleading issues referred to at [67]-[70] below).
Dr David Christie submits that the doctrine of Anshun estoppel precludes Mr and Mrs Probert from maintaining against him, and against Mr Andrew Christie, claims in these proceedings for declaratory and injunctive relief and compensation or damages in respect of alleged breaches of the area X tree covenant prior to 20 December 2022, claims for declaratory and injunctive relief and compensation or damages in respect of the alleged breach of the area X roof covenant, and the nuisance claims to the extent that they concern the roof or concern the height of trees in the period prior to 20 December 2022, because those claims either were made against him, or could and should have been made against him and/or Mr Andrew Christie, in the 2022 proceedings.
The Anshun estoppel doctrine [14] operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of an earlier proceeding as to have made it unreasonable in the context of that earlier proceeding for the claim not to have been made or the issue not to have been raised. The doctrine is informed by considerations of finality and fairness. [15]
The party invoking the Anshun estoppel doctrine bears the onus of establishing the unreasonableness of the other party’s choice not to make particular claims or raise particular issues in the earlier proceedings. [16] The determination of the reasonableness (or otherwise) of the second party’s conduct of the earlier proceedings involves “a value judgment to be made referable to the proper conduct of modern litigation”. That value judgment is to be made objectively, taking into account any facts relevant to the proper conduct of those earlier applications. The Court is not limited to considering the pleadings. [17]
It is the broader doctrine of abuse of process, rather than the related doctrine of Anshun estoppel, [18] that is relevant to the question whether Mr and Mrs Probert are precluded from re-agitating against Dr David Christie the same allegations and claims made against him in the 2022 proceedings. The Anshun estoppel doctrine is relevant to the question whether they are precluded from raising in these proceedings each of their claims against Mr Andrew Christie, and their nuisance claim against Dr David Christie to the extent that it arises out of the same factual allegations raised in the 2022 proceedings.
As I have declined to summarily dismiss the claims against Dr David Christie in respect of the alleged breaches of covenant, Mr and Mrs Probert are entitled to pursue their proposed claim against Dr David Christie for common law damages, equitable compensation or damages pursuant to s 68 of the Supreme Court Act for the alleged breaches of covenant, except to the extent that those claims are to be permanently stayed on the grounds of abuse of process or Anshun estoppel.
However, leave to file the proposed statement of claim in the form annexed to the submissions filed on behalf of Mr and Mrs Probert on 11 August 2025 will be refused, because the proposed claim for compensation or damages as formulated in that document extends to issues that are to be the subject of the stay.
To the extent that Mr and Mrs Probert wish to maintain a claim for aggravated common law damages in respect of the alleged breaches of covenant that are outside the scope of the stay and/or in respect of the alleged nuisance that is outside the scope of the stay, I accept Dr David Christie’s submission that it is incumbent on them to plead the material facts and circumstances relied on as giving rise to the alleged injury in respect of which such aggravated damages are sought. I do not consider that a bare assertion of “emotional distress” puts the defendants on adequate notice of the case they must meet. I reject Mr and Mrs Probert’s submission that it is a matter for evidence only.
A further reason why I would refuse leave to file the proposed statement of claim is that the nuisance claim, to the extent that it is not the subject of the stay, should be pleaded in a manner that puts the defendants on notice of the substance of the plaintiffs’ case against each of them about how they are each alleged to have created, adopted or continued the state of affairs constituting the alleged nuisance, and the conduct of each of them that is alleged to have been unreasonable.
Mr Andrew Christie is representing himself in these proceedings. Although his notice of motion referred to r 14.28 of the UCPR which concerns the striking out of pleadings, his application was in substance an application for a permanent stay of the proceedings against him or, alternatively, summary dismissal. All parties treated the application as such, and I shall deal with it accordingly.
Mr Andrew Christie made submissions to the same effect as those made on behalf of Dr David Christie, and expressly adopted the oral submissions made by senior counsel for Dr David Christie at the hearing of the applications.
