This matter first came before me as duty judge on Thursday, 12 October 2023.
By summons filed on Sunday, 8 October 2023 (the summons), the applicant Ms Rhonda Slattery seeks the following orders:
1. Injunction or Orders to restrain and prevent demolition of the dividing fence between the properties identified as lot 165 DP 5350 and lot 164 DP 5350 until the matter is determined by the Court or as agreed.
2. Injunction or Orders to restrain and prevent any fencing works without orders from the Court or as agreed.
3. Injunction or Orders to retrain or prevent any damage by digging, scraping or cutting to the large paper bark trees located within property lot 164/5350 Davistown NSW unless consent and approval is granted by the relevant authority or as determined by the Court.
4. Any other orders the Court deems appropriate.
5. Costs.
The first and second respondents, Mr David Dunn and Ms Kim Dunn, are the owners of the property adjacent to Ms Slattery's property and subject of the summons.
The matter came before the duty judge, Moore J on Sunday, 8 October 2023.
On Sunday, 8 October 2023, the applicant filed in Court a notice of motion in essentially the same terms as the summons, adding an additional order sought in the following terms:
4 Or in the alternative, Order that the fence be modified in accordance with the terms and conditions set out by letter dated 3 October 2023 in Option 1 or Option 2 or as determined or amended by the Court.
At the ex parte hearing before Moore J, Ms Slattery read the following affidavits:
1. affidavit of Rhonda Slattery sworn 7 October 2023 exhibiting RS-1; and
2. affidavit of service of Rhonda Slattery sworn 8 October 2023.
Moore J considered that this Court did not have jurisdiction to make orders in relation to the fencing works sought in order 2 of the summons, and that the matter ought be transferred to the Supreme Court. Accordingly, Moore J made the following orders:
1. The Court orders that David Dunn (the First Respondent and Kerrie Dunn (the Second Respondent) are restrained by themselves, their servants, agents or contractors, from interfering with either of the paperback trees on 53 Mirren Avenue, Davistown (Lot 164 in Deposited Plain 5350), in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirren Avenue, Davistown (Lot 165 in Deposited Plan 5350), prior to 5:00pm on Thursday, 12 October 2023.
2. The Court orders that the First Respondent and the Second Respondent are restrained by themselves, their servants, agents or contractors, from demolishing any part of the concrete slab located on 53 Mirren Avenue, Davistown (Lot 164 in Deposited Plan 5350) in the vicinity of, or located across, the boundary between Lot 164 in deposited Plan 5350 and 52 Mirren Avenue, Davistown (Lot 165 in Deposited Plan 5350), prior to 5PM on Thursday, 12 October 2023.
3. The proceedings be transferred to the Supreme Court of New South Wales.
Subsequent to Moore J ordering the transfer of the proceedings to the Supreme Court, the proceedings were listed before the duty judge in Equity, Henry J who also heard the matter ex parte. On Sunday, 8 October 2023 her Honour delivered judgment: Slattery v Dunn & Anor [2023] NSWSC 1205.
At [6] of her reasons for judgment, Henry J said of the background to the application:
6. The urgency of the current application arises as yesterday (on Saturday, 7 October 2023) the plaintiff received a letter from the defendants notifying her that they intended to commence works to demolish the boundary fence at 7.00am on Monday, 9 October 2023 and, amongst other issues, the plaintiff has two large dogs that need to be confined. It appears from the materials before the Court that there have been some discussions and proposals made by the plaintiff to resolve the dispute and confine the nature of the works, but these have not been accepted by the defendant.
Her Honour made the following orders:
1. Upon the undertaking of the Plaintiff to pay the requisite filing fee or obtaining deferment of payment of that fee from the Registry, grant leave to the Plaintiff to file in Court the Summons and Notice of Motion dated 7 October 2023, the affidavit of Rhonda Slattery dated 7 October 2023 and Exhibit RS-1 to that affidavit.
