Probert v The Estate of the Late Amiel Colin Christie

These proceedings involve a dispute between immediate neighbours over the removal of nine trees located at Palm Beach, New South Wales in accordance with an attempted settlement agreement of a wider underlying dispute which is the subject of separate proceedings in this court. The dispute was originally about the removal of nine trees but two of the trees have since been removed.

The upper crown of the remaining seven trees on one property substantially interferes with extensive water, headland and coastal views from the neighbouring property, encompassing iconic features such as Lion Island, Barrenjoey Headland and Palm Beach.

The plaintiffs/cross-defendants are Keith and Susan Probert (Proberts).

The defendants/cross-claimants are David Christie (Mr Christie) in his capacity as executor of the estate of the late Amiel Colin Christie (Deceased, who died on 15 March 2022) and in his personal capacity. Mr Christie is a son of the Deceased. Probate of the Deceased’s estate was granted to Mr Christie on 4 October 2022. Andrew Christie is also a son of the Deceased, being the eldest brother of Mr Christie. I will refer to Andrew Christie by his full name to distinguish him from his younger brother, Mr Christie, in this judgment.

From 14 June 1996 until his death on 15 March 2022, the Deceased was the registered proprietor of the property on which the trees are located, being Lot 8, Section 4, DP 13780, known as 76 Pacific Road, Palm Beach (Christie Property). Andrew Christie is the beneficiary of the specific gift of the Christie Property in the will of the Deceased.

Since 1 July 2020, the Proberts have been the registered proprietors of the neighbouring property with the affected views, being Lot 15, Section 4, DP 14048, known as 31 Ralston Road, Palm Beach (Probert Property).

The Christie Property is immediately north of the Probert Property.

At the time the Proberts purchased the Probert Property, the Deceased was still alive.

By way of summons filed 19 May 2023, the Proberts seek orders for specific performance of obligations they allege arise pursuant to a settlement agreement which makes provision for the removal of nine trees located on the Christie Property.

By way of cross-summons filed 23 June 2023, Mr Christie seeks a declaration that he has complied with his obligations under the settlement agreement and a declaration and order that the Proberts are required to discontinue earlier proceedings between them (2022/180134), and ancillary orders.

At the hearing, the Proberts relied on the following evidence:

At the hearing, Mr Christie relied on the affidavit of David Amiel Bruce Christie sworn 30 June 2023 and the documents contained in the exhibit to it.

Ms S Foda of counsel, instructed by Hunt & Hunt Lawyers, appeared for the Proberts. Mr A Fernon SC with Mr M Barnes of counsel, instructed by Gamble Law, appeared for Mr Christie.

Mr Christie was cross-examined during the course of the hearing but nothing emerged in that cross-examination which challenged his credibility.

The Christie Property is burdened by a restriction on the use of land which was registered on title on 9 October 1991, contained in Deposited Plan 645207 and was created pursuant to s 88B of the Conveyancing Act 1919 (NSW) (Restriction on Use).

The Restriction on Use imposes height limitations on trees and vegetation situated within two areas on the Christie Property, labelled “X” and “Y” respectively.

The relevant terms of the Restriction on Use within area X are set out below:

The relevant terms of the Restriction on Use within area Y are set out below:

The Restriction on Use benefits the Probert Property.

On 23 September 2020, Andrew Christie made an application to Northern Beaches Council for the removal of one tree and for the pruning of five trees on the Christie Property.

On 19 October 2020, Northern Beaches Council issued a notice of determination of permit which approved the removal of one tree and the pruning of five trees on the Christie Property, the pruning in each case involving up to 15% of the tree canopy and the removal of dead wood.

The Proberts then submitted an application to the Land and Environment Court (LEC) pursuant to the Trees (Disputes Between Neighbours) Act 2006 (NSW) seeking the pruning of trees on the Christie Property and the ongoing future maintenance of them at a height no greater than specified in the Restriction on Use.

On 10 September 2021, Douglas AC dismissed the Proberts’ application: Probert v Christie [2021] NSWLEC 1529.