Mr Andrew Christie also made submissions to the effect that the covenants are obsolete and should be extinguished under s 89 of the Conveyancing Act, and other submissions disputing the merits of the plaintiffs’ substantive claims set out in their proposed statement of claim. Those submissions are extraneous to the issues raised by the interlocutory applications presently before the Court.
For the reasons that I have already explained above in addressing Dr David Christie’s contentions, I decline to summarily dismiss the plaintiffs’ claims against Mr Andrew Christie, but there will be an order staying those claims to the extent indicated at [65] above.
The two defendants have each had a measure of success and failure in relation to their applications, and the dismissal of the plaintiffs’ application for leave to amend is a product of that outcome of the defendants’ applications.
In my opinion, the appropriate exercise of the costs discretion in all the circumstances is to order that the costs of the applications be reserved, with the intention that they ultimately be dealt with in the same way as the costs of the proceedings as a whole in accordance with r 42.7 of the UCPR.
For all of the foregoing reasons, the orders of the Court are as follows:
Order that the Estate of the late Dr Amiel Christie be removed as the first-named defendant in these proceedings.
Order that the proceedings be permanently stayed as against the second and third defendants insofar as they concern the plaintiffs’ claims for relief:
(a) in prayers 1 and 3(a) of the summons; and (b) in prayer 2 of the summons, to the extent that the alleged breaches of the first restriction as to user created by registered dealing DPXXXXX are said to have occurred prior to 20 December 2022.
**********
Lot XX in Section X of Deposited Plan XXXXX.
Lot X in Section X of Deposited Plan XXXXX.
Probate and Administration Act 1898 (NSW), ss 44, 45 and 47.
Proceedings 2022/180134.
Proceedings 2023/160897.
Tulk v Moxhay (1848) 41 ER 1143 at 1144 (Lord Cottenham); Austerberry v Oldham Corporation (1885) 29 Ch D 750 at 773-774 (Cotton LJ), 781-783 (Lindley LJ) and 784-785 (Fry LJ) (Austerberry); Gosford RSL Club Ltd v Gosford Race Club (Supreme Court (NSW), Bryson J, 18 December 1997, unrep) at pp 35-36; Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154; [1998] HCA 15 at [13]-[23] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39; [2023] NSWCA 22 at [75]-[77] (Mitchelmore JA) and [163]-[174] (Kirk JA) and the authorities there referred to.
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 at [37]-[45] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [15]-[18] (Barrett JA, Macfarlan JA and Tobias AJA agreeing) and the authorities there referred to; Theunissen v Barter [2025] NSWCA 50 at [85]-[108] (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing).
See [7] above.
[2025] NSWCA 50.
Note 7 supra.
See Austerberry at 773-774 (Cotton LJ).
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 128-129 (Barwick CJ); [1964] HCA 69; Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [46] (Gleeson CJ, Gummow, Hayne and Crennan JJ).
See the discussion by the learned authors of Sackville & Neave Australian Property Law (12th ed, 2024, LexisNexis) at [10.77]-[10.84].
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45.
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [22] (French CJ, Bell, Gageler and Keane JJ) (Tomlinson); Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44 at [29] (Kiefel CJ, Bell and Gageler JJ), [50]–[51] (Gordon J) and [70] (Edelman J) (Clayton).
Clayton at [30]–[31] (Kiefel CJ, Bell and Gageler JJ).
C G Maloney Pty Ltd v Noon [2011] NSWCA 397 at [59]–[68] (Campbell JA, Tobias AJA agreeing) and [154]–[163] (Handley AJA), citing Champerslife Pty Ltd v Manojloviski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [3]-[4] (Allsop P) as to the “value judgment” to be made; Beck v Weinstock [2012] NSWCA 289 at [72]–[73] (Campbell JA, McColl and Meagher JJA agreeing).
Tomlinson at [20]-[26] (French CJ, Bell, Gageler and Keane JJ).