2. Upon the Plaintiff giving the usual undertaking as to damages, order that until 5.00pm on Thursday, 12 October 2023, David Dunn (the First Defendant) and Kim Dunn (the Second Defendant) be restrained by themselves, their servants, agents or contractors from trespassing or entering upon XX Mirreen Avenue, Davistown NSW 2251 at Lot 164 DP 5350 (Plaintiff's Property) and interfering with and damaging the existing dividing fence located on or in the vicinity of the contiguous boundary between the Plaintiff's Property and XX Mirreen Avenue, Davistown NSW 2251 at Lot 165 DP 5350 (Defendants' Property).
3. Pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the Summons, Notice of Motion, affidavit of Rhonda Slattery and Exhibit RS-1 (Documents) together with a copy of these orders be abridged to 8.00pm on 8 October 2023.
4. Service of the Documents and a copy of these orders is to be effected on the Defendants by:
a. hand delivery of the Documents addressed to the Defendants at the Defendants' Property; and
b. by email to dandmdbuilding@gmail.com, attention David Dunn.
5. Note that Land and Environment Court proceedings 2023/123456 (LEC Proceedings) have been transferred to the Supreme Court of New South Wales and direct that the LEC Proceedings and these proceedings to be heard together.
6. List these proceedings and the LEC Proceedings before the Equity Duty Judge at 10.00am on Tuesday, 10 October 2023.
7. Liberty to apply to the parties on four (4) hours' notice
8. These orders be entered forthwith.
On Tuesday, 10 October 2023, the matter returned before Henry J. The applicant was represented by counsel, and the respondents were self-represented. Her Honour ordered that the proceedings be transferred back to this Court, her Honour saying as follows in relation to the jurisdiction of this Court:
HER HONOUR: By transferring these proceedings back to the Land and Environment Court, the Land and Environment Court will have the jurisdiction of this Court to determine any issues that this Court could determine and that court couldn't.
And in relation to the suitability of the proceedings to be the subject of mediation, her Honour said:
HER HONOUR: …What I am proposing is that the matter go back to the Land and Environment Court, and I would seriously encourage the parties to agree to a mediation, because that will be the quickest way to resolve the issue, and will avoid the costs and time associated with legal proceedings further.
Henry J made the following orders:
1. Pursuant to s 149B of the Civil Procedure Act 2005 (NSW), order that these proceedings 2023/00319369 and proceedings 2023/00320641 (which were transferred from the Land and Environment Court to the Supreme Court on 8 October 2023, being Land and Environment Court proceedings 2023/00319606) both be transferred to the Land and Environment Court.
2. Direct that the file name and documents in the two sets of proceedings be updated to record that the name of the second defendant/second respondent is Kim Dunn, not Kerrie Dunn.
3. List the transferred proceedings before the Duty Judge of the Land and Environment Court at 10.00am on 12 October 2023.
4. Direct the parties to file and serve any further evidence upon which they intend to rely and any written submissions by 5.00pm, 11 October 2023.
5. Note that the parties have informed the Court that they wish the proceedings to be heard on an urgent basis and they do not consider that the matter is suitable for mediation.
6. Grant leave to the defendants to file in Court the affidavit of David Dunn to 9 October 2023.
[2]
The present application
It follows that Ms Slattery's application for injunctive relief sought in the summons and the notice of motion filed on 8 October 2023 was before me on Thursday, 12 October 2023.
On that occasion, Ms Slattery was represented by counsel. Mr and Ms Dunn were self-represented.
[3]
Evidence on the application
On 8 October 2023, Ms Slattery filed in this Court an affidavit sworn 7 October 2023. Exhibited to the affidavit were survey plan prepared by Cahill & Cameron, registered surveyors, in relation to the boundary between the applicant's and respondents' properties, stamped approved plans the subject of the development consent approval DA/84/2023 dated 7 April 2023 (the DA) for Mr and Ms Dunn's property at 51 Mirreen Avenue, Davistown NSW, photographs and correspondence between the parties. Ms Slattery also filed an affidavit sworn 8 October 2023 as to service.
