Gray v Ward [2010] NSWLEC 166

Gray v Ward [2010] NSWLEC 166

The Commissioner erred in law by treating the applicants' contentions and the evidence as confined to dead branches, and by holding that there was no evidence of live branches falling, when written evidence before the Commissioner showed live as well as dead branches had fallen and were likely to continue to fall. That misdirection required the appeal to be allowed and the matter remitted for rehearing.

Jurisdiction
Australia
Judgment Date
06 September 2010
Procedural Posture
Appeal Under S 56 a of the Land and Environment Court Act 1979 Against a Decision of a Commissioner Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment on Appeal
Outcome
Appeal allowed; time to commence the appeal extended; matter remitted to a Commissioner for rehearing.
Legal Topics
['appeal on Question of Law' 'falling Branches From Neighbouring Trees' 'tree Removal' 'extension of Time to Commence Appeal' 'error of Law']
['trees (neighbours)' 'land and Environment'] ['appeal on Question of Law' 'falling Branches From Neighbouring Trees' 'tree Removal' 'extension of Time to Commence Appeal' 'error of Law']

Case Brief

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Procedural Posture

Appeal Under S 56 a of the Land and Environment Court Act 1979 Against a Decision of a Commissioner Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment on Appeal

Legal Issues

  1. 1 ['Whether time to commence the appeal should be extended under Uniform Civil Procedure Rules 2005 50.3' "Whether the Commissioner erred in law by treating the applicants' contentions and evidence as confined to dead branches rather than live branches" 'Whether the matter should be remitted to a Commissioner for rehearing']

Ratio Decidendi

The Commissioner erred in law by treating the applicants' contentions and the evidence as confined to dead branches, and by holding that there was no evidence of live branches falling, when written evidence before the Commissioner showed live as well as dead branches had fallen and were likely to continue to fall. That misdirection required the appeal to be allowed and the matter remitted for rehearing.

Court Disposition

Appeal allowed; time to commence the appeal extended; matter remitted to a Commissioner for rehearing.

Orders

  • ['Extend the time for commencing the appeal to the date of commencement of the appeal.' 'The appeal is allowed.' 'The matter is remitted to a Commissioner for rehearing.']