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [38]-[46] (Kiefel CJ, Bell and Keane JJ) and [61]-[72] (Gageler J) (UBS v Tyne); Kurzyp v Kurzyp [2021] NSWSC 851 at [175] (Rees J) (Kurzyp).
Tomlinson at [17]-[40] (French CJ, Bell, Gageler and Keane JJ).
Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431 at [36] (Palmer J) (Running Pigmy); Johnson v Gore Wood & Co (a firm) [2002] AC 1 at 32-33 and 59, cited with approval in Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336 at [136] (Bathurst CJ, Beazley P and Emmett JA agreeing); Whelan Kartaway Pty Ltd v Donnelly [2012] VSC 45 at [24] (Davies J); Livingstone v Mitchell [2020] NSWSC 1464 at [70]-[72] (Adamson J); Kurzyp at [174]-[175] (Rees J).
Kurzyp at [174].
Running Pigmy at [27]-[36].
UBS v Tyne at [46] and [56] (Kiefel CJ, Bell and Keane JJ) and [78] (Gageler J).
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282-283 (Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel agreeing); Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347 (Mason J, Stephen J agreeing); [1982] HCA 24; Realestate.com.au v Hardingham (2022) 277 CLR 115; [2022] HCA 39 at [15]-[20] (Kiefel CJ and Gageler J) and [113]-[115] (Edelman and Steward JJ).
[2023] NSWSC 1554 at [132].
UBS v Tyne at [56] (Kiefel CJ, Bell and Keane JJ) and [78] (Gageler J).
Probert
The Estate of the Late Amiel Colin Christie
(2023) 111 NSWLR 39
(2006) 226 CLR 256
(1977) 180 CLR 266
(2010) 75 NSWLR 245
(2020) 272 CLR 1
(1982) 149 CLR 337
(1998) 193 CLR 154
(1964) 112 CLR 125
(2013) 84 NSWLR 41
(1981) 147 CLR 589
(2022) 277 CLR 115
(2015) 256 CLR 507
(2018) 265 CLR 77
(2007) 233 CLR 528
(2014) 313 ALR 665
On 16 January 2023, the Council granted permission for removal of two of the nine trees, and pruning of the remaining seven trees that were the subject of the application. The two trees approved for removal were removed in early February 2023.
Mr and Mrs Probert formed the view that the Council had failed to consider all relevant matters in determining the application, but that the relevant legislation and regulations did not confer on them the right to apply for a review of the Council’s determination. They contended that, in those circumstances, the settlement agreement obliged the parties to jointly lodge a fresh application for permission for removal of the seven trees in respect of which the Council had permitted only pruning.
Mr and Mrs Probert then commenced further proceedings in this Court seeking orders requiring Dr David Christie to participate in making such a fresh application by way of specific performance of the settlement agreement (the 2023 proceedings). [5] Dr David Christie filed a cross-claim seeking a declaration that he had complied with his obligations under the settlement agreement and a declaration and order that Mr and Mrs Probert were required to discontinue the 2022 proceedings. Mr Andrew Christie was occupying the Christie Property at the time of the 2023 proceedings, but he was not a party to the 2023 proceedings.
McGrath J delivered judgment in the 2023 proceedings on 12 December 2023: Probert v The Estate of the Late Amiel Colin Christie [2023] NSWSC 1554. His Honour considered that the proceedings turned on the proper construction of the settlement agreement (at [80]). His Honour held that the evident object and purpose of the settlement agreement was to achieve a settlement of the disputes concerning the covenants which had been raised in the 2022 proceedings, and that the objective intention of the parties was to resolve that dispute by having Dr David Christie remove the nine identified trees from the Christie Property (at [105]-[106]). His Honour construed the settlement agreement as requiring Dr David Christie to remove the 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 (at [107]-[113]). Noting that Mr and Mrs Probert had not exercised or purported to exercise any right of appeal from the Council’s determination of the joint application for a tree removal permit, McGrath J declined to determine whether or not such a right of appeal was available as a matter of law. His Honour held that, properly construed, the settlement agreement did not oblige Dr David Christie to facilitate a further joint application for a tree removal permit after the Council had determined the first application (at [114]-[127]). For those reasons, his Honour held that Dr David Christie was not in breach of the settlement agreement, and that Mr and Mrs Probert were obliged by that agreement to consent to the discontinuance of the 2022 proceedings following the lawful removal of the two trees permitted to be removed in accordance with the Council’s determination (at [128]-[129]).