On 9 October 2023, the respondents filed in the Supreme Court an affidavit affirmed by Mr Dunn to which was exhibited a survey plan prepared by Cahill & Cameron dated 20 October 2022 marked up by Mr Dunn and marked up photographs.
At the hearing before me on 12 October 2023, Mr Dunn read an affidavit affirmed by himself on 11 October 2023. Exhibited to the affidavit was a survey plan prepared by Cahill & Cameron dated 20 October 2022 marked up by Mr Dunn, marked up stamped DA plans, marked up photographs, an arborist report prepared by Mark Bury dated 28 September 2023, and a building report from Action Building dated 11 October 2023.
[4]
The background to the dispute
It appears that the background to the dispute is as follows:
1. The applicant Ms Rhonda Slattery owns the property at 53 Mirreen Avenue Davistown NSW.
2. The respondents Mr David Dunn and Ms Kim Dunn own the adjoining property at 51 Mirreen Avenue Davistown NSW.
3. It appears to the Court plain from the material served by the parties, in particular the survey plan, that the existing boundary fence between the two properties encroaches on the respondents' property. Ms Slattery contends that the survey plan only indicates the approximate location of the boundary and is not definitive. However, she accepted that it was "a possibility" that the dividing fence encroaches on the respondents' property.
4. There has been correspondence between the parties in relation to the proposed demolition by the respondents, at their expense, of the existing boundary fence, the rebuilding by the respondents, at their expense, of a new boundary fence that does not encroach upon the respondents' property, and the trimming of two paperbark trunks and a concrete slab at the boundary between the properties which the respondents' say presently encroach upon the respondents' property.
5. The respondents have the DA for certain works on their property. There was no copy of the DA in evidence, however there are stamped DA approved plans exhibited to Ms Slattery's affidavit sworn 7 October 2023. Ms Slattery contends that the DA does not allow for "fencing works" or "demolition".
6. Mr Dunn is a licensed builder of 30 years' experience. He deposes in his affidavits that from discussion with the principal certifying authority, he understands that he "cannot obtain an occupation certificate until the fence is relocated to be along the boundary so that approved setbacks and landscaping can be provided".
7. The respondents say in letters to the applicant dated 20 July 2023, 18 September 2023 and 7 October 2023 that they require the removal of the existing boundary fence to allow site access to their property in order that they can undertake the development in accordance with a development consent.
8. By letter dated 7 October 2023, Mr Dunn informed Ms Slattery that the respondents would commence the works involving trimming the trunks of the two trees and replacing the boundary fence at 7am on Monday, 9 October 2023.
On the basis of the material filed to date, and the parties acceptance in Court today, it appears that the following issues are in dispute:
1. the location and removal of the boundary fence;
2. the scraping of the two tree trunks;
3. the cutting of the concrete slab;
4. the timing of the works and how they are proposed to be undertaken;
5. there appears also to be a particular issue in relation to the securing of Ms Slattery's two dogs whilst the works are undertaken.
[5]
Referral of the proceedings to mediation
Section 26 of the Civil Procedure Act 2005 (NSW) (CPA) provides:
26 Referral by court
(1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned.
(2) The mediation is to be undertaken by a mediator agreed to by the parties or appointed by the court, who may (but need not be) a listed mediator.
(2A) Without limiting subsections (1) and (2), the court may refer proceedings or part of proceedings for mediation under the Community Justice Centres Act 1983.
(3) In this section, listed mediator means a mediator appointed in accordance with a practice note with respect to the nomination and appointment of persons to be mediators for the purposes of this Part.
On Thursday, 12 October 2023, I determined the circumstances appropriate to order that the proceedings be referred for mediation.