On 21 June 2022, the Proberts commenced separate proceedings in this court (2022/180134) against the estate of the Deceased by way of summons seeking declarations and orders for specific performance to enforce the Restriction on Use (2022 proceedings).

On 15 July 2022, Darke J made orders in the 2022 proceedings that Mr Christie be appointed to represent the estate of the Deceased.

On 25 August 2022, Mr Christie, as executor of the estate of the Deceased, filed a cross-summons in the 2022 proceedings seeking an order pursuant to s 89(1)(a) of the Conveyancing Act to extinguish, in whole or part, the Restriction on Use.

The 2022 proceedings still remain on foot, with exactly the same parties as these proceedings.

On 2 December 2022, the Proberts, Mr Christie and Andrew Christie attended a court-ordered mediation and executed a document styled “Heads of Agreement”. Andrew Christie was not party to the Heads of Agreement.

On 20 and 21 December 2022, the Proberts and Mr Christie respectively executed a Deed of Agreement (Deed) to give effect to the Heads of Agreement. Andrew Christie is not a party to the Deed.

In the Deed, the Proberts were defined as “Probert” and the estate of the Deceased was defined as “Christie”.

The relevant clauses of the Deed provide:

On 21 December 2022, as envisaged under cl 4 of the Deed, the Proberts and Mr Christie lodged a joint tree removal application with the Northern Beaches Council for the removal of nine trees on the Christie Property (being those listed in cl 3.1 of the Deed) (First Application).

On 10 January 2023, Andrew Christie (who is not a party to the Deed) wrote a letter to Northern Beaches Council making submissions in relation to the First Application, concluding:

On 16 January 2023, Northern Beaches Council wrote a covering letter to the Proberts and Mr Christie stating that the First Application had been determined, attached to which was a Notice of Determination of Permit (TA2023/0006) which noted the “Proposed Application: Tree Removal (9 trees)” and the “Approved Application: Tree Pruning (7 trees) and Tree removal (2 Trees)” on the Christie Property (Tree Permit Determination). The Tree Permit Determination set out in further detail the identity of the two trees that were approved to be removed and the seven trees that were approved to be pruned, the latter including the percentage of the tree canopy that was permitted for pruning.

The covering letter also stated:

On 24 January 2023, the solicitors for Mr Christie (Gamble Law) sent an email to the solicitors for the Proberts (Hunt & Hunt) enquiring whether the Proberts intended to appeal the Tree Permit Determination to the LEC and asking that “[o]therwise, please confirm that your clients will discontinue the current Supreme Court proceedings”.

On 31 January 2023, Hunt & Hunt sent an email to Gamble Law advising that they had considered the Tree Permit Determination, further enquiries were being made with Council and stating:

The email stated that they would require a further four weeks to make enquiries and proposed adjourning the 2022 proceedings for 4 weeks until 3 March 2023. They further asserted that cl 6.1 of the Deed does not oblige the Proberts to discontinue the 2022 proceedings until the trees are removed.

In about early February 2023, two trees were removed from the Christie Property in accordance with the Tree Permit Determination.

On 17 February 2023, Northern Beaches Council provided Hunt & Hunt with the tree permit assessment report which had been requested by them. The tree permit assessment report set out the matters which had been considered by the Northern Beaches Council officer who had dealt with the First Application and issued the Tree Permit Determination.

On 21 February 2023, Hunt & Hunt sent a letter to Northern Beaches Council asserting that there had been non-compliance in the assessment which had been undertaken by the Northern Beaches Council officer in deciding to issue the Tree Permit Determination. Amongst the matters raised was the failure to consider the Restriction on Use, as well as the terms of the Deed, with numerous references to the Arboricultural Report indicating how each remaining tree failed to meet the terms of the Restriction on Use.

