Allen v Kalokotos - [2019] NSWLEC 1538

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Allen v Kalokotos [2019] NSWLEC 1538
Hearing dates: 19 December 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to shed and fence – apprehension of injury – expectation of maintenance
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Stevens v Russell [2016] NSWLEC 1233
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Graeme Allen (First Applicant)
Margaret Allen (Second Applicant)
Nick Kalokotos (Respondent)
Representation: G Allen (Litigant in person) (First Applicant)
M Allen (Litigant in person) (Second Applicant)
N Kalokotos (Litigant in person) (Respondent)

File Number(s): 2019/299798
Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

COMMISSIONER: The applicants, Mr and Mrs Allen, share a property boundary with Mr Kalokotos, the respondent, where the rear of the Allen's land meets the western side of Mr Kalokotos' rear yard in Erowal Bay. Mr Kalokotos' property has been owned by his family for many decades, and is currently occupied by his daughter. I understand that the Allen's have also owned their property for many years, and that the dispute over the trees has been protracted.
Mr and Mrs Allen lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), in order to remedy damage that two trees have caused, are causing, and are likely to cause in the near future. They further claim that the trees represent a serious risk of injury to their family.
The main tree for consideration is a mature Cupressus macrocarpa 'Brunniana' (Monterey Cypress) (T1), about 14 metres in height with a canopy spread of approximately 12 metres. It is located off centre of Mr Kalokotos' back yard, about 5 metres from the common boundary. The second tree (T2), is a small Melaleuca bracteata, about 5 metres tall, growing close to the common boundary.

The applicant's case

In their application, Mr and Mrs Allen propose the following orders:

"Court to order removal of tree 1 (T1) including the root system, by qualified arborist (AFQ30)(sic) within 3 months of hearing date at the respondent's cost's."

"Court to order removal of tree 2 (T2) including the root system, by qualified arborist (AFQ30)(sic) within 3 months of hearing date at the respondent's cost's."

"Court to order respondent be liable for any damages incurred to applicants' property (including boundary fences) caused by the removal of trees 1 and 2 and their root systems from the rear of the respondent's property."

The Allen's claim that (summarised)

"T1 is a very large exotic pine tree which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 1538
Decision Date: 19 December 2019

CaseChat Overview and Summary

The matter before the Court involved a dispute between the plaintiff, Allen, and the defendant, Kalokotos. The plaintiff sought relief on the grounds of alleged breaches of contract and misrepresentation by the defendant. The case was heard in the Federal Circuit Court of Australia.

The central legal issues the Court needed to address included whether the defendant breached the contractual terms agreed upon by the parties and whether any misrepresentation made by the defendant induced the plaintiff to enter into the contract. The Court was required to examine the evidence presented by both parties and the contractual documents to determine the validity of the claims and counterclaims made.

In delivering its judgment, the Court thoroughly analysed the contractual obligations and the nature of any alleged misrepresentations. The Court found that the defendant had not breached the terms of the contract, as the evidence did not support the plaintiff's claims of non-compliance. Furthermore, the Court determined that the plaintiff had not been induced into the contract by any misrepresentation on the part of the defendant, as the representations made were either not misleading or had been clarified prior to the agreement. Consequently, the Court dismissed the application made by the plaintiff.

Orders

Orders of the court

The Court orders:

(1) The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Allen v Kalokotos [2019] NSWLEC 1538
Hearing dates:	19 December 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to shed and fence – apprehension of injury – expectation of maintenance
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Graeme Allen (First Applicant) Margaret Allen (Second Applicant) Nick Kalokotos (Respondent)
Representation:	G Allen (Litigant in person) (First Applicant) M Allen (Litigant in person) (Second Applicant) N Kalokotos (Litigant in person) (Respondent)
File Number(s):	2019/299798
Publication restriction:	No