The mediation was conducted on site at Mirreen Avenue, Davistown on Monday, October 2023 by Acting Commissioner Peatman. The parties were self-represented. The mediation failed to produce a settlement, and was terminated.
[6]
Orders made on 12 October 2023
On Thursday, 12 October 2023, I made the following orders:
1. Pursuant to s 26 of the Civil Procedure Act 2005 I refer the proceedings for mediation, commencing onsite at 51 Mirreen Avenue Davistown NSW 2251 at 10:30am on Monday, 16 October 2023.
2. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on Wednesday, 18 October, 2023, David Dunn (the first respondent), and Kerrie Dunn (the second respondent) be restrained by themselves, their servants, agents or contractors from trespassing or entering upon 53 Mirreen Avenue, Davistown NSW 2251 at Lot 164 DP 5360 (the applicant's property) and interfering with and damaging the existing dividing fence located on or in the vicinity of the contiguous boundary between the applicant's property and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 DP 5350 (the respondents' property).
3. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on Wednesday, 18 October, 2023, the respondents are restrained by themselves, their servants, agents or contractors, from interfering with either of the paperbark trees on 53 Mirreen Avenue, Davistown (Lot 164 in Deposited Plan 5350), in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 in Deposited Plan 5350.
4. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on Wednesday, 18 October, 2023, the respondents are restrained by themselves, their servants, agents or contractors, from demolishing any part of the concrete slab located on 53 Mirreen Avenue, Davistown (Lot 164 in Deposited Plan 5350) in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 in Deposited Plan 5350.
5. The parties, if they so wish, file and serve any position papers prior to the mediation by close of business on Friday, 13 October 2023.
6. The proceedings are listed before the duty judge at 10am on Wednesday, 18 October 2023.
7. Parties are to inform her Honour's chambers by 5pm on Tuesday, 17 October 2023 whether or not the mediation was successful.
I also extended the injunction granted on 8 October 2023 by Moore J in relation to the paperbark trees and relisted the matter before me today, Wednesday, 18 October 2023.
[7]
The hearing before me today
Yesterday at 2:43pm, my associate sent an email to the parties as follows:
Following the mediation before Acting Commissioner Peatman on Monday, 16 October 2023, at which the parties did not reach agreement, the matter is relisted before Justice Pritchard tomorrow, Wednesday, 18 October 2023 at 10:00am where her Honour presently proposes to make directions setting the matter down for hearing with a timetable providing for the proper filing of evidence and submissions.
If the parties are amenable to engaging in further mediation, the Court may have availability in the afternoon of tomorrow, Wednesday 18 October 2023, to facilitate such further mediation.
Could each of the parties please advise by return email by 5:00pm this evening whether they wish to pursue this course of a further mediation. Otherwise, the matter will remain fixed before her Honour at 10:00am tomorrow.
At 4:16pm, Mr Dunn responded that he did not wish to engage in further mediation.
At 5:35pm my associate confirmed the receipt of Mr Dunn's email sent at 4:16pm and noted that the Court had not received a response from Ms Slattery, and noted that the matter would be listed today, Wednesday, 18 October 2023 at 10:00am, and that the parties may attend courtroom 5A in person or, in order to obviate the need to travel to Sydney, provided AVL details.
Accordingly, the matter remained listed before me this morning. I informed the parties that Acting Commissioner Peatman is available to continue a mediation of this matter at the Land and Environment Court at 225 Macquarie Street, Sydney at the following times:
1. Wednesday, 18 October 2023, from mid-afternoon until late;
2. Friday, 20 October 2023 from 10:00am; and
3. Monday, 23 October 2023 from 10:00am.
I also informed the parties that this matter ought be capable of being mediated, and that both parties have a current exposure to costs, noting that the applicant Ms Slattery has provided to the Court the usual undertaking as to damages; that is, that she has undertaken to compensate the respondents for any damage suffered because of the injunctions, if it turns out that the injunctions should not have been granted as the applicant fails to prove her case at the final hearing. As Justice Henry explained to Ms Slattery:
HER HONOUR: Now, to obtain interlocutory relief, interim relief it's really called, on an urgent basis that you're seeking today Ms Slattery, the Court usually required an applicant such as yourself to give what's called the usual undertakings to damages. Was that explained to you at all in the Land and Environment Court?
