Shields v Monhem

Introduction 1Before the Court today is an Amended Notice of Motion, filed on 1 July ("ANOM") by the respondents, seeking to set aside the judgment given by, and orders made by, Commissioner Fakes, in a Class 2 tree dispute on 23 May 2014, pursuant to the Trees (Disputes Between Neighbours) Act 2006 ("Trees Act"). 2There is now clear evidence before the Court that the correct spelling of the respondents' surname is MONHEM - there was apparently an error made on the Certificate of Title at the time of their purchase of the property, at which the relevant trees are primarily located (see survey in affidavit of respondents' son, Abraham Monhem, dated 1 July 2014, at par 36). I formally order the amendment of the Court record accordingly. 3Both parties are clearly of very limited means, and the respondents are also elderly, have some health problems, do not speak English very well, and cannot read it at all. Mr Monhem deposes, and Abraham confirms, that: "all [the respondents'] mail, including 'junk' mail, is kept aside for [Abraham] to read and translate." 4The respondents played no part in the hearing of the applicant's Class 2 application, and according to Abraham (14 July 2014, par 36), the respondents want the matter "reopened" so that they can: "... demonstrate that the Applicant has contributed to the damage to his property by not writing to [the respondents] about the alleged damage being caused by the Camphor Laurel prior to 12 December 2013; and that not all of the damage to his property has been caused by the Camphor Laurel as he alleges." 5Their counsel indicated particular reliance on s 12(h) of the Trees Act. 6Commissioner Fakes reduced her extensive reasons, and detailed orders, to writing: Shields v Monhim & anor [2014] NSWLEC 1097; but the orders have not yet been formally entered, in accordance with Rule 7.6 of the Land and Environment Court Rules 2007. 7Accordingly, the respondents rely upon Uniform Civil Procedure Rule 36.16 (1), which provides as follows: The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. 8A series of very complex orders were made by Commissioner Fakes, but finding the resources to carry them out seems to be the major issue facing both sides of the dispute. 9Despite the orders not having been entered, it appears, from Mr Shields' affidavit of 9 July 2014, that he has already taken some of the steps they require of him. 10The background to the learned Commissioner's decision to proceed in the absence of the respondents is set out in her judgment, at [4] - [7]: 4 The respondents did not attend the directions hearing or the on-site hearing. Following their non-attendance at the directions hearing, the Registry wrote to the respondents on 28 April 2014 advising them that the Court was satisfied they had been effectively served by the applicant. They were advised that in their absence the Court had made directions (attached to the letter) and the hearing was to take place, on site, on Friday 23 May 2014 at 9.30 am. The letter made it clear that should they fail to appear, the Court may make final orders in their absence and that those orders could include a requirement for the respondents to rectify any alleged damage. 5 On the morning of the hearing, I observed a vehicle leaving the respondents' property some ten minutes or so before the hearing was to commence. The applicant later advised me that the person leaving was one of the respondents. I knocked on the front door on three occasions. Although I heard someone inside, nobody answered the door. 6 I am satisfied that the respondents were fully aware of the proceedings, but elected not to appear. I am also satisfied that they were duly advised that the matter would proceed in their absence. Apart from the letter from the Court, it is clear from correspondence in the applicant's bundle of evidence that the respondents were on notice of the proceedings and of the basis of the application. 7 I proceeded to hear and determine the matter in the absence of the respondents. 11There appears to have been much regrettable unpleasantness between the parties over some years regarding the subject camphor laurel tree, although there is some dispute about when the respondents first were made aware of the applicant's claim that he suffered substantial property damage from the tree. 12Many of the parties' communications, and even the affidavits upon which they rely, contain intemperate language, and the applicant made a complaint to police, after one exchange with the 1st respondent (see Shields 2 April 2014, par 4). The escalation of the dispute is to be much regretted. 13The respondents unwisely declined to mediate the dispute, so the applicant brought these proceedings. 14The respondents hold a Council approval to remove the tree, but the applicant refuses to share the cost of it. 15Extra-curial dialogue between the parties was peremptorily terminated by the respondents. 16That step resulted in (1) the respondents' disregarding the service by the applicant of his Class 2 documents, and in (2) their claiming not to have been aware of their contents. 17I find that UCPR 10.21(1), regarding service, as properly understood, has been satisfied - the requirement to explain the documents arises only when they are rejected. 18I accept, on the evidence, (1) that the applicant's process was properly served, (2) that the 1st respondent then sought advice from his son, and (3) that he then tried to reject the Class 2 application. 19Before the Commissioner, there was clear evidence of the damage sustained by the applicant, and she formed the view that the camphor laurel was the primary cause. 20However, it is fair to say that, despite the non-participation of the respondents, the applicant did not get "all his own way" in the Commissioner's decision. This is not an appeal against that decision, but I have no criticism to make of her reasoning and conclusions. 21The respondents obtained Council's approval to remove the tree, but that approval will lapse on 28 August 2014. The estimated cost of that task ranges from $1800 to $4000. Council has apparently declined to assist financially. 22Regrettably the respondents thought that the Council approval, which left removal of the tree to their discretion, because Council was not satisfied (Abraham, 1 July 2014, par 13) of any "structural dysfunction" warranting removal, was the sole "law and authority" on the dispute.