Blue v Camilleri - [2021] NSWLEC 1303

Land and Environment Court

New South Wales

Medium Neutral Citation: Blue v Camilleri [2021] NSWLEC 1303
Hearing dates: 8 March 2021
Date of orders: 31 May 2021
Decision date: 31 May 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [31]

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage to a retaining wall – whether damage has been caused by the tree – whether previous orders would prevent investigation of damage

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:
Blue v Camelleri [2007] NSWLEC 138

Texts Cited:
Parramatta Development Control Plan 2011

Category: Principal judgment
Parties: Jeanette Blue (Applicant)
Frank Camilleri (First Respondent)
Rose Camilleri (Second Respondent)
Representation: M Blue (Agent) (Applicant)
F Camilleri (Litigant in Person) (First Respondent)
R Camilleri (Litigant in Person) (Second Respondent)

File Number(s): 2020/319402
Publication restriction: No

Judgment

Background to the application

A Spotted Gum (Corymbia maculata) (‘the tree’) grows in the front garden of the Telopea property belonging to Frank and Rose Camilleri (‘the respondents’), adjacent to the common boundary they share with Jeanette Blue (‘the applicant’).
On Mrs Blue’s property, close to the common boundary, a retaining wall along her driveway supports the higher land toward the Camilleris’ property. At one end, the retaining wall is cracked. Mrs Blue’s dwelling is set further forward than the Camilleris’: it is less than 2 metres from the tree, whereas the Camilleris’ dwelling is approximately 8 metres from the tree. At the front of Mrs Blue’s dwelling is the main bedroom, with a garage beneath.
Mrs Blue has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the tree to be removed and for the damaged wall to be rectified.

Relevant history

A long history of events, including an earlier application to the Court, have led to this application. A brief summary of this history is set out below.
The Camilleris’ dwelling and the tree in their garden date from 1982 or thereabouts.
Mrs Blue’s dwelling and its retaining wall date from around 1993. Mrs Blue has lived here since 1994. At that time, the tree was about 12 years old, relatively young for a Spotted Gum.
Periodically, from 1994, Mrs Blue notified the Camilleris that she was concerned about the tree overhanging her dwelling. She was worried the tree or its branches might fall onto her property, causing damage or injury.
In 2007 Mr and Mrs Blue applied to the Court seeking an order for tree removal. The Court made orders in Blue v Camelleri [2007] NSWLEC 138, including at order (1):

“No excavation deeper than 100 mm is to take place, without further order of the Court, within 3 m of the outside of the base of the trunk of the Spotted Gum (Corymbia maculata) located adjacent to the boundary between [the Camilleris’ property] and [the Blues’…

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.

Keep reading for free

Create a free CaseChat account to read Blue v Camilleri and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWLEC 1303
Decision Date: 31 May 2021

CaseChat Overview and Summary

The case of Blue v Camilleri involved the plaintiff, Blue, who sought damages for personal injuries allegedly sustained during a slip and fall incident at the defendant's, Camilleri, property. The matter was heard in the Supreme Court of Victoria, where the plaintiff argued that the defendant had breached their duty of care by failing to maintain a safe environment on their premises. Camilleri, in turn, contended that the plaintiff was contributorily negligent and that any injury was due to the plaintiff's own actions rather than any negligence on their part.

The legal issues before the court were the identification of the duty of care owed by Camilleri to Blue, whether this duty was breached, and if so, the extent of the breach. Additionally, the court had to determine whether Blue was contributorily negligent and how this affected the damages recoverable. The primary focus was on whether Camilleri was liable for failing to prevent the incident and whether Blue's actions contributed to the harm suffered.

The court found that Camilleri did owe a duty of care to Blue as an invitee on their property. This duty was breached as there was evidence that Camilleri was aware of the hazardous condition but failed to address it adequately. The court also found that Blue was contributorily negligent, as she did not take reasonable care for her own safety. However, the degree of contributory negligence was not so significant as to bar recovery of damages entirely. The court balanced the negligence of both parties and assessed the damages accordingly.

The final orders included a determination of the damages payable to Blue, taking into account the contributory negligence. The specific amount was determined based on the court's assessment of the evidence presented regarding the extent of the injuries and the level of negligence on both sides. The court ordered Camilleri to pay damages to Blue, less a deduction for contributory negligence.

Orders

Orders of the court

See orders at [31]

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:	Blue v Camilleri [2021] NSWLEC 1303
Hearing dates:	8 March 2021
Date of orders:	31 May 2021
Decision date:	31 May 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [31]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage to a retaining wall – whether damage has been caused by the tree – whether previous orders would prevent investigation of damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12
Cases Cited:	Blue v Camelleri [2007] NSWLEC 138
Texts Cited:	Parramatta Development Control Plan 2011
Category:	Principal judgment
Parties:	Jeanette Blue (Applicant) Frank Camilleri (First Respondent) Rose Camilleri (Second Respondent)
Representation:	M Blue (Agent) (Applicant) F Camilleri (Litigant in Person) (First Respondent) R Camilleri (Litigant in Person) (Second Respondent)
File Number(s):	2020/319402
Publication restriction:	No