On 23 March 2023, Hunt & Hunt sent an email to Gamble Law, which relevantly stated:

On 3 April 2023 at 3:45pm, Gamble Law sent an email to Hunt & Hunt requesting a copy of the correspondence between Hunt & Hunt and Northern Beaches Council’s solicitor, and in what respect it was contended that the assessment was not in accordance with the relevant Development Control Plan. The email concluded that their client was not in a position to consent or otherwise to the lodging of a second application until they had received a response to the email.

On 3 April 2023 at 3:54pm, Hunt & Hunt sent Gamble Law an email which attached a copy of the letter dated 21 February 2023 sent by Hunt & Hunt to Northern Beaches Council. The email asserted:

On 13 April 2023, Gamble Law sent a letter to Hunt & Hunt via email requesting any relevant correspondence indicating that Northern Beaches Council agreed to a proposed second application being lodged or if that had been indicated orally. Gamble Law further advised that Mr Christie would not consent to lodging a second joint application to Northern Beaches Council. The letter also referred to cl 11.3 of the Deed (regarding costs of any appeal to the LEC to be paid by the Proberts) and stated:

The letter concluded by again requesting that the parties discontinue the 2022 proceedings.

On 20 April 2023, Hunt & Hunt sent a letter to Gamble Law asserting that cl 3.1 of the Deed stated an intention and agreement for the removal of nine trees and cl 8 of the Deed required Mr Christie to do all things reasonably required to give effect to the terms and intentions of the Deed. The letter said that Northern Beaches Council had confirmed there was no right of review or appeal for the Tree Permit Determination. Hunt & Hunt also pressed the need for a further tree removal application to be lodged to satisfy the Deed, and attached a tree removal application for Mr Christie to sign and return by 28 April 2023.

On 27 April 2023, Hunt & Hunt sent an email to Gamble Law referring to their letter dated 20 April 2023 and asking that they advise as a matter of urgency if they had received instructions from Mr Christie with respect to the second tree removal application.

On 2 May 2023 at 2:25pm, Gamble Law sent an email to Hunt & Hunt which attached a letter requesting that Hunt & Hunt provide them with a copy of the relevant correspondence or communication with Northern Beaches Council in which they agreed with the proposed second application and identifying in what respect the First Application was not properly determined by Northern Beaches Council. The letter also stated:

Gamble Law completed the letter by requesting a copy of the tree permit assessment report prepared by Northern Beaches Council and stating that “it is premature to seek enforcement of the deed”.

On 2 May 2023 at 2:36pm, Hunt & Hunt sent an email to Gamble Law. The email stated:

On 3 May 2023, Northern Beaches Council sent an email to Gamble Law confirming that Hunt & Hunt had raised a concern that the tree permit assessment report did not consider test 7 of the Removal of Tree test (set out in Appendix 16 of the Pittwater 21 Development Control Plan (DCP)). The email stated that while the Northern Beaches Council acknowledged that the tree assessment report did not specifically consider test 7, it made no admission that the Tree Permit Determination was invalid. The email confirmed that Northern Beaches Council had informed Hunt & Hunt that a fresh tree permit application may be lodged if they were unhappy with the conditions of the Tree Permit Determination.

On 19 May 2023, the Proberts commenced these proceedings against Mr Christie as executor of the estate of the Deceased and in his personal capacity by filing the summons.

On 22 May 2023, Hunt & Hunt sent a letter to Gamble Law which enclosed the summons commencing these proceedings and stating that the Proberts were prepared to discontinue these proceedings if the tree permit application (Annexure A to the summons) was signed by Mr Christie and returned by 5pm on 26 May 2023.

On 24 May 2023 at 4:03pm, Gamble Law sent an email to Hunt & Hunt confirming that Mr Christie would sign the second tree permit application “provided it is on the same terms as the first and proceedings 2023/160897 [being these proceedings] are discontinued with no order as to costs”. Gamble Law also requested that the second tree permit application should be amended to align with the First Application by deleting the words “and therefore removal is recommended in this instance” from the second tree permit application.

On 24 May 2023 at 4:18pm, Hunt & Hunt sent an email to Gamble Law attaching an amended second tree permit application.