On 21 December 2023, McGrath J made a declaration that Dr David Christie had complied with his obligations to Mr and Mrs Probert under the settlement agreement, and ordered Dr David Christie and Mr and Mrs Probert to consent to the discontinuance of the 2022 proceedings on the basis that each party bear their own costs of the 2022 proceedings. His Honour dismissed the summons filed by Mr and Mrs Probert in the 2023 proceedings and ordered them to pay Dr David Christie’s costs.
The 2022 proceedings were discontinued in accordance with those orders made in the 2023 proceedings.
Mr and Mrs Probert commenced the present proceedings by summons filed on 21 October 2024. The summons names the estate of the late Dr Amiel Christie as the first defendant and Dr David Christie as the second defendant. Mr and Mrs Probert’s claims for relief set out in the summons are substantially the same as their claims for relief in the 2022 proceedings. They claim:
a declaration that the defendants have breached, and are in breach of, the area X roof covenant by reason of the building erected within area X having a metal roof that is not non-reflective, and is not a darker shade of brown, green or grey (prayer 1);
a declaration that the defendants have breached, and are in breach of, the area X tree covenant by failing to keep six specified trees (referred to as the “Offending Trees”) from protruding above the inclined height plane specified by that covenant (prayer 2);
an injunction requiring the defendants to replace the metal roof, or otherwise alter the metal roof, of the building erected within area X so that it is non-reflective, and a darker shade of brown, green or grey (prayer 3(a));
an injunction requiring the defendants to do all things necessary to lower the height of the Offending Trees to be no higher than the inclined height plane specified in the area X tree covenant (prayer 3(b)); and
a quia timet injunction requiring the defendants to do all things necessary to maintain the trees or other vegetation growing on the Christie Property to be no higher than the inclined height planes specified in the area X and area Y tree covenants (prayer 3(c)).
On 28 March 2025, the Court made an order on the application of the first and second defendants joining Mr Andrew Christie as the third defendant to the proceedings, and an order for the proceedings to continue on pleadings.
As I have already mentioned, Mr Andrew Christie became the registered proprietor of the Christie Property on 23 May 2025.
Mr and Mrs Probert subsequently served a proposed statement of claim which, in addition to pleading the basis of their claims for relief in the summons:
restricts the claims for injunctive relief in prayers 3(a)-(c) of the summons to a claim against Mr Andrew Christie;
introduces a claim against each of the defendants for damages for the alleged breach or breaches of the area X tree covenant and the area X roof covenant, “such damages at common law, including aggravated damages, or alternately in equity or alternatively pursuant to s 68 of the Supreme Court Act 1970 (NSW)”; and
introduces a claim against each of the defendants for damages, including aggravated damages, for alleged nuisance. Mr and Mrs Probert plead that the glare arising from the reflective roof material and the alleged failure to maintain trees on the Christie Property has constituted substantial and unreasonable interference with the use of the Probert Property involving a failure by the defendants to act reasonably in accordance with the area X roof covenant and the area X tree covenant.
It is clear from the proposed statement of claim that the roof which is the subject of Mr and Mrs Probert’s claims for declaratory and injunctive relief in prayers 2 and 3(a) of the summons, and their proposed claims for damages for alleged breach of covenant and alleged nuisance, is alleged to have been installed in about early 2021, replacing an existing roof on the building that stands on the part of the Christie Property shown on the plan as area X. There is no suggestion that any work has been undertaken to the roof of the Christie Property subsequently.
