Shields v Monhem (No 2) [2014] NSWLEC 99

Shields v Monhem (No 2) [2014] NSWLEC 99

The respondents did not establish any error in the Commissioner's decision or any wholly exceptional circumstances requiring the judgment and orders to be set aside. The applicant's process was properly served, the respondents were aware of the proceedings but relied on poor advice and rejected the documents without checking their contents, and the interests of justice did not demand reopening despite hardship. The Amended Notice of Motion was therefore dismissed, while the existing orders were confirmed subject only to amended compliance dates.

Jurisdiction
Australia
Judgment Date
18 July 2014
Procedural Posture
Class 2 Tree Dispute Under the Trees (disputes Between Neighbours) Act 2006 / Respondents' Amended Notice of Motion to Set Aside Judgment and Orders Made on 23 May 2014 Before Entry, and to Re Open the Proceedings
Outcome
Respondents' Amended Notice of Motion dismissed; prior orders confirmed with amended compliance dates; no order as to costs.
Legal Topics
['application to Set Aside Judgment and Orders' 're Opening Proceedings' 'service of Court Process' 'orders Made in Absence of Respondents' 'costs' 'compliance Dates']
['practice and Procedure' 'land and Environment Court' 'tree Disputes Between Neighbours'] ['application to Set Aside Judgment and Orders' 're Opening Proceedings' 'service of Court Process' 'orders Made in Absence of Respondents' 'costs' 'compliance Dates']

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Procedural Posture

Class 2 Tree Dispute Under the Trees (disputes Between Neighbours) Act 2006 / Respondents' Amended Notice of Motion to Set Aside Judgment and Orders Made on 23 May 2014 Before Entry, and to Re Open the Proceedings

Legal Issues

  1. 1 ['Whether the judgment and orders made by Commissioner Fakes on 23 May 2014 should be set aside before entry under Uniform Civil Procedure Rules 2005 r 36.16(1).' 'Whether the respondents had been properly served and given an opportunity to be heard despite not participating in the hearing.' 'Whether the circumstances were sufficiently exceptional, and the interests of justice required, intervention to set aside the orders.' 'Whether the compliance dates in the orders should be amended.']

Ratio Decidendi

The respondents did not establish any error in the Commissioner's decision or any wholly exceptional circumstances requiring the judgment and orders to be set aside. The applicant's process was properly served, the respondents were aware of the proceedings but relied on poor advice and rejected the documents without checking their contents, and the interests of justice did not demand reopening despite hardship. The Amended Notice of Motion was therefore dismissed, while the existing orders were confirmed subject only to amended compliance dates.

Court Disposition

Respondents' Amended Notice of Motion dismissed; prior orders confirmed with amended compliance dates; no order as to costs.

Orders

  • ['The proceedings are amended to change the surname of both respondents to "Monhem".' "The Respondents' Amended Notice of Motion dated 1 July is dismissed." 'The Orders made by the Court on 23 May will be amended only in respect of dates for compliance.' 'There will be no orders as to costs.']