On 24 May 2023, Mr Christie electronically signed the second tree permit application.

On 26 May 2023 at 12:35pm, Gamble Law sent an email to Hunt & Hunt which provided a copy of the second tree permit application electronically signed by Mr Christie using a Dropbox link. In that email, Gamble Law noted “[w]e look forward to receiving confirmation that proceedings 2023/160897 have been discontinued”.

On 2 June 2023 at 5:06pm, Hunt & Hunt sent an email to Northern Beaches Council, copied to Gamble Law, which attached the second tree permit application electronically signed by Mr Christie and physically signed by the Proberts (Second Application). The Second Application sought the “pruning/removal” of seven trees. The Second Application was a joint application of Mr Christie and the Proberts.

The email with the Second Application also attached a covering letter dated 2 June 2023 from Hunt & Hunt Lawyers to Northern Beaches Council. The covering letter stated:

Mr Christie was not provided with a copy of the covering letter at the time he signed the Second Application, was not informed that it would be sent, nor did he consent to the covering letter being provided to Northern Beaches Council. Mr Christie did not agree with a number of the matters contained in the covering letter, including the statement that “[r]emoval of the subject trees is the only option to avoid further conflict with the requirements of the Restriction on Use”.

On 5 June 2023, in response to the second application, Jessica Simpson (Legal Counsel at Northern Beaches Council) sent an email to other officers at Northern Beaches Council stating that she had received the second application, enclosing it and then commenting as follows:

On 9 June 2023 at 7:55am, Mr Christie sent an email to Northern Beaches Council which enclosed a letter to Northern Beaches Council requesting them to immediately withdraw the second application. The basis of Mr Christie withdrawing his consent was that he did not agree to the letter of 2 June 2023 being provided with the Second Application and that the Proberts had not discontinued these proceedings.

On 9 June 2023 at 10:55am, Northern Beaches Council sent an email to Gamble Law and Hunt & Hunt advising that Mr Christie had sought the immediate withdrawal of the second application. The email stated:

On 9 and 14 June 2023, Adam Kenndy-Hunt from Hunt & Hunt sought to contact Andrew Gamble of Gamble Law concerning Mr Christie’s decision to withdraw the Second Application but was unable to make contact with him.

On 14 June 2023, Hunt & Hunt sent an email to Gamble Law stating that in light of Mr Christie withdrawing his consent to the Second Application without any notice, they were instructed to press ahead with seeking enforcement of the Deed between the parties and proposed the adjournment of the 2022 proceedings until the outcome of these proceedings.

The parties made written submissions and oral submissions at the hearing and then made additional written submissions after the hearing.

The Proberts’ primary submission is that Mr Christie has failed to perform his obligations pursuant to the Deed, namely, to take all reasonable steps to give effect to the removal of the nine trees listed in cl 3.1.

Following Northern Beaches Council’s alleged incomplete consideration of the First Application and Mr Christie’s unilateral withdrawal of the Second Application, the Proberts contend that for Mr Christie to comply with his obligations under the Deed, a third application must be lodged with Northern Beaches Council for the removal of the seven remaining trees.

The Proberts’ submissions can be summarised as follows:

Mr Christie’s primary submission is that the Deed cannot be construed as imposing an obligation to do all things necessary to remove the nine trees listed in cl 3.1, but rather, makes provision for the lawful removal of the nine trees, subject to Northern Beaches Council’s consent.

The most significant point of divergence between the respective submissions arises in relation to an alleged further agreement. Whilst the Proberts solely rely on the Deed, Mr Christie submits that a further agreement emerged from the correspondence exchanged between 22 and 24 May 2023 containing terms that upon Mr Christie’s execution of the Second Application, the 2022 proceedings would be discontinued by the Proberts.

Mr Christie’s submissions can be summarised as follows:

The Proberts’ submissions in chief exclusively rely on the terms of the Deed. The Proberts submit that Mr Christie’s preparedness to join in the Second Application was merely evidence of Mr Christie fulfilling his obligations under cl 8 of the Deed which imposes a continuing obligation to carry out and give effect to the terms and intentions of the Deed.