It is also clear from the proposed statement of claim that Mr and Mrs Probert’s claims for declaratory and injunctive relief in prayers 2, 3(b) and 3(c) and their proposed claims for damages for alleged breach of the area X tree covenant and alleged nuisance in respect of the Offending Trees concern the height of the Offending Trees during the period from about 14 August 2020 to date.
I understand the claim for “damages” for the alleged breaches of covenant to be, in substance, a claim for common law damages (including aggravated damages), equitable compensation or damages pursuant to s 68 of the Supreme Court Act 1970 (NSW).
Mr and Mrs Probert accept that, before filing the proposed statement of claim, they require leave to amend their claim in order to introduce the new claims for damages for alleged breaches of covenant and the new claim in nuisance.
The estate of the late Dr Amiel Christie, which has been named as the first defendant in these proceedings, is not a legal entity. Mr and Mrs Probert accept that an order should be made removing the estate as the first-named defendant. They have confirmed that Dr David Christie is sued only in his capacity as the executor of the late Dr Amiel Christie’s estate.
The following interlocutory applications were heard on 26 August 2025:
Dr David Christie’s application made by notice of motion filed on 6 February 2025 for an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) dismissing the proceedings against him or, alternatively an order pursuant to r 6.29 removing him as a party to the proceedings;
Mr Andrew Christie’s application made by notice of motion filed on 4 June 2025 for an order that the proceedings be permanently stayed against him as an abuse of process or, alternatively, an order that the proceedings be dismissed against him pursuant to r 14.28 of the UCPR or the inherent jurisdiction of the Court; and
Mr and Mrs Probert’s application for leave to file the proposed amended statement of claim, which was not the subject of a notice of motion but which all parties treated as being before the Court.
I regard the first element of the argument referred to at [42] above as reasonably arguable. Indeed, it seems to me to be consistent with the judgment of the Court of Appeal in Theunissen v Barter and, therefore, correct. [9] However, the argument is significantly weakened by the second element. Trees are the subject matter of the covenants. As was submitted on behalf of Dr David Christie, trees usually grow in height over time. It is therefore strongly arguable that the covenants, properly construed, impose a positive obligation to undertake such work and incur such expenditure as may from time to time be necessary to prevent any trees from exceeding the relevant height limits specified in the two covenants. The mere fact that this may not require any work or expenditure at some times, or at all in the circumstances of Mr and Mrs Probert’s example, does not seem to me to support the construction of the covenants as imposing in substance a wholly negative restriction. Moreover, the hypothetical circumstances incorporated in Mr and Mrs Probert’s example propounded in support of the second element of their argument invites the Court to speculate about the very matter that the first element acknowledges cannot inform the construction of the covenants.
As is evident from the judgment of the High Court in Westfield Management Ltd v Perpetual Trustee Company Ltd, and by the subsequent judgments of the Court of Appeal which have applied the principles stated by the High Court to the construction of particular easements and covenants, the construction of easements and covenants affecting land can be a matter of some complexity. [10] I incline to the view that the area X and area Y tree covenants in the present case, properly construed, did impose positive obligations, and that, even if not construed as imposing obligations that were wholly positive in substance, equity would decline to enforce the covenants against a successor in title in a manner that required the undertaking of work and expenditure of money. [11] I consider that Mr and Mrs Probert’s argument to the contrary is weak for the reasons explained above, but it does not seem to me that it is so obviously untenable that it cannot possibly succeed at trial. [12] I accept Mr and Mrs Probert’s submission that the proper construction of the area X and area Y tree covenants is a matter that should be determined at final hearing rather than summarily.
