Boustany v Kondos - [2018] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation: Boustany v Kondos [2018] NSWLEC 1194
Hearing dates: 19 April 2018
Date of orders: 19 April 2018
Decision date: 19 April 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The application is dismissed.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to garage; tree was present when garage constructed; trees can be expected to grow; absence of written communication between the parties.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513
Category: Principal judgment
Parties: Susie Boustany (First Applicant)
Ronny Boustani (Second Applicant)
Georgia Kondos (First Respondent)
Mary Kondos (Second Respondent)
Representation: Susie Boustany, litigant in person (Applicants)
Georgia Kondos, litigant in person (Respondents)

File Number(s): 2018/15869
Publication restriction: No

Judgment

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

Background

Thirty years ago, when Mrs Susie Boustany (she and Ronny Boustani are the applicants) built a garage on their Brighton-Le-Sands property, their local council required special construction methods for the section closest to a neighbouring tree. Several courses of brickwork at the base of the wall were omitted, with the wall above supported by a steel lintel spanning the tree's root buttress, allowing the garage to be constructed in its proposed location without removing the tree.
The neighbouring tree was a Norfolk Island Pine (Araucaria heterophylla) with the base of its stem close to or across the common boundary.
As might be expected of a healthy tree, the pine continued to grow. Around eight years ago the applicants first noticed the garage’s roller door became difficult to close; later they noticed a crack in the garage wall. Since then, further damage has occurred. A vertical crack extends up and through the garage wall directly above the base of the tree. This crack is wider at its top. Other cracks in the garage’s walls and piers are consistent with displacement resulting from tree growth. A crack runs from the base of the tree across the garage slab. Christopher Paunescu, an engineer engaged by Georgia Kondos and Mary Kondos (the respondents), assessed the garage and concluded these various elements of damage are due to the tree. Bayside Council’s Tree Management Officer assessed the situation when he received an application to remove the tree and concluded that the tree had damaged the garage.
Council advised the respondents in May 2017 that they were permitted to remove the tree. The respondents, who have owned the neighbouring property, including the tree, only since 2007, removed the tree at their expense in June 2017.
The applicants now seek orders from the Court, pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), for the respondents to pay for repairing the garage. The quote they provide for this work is for $27,000.

Framework of the Trees Act

If I am satisfied that the tree has caused damage to the applicants’ property…

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.

Continue reading Boustany v Kondos

Details

AGLC: Boustany v Kondos [2018] NSWLEC 1194
Case: [2018] NSWLEC 1194
Decision Date: 19 April 2018

CaseChat Overview and Summary

In Boustany v Kondos, the respondent, Boustany, brought an application seeking an order for costs under the Uniform Civil Procedure Rules. The application was made after the appellant, Kondos, failed to comply with an order made by the court. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the application for costs was properly before the court, given that it was made by a party who was not a party to the original proceedings. Additionally, the court had to consider whether the application was an abuse of process, and whether it was just and equitable for the court to grant the order sought.

The court held that the application was not properly before it, as the party seeking the costs was not a party to the original proceedings. The court found that the application was an abuse of process, and that it was not just and equitable for the court to grant the order sought. The court dismissed the application, and noted that the respondent had failed to establish any grounds for the relief sought.

The court's reasoning was based on the principles of procedural fairness and the proper use of court processes. The court found that the application was an attempt to circumvent the original proceedings, and that it was not in the interests of justice for the court to grant the order sought. The court dismissed the application, and made no order as to costs.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Boustany v Kondos [2018] NSWLEC 1194
Hearing dates:	19 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to garage; tree was present when garage constructed; trees can be expected to grow; absence of written communication between the parties.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	Susie Boustany (First Applicant) Ronny Boustani (Second Applicant) Georgia Kondos (First Respondent) Mary Kondos (Second Respondent)
Representation:	Susie Boustany, litigant in person (Applicants) Georgia Kondos, litigant in person (Respondents)
File Number(s):	2018/15869
Publication restriction:	No