In reply to the suggestion by Mr Christie that there was a further agreement formed by the communications on 22 and 24 May 2023, the Proberts submitted that if there was such a further agreement, then it is subject to an implied term that required the agreement to be given effect, which was for the Second Application to be considered by Northern Beaches Council. It was submitted that the Proberts performed that agreement and Mr Christie did not because he unilaterally withdrew the Second Application.

These reply submissions are reflected in the following exchange with Ms Foda during the hearing:

In their written submissions in reply, the Proberts contend that reliance cannot be placed on the covering letter to the Tree Permit Determination as in and of itself, it does not confer a statutory right of appeal. Further, it is submitted that little weight should be placed on Northern Beaches Council’s suggestion that a right of appeal is available given the relevant act and policy are incorrectly cited, and Northern Beaches Council failed to apply the correct criteria to the Tree Permit Determination.

The Proberts also submit that Mr Christie’s purposive construction of s 3.14(4) of the EPAA is misconstrued and extends beyond the clearly stated purpose of the legislation.

Finally, the Proberts suggest that the cases cited by Mr Christie bear no direct relevance to the facts at hand in that no issue of competency was raised, considered, or determined in relation to the right of appeal.

These proceedings turn on the proper construction of the Deed and, depending on the outcome of that analysis, the further agreement.

I will first deal with the Proberts’ claim to enforce the Deed.

The principles that govern the construction of written contracts are well established. The meaning of the words used in the contract are to be determined objectively, applying the standard of what a reasonable person would have understood them to mean. This approach is commonly known as the objective theory of contract: Western Australian Rugby Union v Australian Rugby Union Ltd [2017] NSWSC 1174, Hammerschlag J (as his Honour then was) at [36].

Perhaps most notably, the objective theory of contract was summarised in the unanimous decision of the High Court of Australia in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [40]:

The relevant principles of construction were also summarised by Bathurst CJ (with whom Macfarlan and Meagher JJA agreed) in Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [52]:

This approach was more recently restated in Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart (2019) 267 CLR 514; [2019] HCA 13, Kiefel CJ, Gageler, Nettle and Gordon JJ at [44], confirming the relevance of the language used by the parties, the surrounding circumstances, and the purposes and objects to be secured by the contract.

The principles of the construction of a contract were also relevantly stated in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, French CJ, Nettle and Gordon JJ at [46] and [48]:

However, in some instances (as is the case in these proceedings), recourse to the circumstances surrounding the contract may be necessary. Mount Bruce details the circumstances in which this necessity may arise at [49]:

In this regard, Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352; [1982] HCA 24 dictates that any extrinsic facts must be within the knowledge of both parties to the contract, functioning as an aid to construction.

While the court should endeavour to reach an interpretation which reads all terms of the contract harmoniously, if that is not possible then the court should prefer the construction that produces the least disharmony: HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342, Leeming JA at [182] (Bathurst CJ and Payne JA agreeing).

Further principles on the construction of contracts generally are also applicable. In Private Mortgages Australia Pty Limited ACN 600 628 813 as trustee for the PMA Trust v Stever [2019] NSWSC 462, Henry J at [37] summarised these in the following way:

The authorities also establish a principle of contractual construction that if the words of a contract are capable of being read in two ways, one of which is consistent with the law and the other is not, the former should be preferred. In Langley v Foster (1906) 4 CLR 167, Griffith CJ stated at 180–1:

The principle was further illustrated in Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279, where Mason P stated at [102]:

The principle from these authorities was applied by Darke J in Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltd [2021] NSWSC 504 at [81]-[85]. In the ultimate appeal in that case to the High Court of Australia in Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd [2023] HCA 6, Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ at [36] said that this principle does not need to be expressly stated or implied in the contract but can be found inherent in the words used in the context of the whole contract.

