Cincotta v Huang & ors

[2011] NSWLEC 1086

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cincotta v Huang and ors [2011] NSWLEC 1086

Hearing dates:

8 April 2011

Decision date:

08 April 2011

Jurisdiction:

Class 2

Before:

Moore SC, Fakes C

Decision:

1.The application to remove the tree is dismissed;

2.The application for compensation of an amount of $162 for repairs to a fence is dismissed;

3.The second and third respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance to remove the three branches indicated by red bars on the photograph included in these orders as Annexure A;

4.These branches are to be removed to the point at which they arise from the relevant stem in accordance with AS4373:2007.

5.The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry ;

6.The work is to be completed by 14 July 2011;

7.The first respondent is to reimburse the second and third respondents the cost of the branch removal within 28 days of the service on him of a receipted tax invoice for the completed works;

8.The applicant is to engage a licensed roofer or builder to undertake the repairs to the roof and flashing of his garage;

9.The first respondent is to reimburse the applicant a maximum of $748 for the roof repairs within 28 days of service on him of a receipted tax invoice for the completed works; and

10.The roof repairs are to be completed and a receipted invoice for the completed works is to be served on the first respondent by 15 November 2011 otherwise order (9) lapses.

Catchwords:

Trees (neighbours); damage to property; failure of service of one proposed respondent; tree property sale settling after service of tree dispute claim; conduct of first respondent in failing to disclose claim; leave to cross-claim granted to new owners (second and third respondents); reimbursement ordered to applicant for repairs to be carried out; pruning of dead wood ordered to be undertaken by second and third respondents; costs of reimbursement of applicant and pruning costs of second and third respondents to be paid by first respondent.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005

Category:

Principal judgment

Parties:

N Cincotta (Applicant)
G Huang (First respondent and cross-respondent)
S Huang (Second respondent and first cross-claimant)
Y Lui (Third respondent and second cross-claimant)

Representation:

Applicant in person
First respondent in person
Mr Dai, solicitor
(Second and Third respondents)

File Number(s):

20950 of 2010

Judgment

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

1.   This dispute concerns a claim made under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). It is one that is, for disputes of this nature, of a little procedural complexity involving matters dealing with the failure of service of the originating process on one proposed respondent and with a cross-claim between respondents.

2.   The difficulties with respect to service arise out of…