For completeness, I acknowledge the alternative submission made on behalf of Dr David Christie that, assuming the area X and area Y tree covenants are enforceable against successors in title, they “cannot override the regulatory regime imposed by the Council for the removal or trimming of trees” and that “[t]here can be no breach” of those covenants by Dr David Christie in circumstances where he has complied with the Council’s determination of the application made in accordance with the 2022 settlement agreement. This submission was not accompanied by any analysis of the relevant statutory provisions and the authorities that have addressed the interplay between environmental planning legislation and instruments and rights and obligations under restrictive covenants. [13] The submission also failed to grapple with the fact that the present proceedings concern alleged breaches of the area X and area Y tree covenants during the period of approximately two and half years after Dr David Christie removed and pruned trees in accordance with the permit granted by the Council on 16 January 2023. I am therefore not persuaded by that submission to summarily dismiss the proceedings against Dr David Christie or to remove him as a party to the proceedings.
For all of those reasons, Dr David Christie’s first contention does not support his application for summary dismissal of the proceedings against him or for his removal as a party to the proceedings.
It is therefore not necessary for the purpose of determining the present applications to address Mr and Mrs Probert’s alternative submission that, even if equity would not enforce the area X and area Y tree covenants against successors in title to the covenantor, those covenants are enforceable against Dr David Christie by reason of ss 80, 88B, and/or 88H of the Conveyancing Act, and that common law damages are available as a remedy for non-compliance with covenants that apply through those statutory provisions. That is therefore also a matter for final hearing where the submission, if maintained, will need to be developed in far greater detail to address the text, context, and object of the provisions relied on (including the text of the provisions of Division 4 of Part 6 of the Act as a whole), and engage in a meaningful way with the contrary authorities identified in Dr David Christie’s submissions.
In my opinion, the re-agitation of the issues and claims that were raised against Dr David Christie in the 2022 proceedings is an abuse of process. It would be manifestly unfair to Dr David Christie to be put to the time and trouble of defending in these proceedings the same allegations which he defended and bargained to resolve on the terms of the settlement agreement in the 2022 proceedings, with which this Court held in the 2023 proceedings he has complied. Having raised those issues and claims in the 2022 proceedings, and chosen to conclude those proceedings by settlement on the terms of the settlement agreement entered into on 20 December 2022, Mr and Mrs Probert are now dissatisfied that Dr David Christie’s compliance with that agreement has not yielded the outcome they had hoped for. The public interest in the timely and efficient administration of justice, and Dr David Christie’s interest in not being compelled by the processes of this Court to respond to allegations to which he has already responded in the 2022 proceedings, outweigh Mr and Mrs Probert’s interest in re-agitating those matters in the hope of achieving a different outcome that will be more satisfactory to them. [19] As was submitted on behalf of Dr David Christie, the abuse of process extends to the claim for compensation or damages raised in these proceedings for the first time in respect of the same alleged breaches of covenant that were the subject of the 2022 proceedings.
I reject the submission made on behalf of Mr and Mrs Probert that any abuse of process (which they deny) does not extend to the claims they now seek to prosecute in these proceedings against Dr David Christie concerning alleged breaches of the area X roof covenant because the terms of the settlement agreement did not expressly deal with the roof. The terms of the settlement agreement provided for the discontinuance of the 2022 proceedings (including the pleaded claims concerning the roof) by consent.
It was submitted on behalf of Mr and Mrs Probert that the Anshun estoppel doctrine does not preclude them from raising in these proceedings the claims against Mr Andrew Christie and the claims against Dr David Christie that could have been raised but were not raised in the 2022 proceedings because: (1) Mr Andrew Christie was not a party to the 2022 proceedings; (2) the Anshun doctrine operates only where a plaintiff has prosecuted the earlier proceedings to conclusion by final judgment or settlement, and the 2022 proceedings were discontinued without any hearing on the merits; (3) by reason of r 12.3 of the UCPR, that discontinuance did not prevent Mr and Mrs Probert from claiming the same relief in fresh proceedings; and (4) the terms of the settlement agreement contained no release in favour of Dr David Christie or for the benefit of Mr Andrew Christie in respect of future claims arising from the same facts that gave rise to the 2022 proceedings.