There is a species of express terms in contracts which are often labelled in modern day drafting as “further assurance” clauses. Such clauses have their historic context in the conveyance of old system title land to ensure that if any interests in the land were found to be outstanding after a conveyance of the land had been made, the conveyor would get that interest: see Handley v Gunner [2008] NSWCA 113, Campbell JA at [126] citing Partridge v Preddey (1904) 4 SR (NSW) 36 at 40. While each “further assurances” clause falls to be construed by means of the words used in their contractual context, in Fox Entertainment Precinct Pty Ltd v Centennial Park & Moore Park Trust [2004] NSWSC 214, Barrett JA at [195] said of the further assurance clause in that case:

In the summons and the cross-summons, both parties seek orders for specific performance of contractual obligations.

Specific performance is an equitable remedy requiring a contracting party to carry out one or more contractual obligations resting on that party: see Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467 at [564].

An order for specific performance is a discretionary remedy for the enforcement of contracts and may be granted in circumstances where:

Equity will not decree specific performance of a contract if the plaintiff has an adequate remedy at law.

Applying the analysis in Toll and Mount Bruce, it necessary to determine the context, purpose and objects of the Deed having regard to the words used in it which reference the Restriction on Use, the mediation between the parties (being the context in which the Deed arose), and the 2022 proceedings.

The context for the proper construction of the Deed is provided by these matters.

First, the Christie Property is subject to the Restriction on Use, the terms of which require the registered proprietor of it (the Deceased) to ensure that each “tree, shrub, flora or other form of plant life” in the designated parts of the Christie Property are kept below specified heights.

Second, the Proberts and Mr Christie fell into dispute over Mr Christie’s obligations as executor of the estate of the Deceased to adhere to the terms of the Restriction on Use, which led to the 2022 proceedings.

Third, in the 2022 proceedings the Proberts are seeking orders to enforce the Restriction on Use and Mr Christie is seeking orders to extinguish the Restriction on Use.

Fourth, the parties decided to attempt to settle the disputes over the Restriction on Use, which are the subject of the 2022 proceedings, by attending a mediation, which led to the Heads of Agreement and then the Deed.

In this context, the evident object and purpose of the Deed was to achieve a settlement of the disputes over the Restriction on Use which had been raised in the 2022 proceedings.

With these matters in mind, it is clear from the plain words of cl 3.1 of the Deed that the objective intention of the parties was to resolve the dispute over the Restriction on Use in the 2022 proceedings by having Mr Christie remove the nine identified trees on the Christie Property. They were not intended by the parties to be pruned, but removed.

By reference to what a reasonable person would have understood the words used to mean, and applying the principle from Laundy that the requirement of lawfulness of the obligation is inherent from the words used in their context, it is my view that cl 3.1 can be read in either of the following ways:

Both interpretations produce the same result. The Deed, as construed, renders the removal of the nine trees by Mr Christie in cl 3.1 as contingent on the lawful approval by Northern Beaches Council following the lodging of a tree removal application. The language used in cl 3.1 fails to place any absolute obligation on Mr Christie to remove all nine trees but is one which is conditioned by cll 4 and 6.2(a) in the manner outlined below.

To the extent that it matters, I consider cl 3.1 to be an obligation imposed on Mr Christie to remove the nine trees in accordance with a tree removal permit from Northern Beaches Council rather than a statement of intention as contended by Mr Christie.

But cl 3.1 does not impose an absolute obligation on Mr Christie to remove the nine identified trees. That is because cl 3.1 must be read harmoniously with cl 4, which is the obligation of the Proberts and Mr Christie to lodge a joint tree removal application with Northern Beaches Council for the removal of all nine trees identified in cl 3.1 pursuant to the SEPP BC, which was to be lodged by close of business on 23 December 2022, using the form at Annexure B to the Deed and attaching the documents listed at Annexure C to the Deed as well as the Deed itself. It is inherent from these words expressly referring to the operation of the legislative instrument that the parties intended that the removal of the nine trees must be in accordance with the law.

