What has happened?
In June 2024 we wrote about Xu v Johns [2024] NSWLEC 33, where the Chief Judge dismissed a second set of tree dispute proceedings brought by neighbours who were trying to re-run a case they had already lost. [Link to June 2024 article]
The same neighbours then brought a third set of proceedings about the same two trees. In Xu and Anor v Johns [2025] NSWLEC 81, Justice Robson dismissed those proceedings too. The Court also made a vexatious proceedings order stopping the neighbours from suing our client in the Land and Environment Court for two years without the Court's permission.
Our firm acted for the successful respondent, Ms Johns.
Context
The dispute concerned a Loquat and a Sydney Peppermint on Ms Johns' land. Since mid-2023, the neighbours had:
brought a Class 2 tree application, which was refused after an on-site hearing (Xu v Seccombe [2023] NSWLEC 1670);
started, and then withdrawn, a Local Court claim about the same vegetation;
brought a second Class 2 application, which was summarily dismissed with costs (Xu v Johns [2024] NSWLEC 33);
sought unsuccessfully to reopen fencing orders made in the Local Court; and
challenged a bankruptcy notice issued to recover the earlier costs order in the Federal Circuit and Family Court.
In December 2024 they filed a third Class 2 application, again seeking removal of the two trees and damages. They also asked the Court to set aside the Chief Judge's earlier orders.
The decision
No back door to set aside earlier orders. Final orders can generally only be challenged on appeal or in proceedings alleging fraud. The neighbours had not pursued an appeal, and their allegations of "cover up fraud" had no evidentiary basis.
An abuse of process. The Court applied the same principles explained in our earlier article:
Res judicata: the claim that the trees damaged the neighbours' property had already been decided;
Issue estoppel: whether the tree roots caused damage had already been determined; and
Anshun estoppel: any claim about the roots of the other tree could and should have been raised in the first case.
A fresh expert report did not change this. It showed no relevant change in circumstances since the earlier decision.
The vexatious proceedings order
Under the Vexatious Proceedings Act 2008 (VP Act), the Court may restrain a person who has "frequently" instituted or conducted vexatious proceedings. The Court found that a series of steps taken by the neighbours were vexatious. These included the second and third tree cases, the attempts to reopen the Local Court orders, the Federal Circuit and Family Court challenge, and an email to the Court attacking Ms Johns. Repeated attempts to re-agitate decided issues in a short period readily met the "relatively low threshold" of "frequently".
The Court noted that it must exercise restraint because access to the courts is important. It did not treat the first tree case as vexatious, given the neighbours were then unrepresented. It made an order limited to this dispute and to two years, rather than a blanket ban. The neighbours were also ordered to pay Ms Johns' costs of her motion.
How will this affect you?
A decision in a Class 2 tree dispute is final. Obtaining a new expert report will not, on its own, reopen the same claim.
Neighbours who are repeatedly taken to court over the same issue have remedies. These include summary dismissal, costs orders and, in serious cases, orders under the VP Act.
Orders under the VP Act will be tailored to what is necessary to protect the other party.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.