I reject Mr and Mrs Probert’s first submission. As the beneficiary of the testamentary trust pursuant to which Dr David Christie held the Christie Property that had been vested in him on the grant of probate of the will of the late Dr Amiel Christie, Mr Andrew Christie had a legal interest in the outcome of the 2022 proceedings which was represented by Dr David Christie. I accept Dr David Christie’s submission that Mr Andrew Christie is therefore privy in interest with him in respect of the 2022 proceedings, and is subject to and able to take advantage of the doctrine of Anshun estoppel affecting Dr David Christie in respect of those proceedings. [20] Contrary to Mr and Mrs Probert’s submissions, Mr Andrew Christie is no less privy in interest to Dr David Christie merely because Mr Andrew Christie has also been in occupation of the Christie Property since 2018.
I reject Mr and Mrs Probert’s second submission referred to at [56] above, which fails to grapple with the fact that they were obliged to consent to the discontinuance of the 2022 proceedings under the terms of the settlement agreement, and the notice of discontinuance was filed in compliance with the orders made by this Court in the 2023 proceedings by way of enforcement of that agreement. It is well-established that the doctrine of Anshun estoppel may apply where a plaintiff has prosecuted a cause of action to its conclusion by judgment or settlement in earlier proceedings. [21] The authorities provide no support for treating differently a settlement that includes a discontinuance of the proceedings by consent. The considerations that led Palmer J to decide in Running Pigmy that it was not an abuse of process and that the Anshun estoppel doctrine did not apply where a plaintiff commenced fresh proceedings after discontinuing earlier proceedings on the same cause of action with the leave of the Court – a mere discontinuance as referred to by Rees J in Kurzyp [22] – are not applicable to a case such as the present, where the parties were obliged to consent to the discontinuance under the terms of their bargain to settle the earlier proceedings. [23] In any case, even a mere discontinuance may result in subsequent fresh proceedings amounting to an abuse of process, depending on all the circumstances. [24]
I reject the submission made on behalf of Mr and Mrs Probert that the discontinuance in the present case was intended to keep alive all of the matters raised in the 2022 proceedings because none of those matters had been the subject of findings made by the Court, and that the settlement agreement contained an implied term to that effect. The hypothetical reasonable person with knowledge of the circumstances known to both parties would not have understood the terms of the settlement deed as meaning that the parties intended that Mr and Mrs Probert would be at liberty to re-agitate the issues raised in the 2022 proceedings in any fresh proceedings that they may choose to commence in the future. The alleged implied term does not satisfy the well-known criteria for implication. [25] In particular, it is not so obvious that it goes without saying.
Mr and Mrs Probert rely on McGrath J’s observation at the conclusion of his reasons for judgment that “the Restriction on Use remains in place and I say nothing about the future enforcement of it”. [26] Contrary to the submissions of Mr and Mrs Probert, I do not consider that this statement intimates that any fresh proceedings brought in respect of the same alleged breaches of the covenants which were the subject of the 2022 proceedings and the settlement agreement would not be an abuse of process or the subject of an Anshun estoppel. His Honour’s observation merely acknowledges that the covenants had not been extinguished, and that further questions concerning the enforcement of the covenants may arise from future events. His Honour expressly disavowed making any statement about such further questions.
I reject Mr and Mrs Probert’s third and fourth submissions referred to at [56] above. It does not follow from the absence of a release in the settlement agreement, or from the operation of r 12.3 of the UCPR, that the raising of the issues and claims referred to at [53] above against Dr David Christie and Mr Andrew Christie in the present proceedings cannot be an abuse of process or attract the operation of the Anshun estoppel doctrine. [27] For all of the reasons explained above, and the further reasons explained below, the Anshun estoppel doctrine and the doctrine of abuse of process do preclude Mr and Mrs Probert from raising those issues and claims in these proceedings in the circumstances of this case.