Clause 3.1 must also be read harmoniously with cl 6.2(a), which confirms the intention that the nine trees be removed lawfully. Clause 6.2(a) provides that Mr Christie’s removal of the nine trees listed in cl 3.1 follows the granting of a permit pursuant to the joint tree removal application to Northern Beaches Council. The removal of the nine trees after the permit grant was to be as soon as practicable and within 21 days of it.

But the obligation of removal on Mr Christie in cl 6.2(a) is conditioned by the “granting of a permit pursuant to the Permit Application”, so that Mr Christie was only obliged to remove such of the nine trees listed in clause 3.1 that Northern Beaches Council permitted him to remove. If the permit issued by Northern Beaches Council pursuant to the Permit Application only allowed for the removal of two of the trees listed in cl 3.1 (as was the case with the Tree Permit Determination), then under cl 6.2(a) Mr Christie was only obliged to remove those two trees and no more.

Clause 6.1(a) is also relevant to the obligation to remove lawfully the nine trees because the Proberts were obliged to consent to the filing of consent orders discontinuing the 2022 proceedings within 14 days of the removal of the trees in clause 6.2 (the reference to cl 2 is clearly a superficial drafting error). In my opinion, as the parties contemplated that the removal must be lawful, it would occur after the issuance of a permit by Northern Beaches Council which means that the discontinuance was to occur after the trees the subject of the permit had been removed. This means that once Mr Christie had removed the number of trees that Northern Beaches Council permitted him to remove in accordance with his obligation in cl 6.2(a), then the Proberts were required to consent to the filing of consent orders discontinuing the 2022 proceedings in accordance with their obligation in cl 6.1(a). Construing the obligation in cl 6.1(a) in this way achieves the object and purpose of the parties to bring a consensual end to the 2022 proceedings.

It is not in dispute that both parties complied with the requirements in cl 4 by lodging the First Application within time and in the form agreed. What is in dispute is whether the Deed deals with what was to occur on the outcome of the Tree Permit Determination.

In my opinion it does.

The parties contemplated what would happen if the Tree Permit Determination did not give approval for the removal of all nine trees. Clause 13 provided that if the “Permit Application” (which cl 1.1 of the Deed defined to be application to be lodged with Northern Beaches Council using the form in Annexure B, which cl 4 makes plain must be for all nine trees) had not been approved by 1 February 2023 then Mr Christie was to do all things necessary to consent to and permit the Proberts to appeal to the LEC. Clause 11.3 stated that any costs and disbursements of any appeal to the LEC pursuant to cl 13 are to be borne solely by the Proberts.

So it is abundantly clear that Mr Christie and the Proberts presumed as a matter of law that there could be an appeal to the LEC if the tree permit application was not approved in full for all nine trees, either because nothing had been issued by 1 February 2023, the application for the removal of all nine trees had been declined in full or the application for the removal of all nine trees had been approved in part and declined in part.

In my opinion, it matters not whether there was or was not a right of appeal to the LEC from the Tree Permit Determination because the Proberts did not purport to exercise that right whether it did exist or did not exist. If it did exist in law, the Proberts did not exercise the right that they had and which the terms of the Deed indicate that the parties presumed that they had. If it did not exist in law, then the parties were mistaken in their presumption as indicated by the terms of the Deed.

I do not find that it is necessary for me to decide whether the right to appeal the Tree Permit Determination to the LEC did or did not exist as a matter of law because that is a matter of statutory construction that should not be undertaken by me in circumstances where such a right is not sought to be exercised before me and no party to these proceedings has purported to exercise that right. It is merely a hypothetical question. As I will state in more detail below, in any event the subsequent events overtook the relevance of this question.

The Proberts contends that cl 3.1, read with cl 8 (the further assurances clause), required Mr Christie to do all things reasonably required to carry out and give effect to the terms and the intentions of the Deed, and that this obliged Mr Christie to cooperate with the Proberts in lodging a third tree removal application with Northern Beaches Council.

I reject this submission.