PLAINTIFF: No.
HER HONOUR: And undertaking as to damages is an undertaking to compensate a defendant for any damage suffered because of the injunction, if it turns out that the injunction should not have been granted. So if you come to Court on an urgent basis, particularly when the other side is not here and you get what's called an interim injunction on the basis that you've come on an urgent basis and there hasn't been a full hearing and it turns out that the injunction should not have been granted and the defendant suffers some damage, financial, you would need to give an undertaking to the Court that you will pay those damages. Do you understand?
PLAINTIFF: Yes, I do.
I also emphasised that, overall, the question of costs is within the Court's discretion.
I also indicated to the parties that if a mediation does not result in a settlement of the matters in dispute, in Class 4 proceedings of this kind, I was inclined to make directions setting the matter down for hearing, with a timetable providing for the filing of evidence, in admissible form, and written submissions. In Class 4 proceedings, the Court can only proceed on the basis of admissible evidence assisted by applications properly drawn.
I raised whether the first respondent Mr Dunn might consider seeking legal advice and representation in relation to any application he may wish to bring in this Court in relation to the dispute. Prima facie (that is upon initial examination of the material before the Court), there appears to be an unlawful encroachment by Ms Slattery on the respondents' property. Whilst emphasising that the Court cannot provide legal advice to parties in proceedings before it, and that it would be entirely improper for it to do so, I provided to both Ms Slattery and Mr Dunn a copy of the Dividing Fences Act 1991 (NSW) and the Trees (Disputes Between Neighbours) Act 2006 (NSW).
I indicated that both parties might earnestly consider obtaining legal advice and representation, and that details could be obtained from the Registry in relation to the Court's duty lawyer scheme, as well as pro bono schemes of the NSW Law Society and NSW Bar Association.
[8]
Orders
I make the following orders:
1. The matter is listed for final hearing for one day at 10am on Thursday, 2 November 2023 at 225 Macquarie Street, Sydney.
2. The respondents David Dunn and Kim Dunn to file and serve any further evidence and written submission upon which they wish to rely by 5pm on Friday, 27 October 2023.
3. The applicant Rhonda Slattery file and serve any further evidence and written submissions upon which she wishes to rely by 5pm on Tuesday, 31 October 2023.
4. The parties to notify any objections to evidence by 5pm of Wednesday, 1 November 2023.
5. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on Thursday, 2 November, 2023, David Dunn (the first respondent), and Kim Dunn (the second respondent) be restrained by themselves, their servants, agents or contractors from trespassing or entering upon 53 Mirreen Avenue, Davistown NSW 2251 at Lot 164 DP 5360 (the applicant's property) and interfering with and damaging the existing dividing fence located on or in the vicinity of the contiguous boundary between the applicant's property and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 DP 5350 (the respondents' property).
6. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on Thursday, 2 November, 2023, the respondents are restrained by themselves, their servants, agents or contractors, from interfering with either of the paperbark trees on 53 Mirreen Avenue, Davistown NSW 2251 at Lot 164 in Deposited Plan 5350, in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 in Deposited Plan 5350.
7. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on Thursday, 2 November, 2023, the respondents are restrained by themselves, their servants, agents or contractors, from demolishing any part of the concrete slab located on 53 Mirreen Avenue, Davistown NSW 2251 at Lot 164 in Deposited Plan 5350 in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 in Deposited Plan 5350.
8. Liberty to apply at 24 hours' notice.
9. Costs reserved.
[9]
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: 18 October 2023