With the exception of alleged breaches of the area X tree covenant in the period after 20 December 2022, the alleged facts giving rise to all of the issues and claims that Mr and Mrs Probert now seek to raise in these proceedings were known to them throughout their prosecution of the 2022 proceedings until those proceedings were settled on 20 December 2022. Those facts are relatively confined. The legal issues arising from them are not complex in the scheme of litigation in this Court. It is plain that Mr and Mrs Probert’s decision to raise only a subset of those issues and claims in the 2022 proceedings was a deliberate decision. It was submitted on their behalf that they sought in the 2022 proceedings to maintain “good neighbourly relations” by focussing on achieving an agreement for the removal or pruning of the trees rather than arguing about the enforceability of the covenants and the history of the planting and maintenance of the trees, and engaging in “complex and expensive legal arguments about the manner of quantification of damages for impact on iconic views”. That misstates the nature of the issues raised by their claims pleaded in the 2022 proceedings. Their claims for declaratory and injunctive relief in those proceedings gave rise to the very arguments about the enforceability of the covenants and the history of planting and maintenance of trees that they say they sought to avoid in the interests of “good neighbourly relations”. If an agreement was their objective, they achieved that by the settlement agreement. They nevertheless now rely on Dr David Christie declining to participate in a second application to the Council for permission to remove the trees (the very thing that this Court held in the 2023 proceedings he was not obliged to do) as justifying their commencement of these proceedings agitating the same issues that they raised in the 2022 proceedings, against both Dr David Christie and Mr Andrew Christie and with expanded claims for relief. The submission that this strategy was informed by a desire for “good neighbourly relations” cannot be accepted.
It was further submitted that Mr and Mrs Probert had wished to avoid in the 2022 proceedings “the expense and distress involved in having the plaintiffs, as retirees, provide evidence about anxiety and emotional distress” that is said to be relevant to the claim for aggravated damages that they now wish to prosecute in the present proceedings. That submission cannot be accepted in the absence of any evidence from Mr or Mrs Probert that they were anxious or distressed about the prospect of giving such evidence or that the cost of doing so dissuaded them from including claims for damages in the 2022 proceedings.
In my opinion, the deliberate decision of Mr and Mrs Probert to confine the issues and claims raised in the 2022 proceedings as they did, withholding the expanded claims arising from the same facts which they now seek to prosecute against Dr David Christie and Mr Andrew Christie, was unreasonable and inimical to the proper conduct of modern litigation, which must be undertaken in a manner that serves not only the parties’ private interests but also the public interest in the timely and efficient administration of justice through the publicly funded resources of the courts.
For all of those reasons, the abuse of process and Anshun estoppel doctrines operate to preclude Mr and Mrs Probert from raising in these proceedings their claims against Dr David Christie and Mr Andrew Christie for declaratory and injunctive relief and their proposed claim for compensation or damages in respect of alleged breaches of the area X tree covenant prior to 20 December 2022, their claims against Dr David Christie and Mr Andrew Christie for declaratory and injunctive relief and their proposed claim for compensation or damages in respect of the alleged breach of the area X roof covenant, and their claims against Dr David Christie and Mr Andrew Christie in nuisance to the extent that they concern the roof or concern the height of trees in the period prior to 20 December 2022. There will therefore be an order that those claims for declaratory and injunctive relief be permanently stayed. Leave to amend by filing the proposed statement of claim in the form annexed to the submissions filed on behalf of Mr and Mrs Probert on 11 August 2025 will be refused because it pleads the claims that are to be the subject of that permanent stay.
Subject to the matters addressed at [67]-[70] below, Mr and Mrs Probert are entitled to maintain their claims against Dr David Christie and Mr Andrew Christie in these proceedings to the extent that they concern alleged breaches of the area X tree covenant, and the alleged nuisance caused by trees exceeding the area X tree covenant height limit, in the period after 20 December 2022 (and, in Dr David Christie’s case, until 23 May 2025). Dr David Christie’s application for an order removing him as a party to these proceedings must therefore be dismissed.