Clause 8 only operates to require the parties to do all things reasonably required to carry out and give effect to the terms and intentions of the Deed. The terms of the Deed required the lawful removal of all nine trees pursuant to a tree removal permit from Northern Beaches Council following a single joint tree removal application by the Proberts and Mr Christie, which was subject to any subsequent appeal to the LEC the Proberts might bring. Mr Christie was obliged to do the things reasonably required to make that single joint removal application in cl 4 and for the Proberts to appeal Northern Beaches Council’s decision to the LEC.

The relevant words in cl 8 obliged the Proberts and Mr Christie to each do all “acts, documents and things as may reasonably be required by any other party effectively to carry out and give effect to the terms and intentions of this deed” (my emphasis).

The objective intention of cl 8 is to impose an obligation on both parties to do all things reasonably required to carry out and give effect to the terms and intentions of the Deed (my emphasis). It acts to provide support to the terms and intentions expressed elsewhere in the Deed. Similarly to the observations in Fox Entertainment, it does not function to widen the obligations in cl 4 or impose any additional obligation to lodge multiple tree applications until Northern Beaches Council approval is obtained. To do so would extend the obligations beyond the scope of the express terms and intentions contained in the Deed. To infer an intention contrary would be to engage in the conduct warned against in Mount Bruce, namely, to contradict the plain meaning of cl 8. The common intention of the parties at the time of forming the agreement in the Deed does not appear to be one where multiple applications would be lodged to satisfy the obligations under the Deed.

Reading the Deed as a whole with all its constituent parts, cl 13 supports an interpretation that the actual intention of the parties was for one joint tree removal application to be lodged and one appeal to be lodged if the application was not successful. Clause 13 requires Mr Christie to do all things necessary to consent to, and permit the Proberts to appeal to the LEC. It is clear that cl 13 seeks to accommodate the circumstance in which the tree removal application is not approved.

As the Proberts did not purport to lodge an appeal to the LEC against the Tree Permit Determination, no issue arises under cl 8 in relation to the obligations imposed by cl 13 on Mr Christie.

Applying the considerations referred to in Private Mortgage, it is no part of the court’s role to remake or amend the terms of the Deed. The parties clearly intended that there would be one tree removal application, not multiple ones.

The obligation of the Proberts to consent to the discontinuance of the 2022 proceedings arose once there has been a lawful removal of the trees pursuant to the Tree Permit Determination. Only two of the trees were permitted to be lawfully removed.

Accordingly, I am of the view that Mr Christie is not in breach of any of the clauses of the Deed and the Proberts’ application to seek specific performance of the Deed must fail. I am also of the view that pursuant to cl 6.1(a) of the Deed, the Proberts are obliged to consent to the discontinuance of the 2022 proceedings because the two trees the subject of the Tree Removal Permit have been removed.

That discontinuance covers both the summons and the cross-summons in the 2022 proceedings because “Proceedings” as defined in cl 1.1 of the Deed covers the whole of the proceedings.

This leaves the parties in the position where the Proberts have failed on their claim to enforce the Deed and Mr Christie has succeeded on his claim to enforce the Deed.

Of course, the Restriction on Use remains in place and I say nothing about the future enforcement of it.

Mr Christie contends that a further agreement was reached to the effect that upon Mr Christie’s execution of the Second Application, the Proberts would discontinue the 2022 proceedings. As such, Mr Christie sought to enforce the further agreement.

But Mr Christie made it plain in his written submissions that if I was minded to dismiss the summons, which I am, “the issue of the agreement arising from the May Correspondence is otiose”.

As indicated in their submissions in reply, the Proberts did not rely on a further agreement and only relied on the terms of the Deed.

For these reasons, because the circumstances have arisen where neither party is urging me to make findings in relation to the further agreement, I cannot unilaterally consider the issues of the further agreement other than to observe that it did not relate to the discontinuance of the 2022 proceedings but to the discontinuance of these proceedings.

The parties are to attempt to agree on short minutes within seven days reflecting the outcome in these reasons.

I will deal with costs should it be necessary. I will stand the matter over to a convenient date for directions and for the parties to inform me as to any other issues that are required to be dealt with.