ZORBAWON v OSWALD

This was an Application for permission to appeal a decision of a Chambers Judge dismissing an Originating Application. The Applicant disputed poplar trees grown by his neighbour near the fence separating their property lines.

The Court of Appeal summarized that, to grant permission to appeal under Rule 14.5(1)(g), the Court must be satisfied that 1) an Appeal would have a reasonable prospect of success; and 2) there is an issue of law or jurisdiction of importance to the public.

Justice Feehan held that the test was not met and dismissed the Application.

On the first branch of the test, the Appeal had no reasonable prospect of success. If permission to appeal were granted, the issues would be whether the hearing was fair and whether the Chambers Judge's decision was reasonable. The Court of Appeal found that the Chambers Judge was alive to the issues at hand and made a reasonable determination to dismiss the Application given the lack of evidence of the damages asserted.

On the second branch of the test, the Appeal would not raise a novel issue of law. Justice Feehan stated that the law on how neighbours can address property line disputes is well established.