District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Donnelly v Hunter’s Hill Council [2020] NSWDC 76 Hearing dates: 3-6 February 2020; 20 March 2020 Date of orders: 01 April 2020 Decision date: 01 April 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $35,470.33.
(2) The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court.
(3) Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.Catchwords: Torts – private nuisance – large camphor laurel tree located on the defendant council’s land – alleged damage to the plaintiff's front fence, gate structures and front paving – whether elements of private nuisance have been established – extent of damages suffered – whether injunction should be ordered – form of injunctive relief appropriate
Jurisdiction – jurisdiction of District Court to grant ancillary injunctive reliefLegislation Cited: District Court Act 1973 (NSW)
Local Government Act 1993 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)Cases Cited: Care Park Pty Ltd v Universal One Communication Pty Ltd [2019] NSWSC 1405
Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 (Court of Appeal)
Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683
Hargrave v Goldman (1963) 110 CLR 40
Kraemers v Attorney-General for Tasmania [1966] Tas St Rep 15
Lawrence v Fen Tigers Ltd [2014] AC 822
Malliate v Sharpe [2001] NSWSC 1057
Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169
Michos v Council of the City of Botany Bay [2012] NSWSC 625
Morgan v Khyatt [1964] 1 WLR 475
Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Semple v Wilson [2018] NZHC 992
Torette House Pty Ltd v Berkman (1940) 62 CLR 637
Valherie v Strata Corp No 1841 [2004] SASC 170
Young v Wheeler (1987) Aust Torts Reports 80-126Category: Principal judgment Parties: Peter Edward Donnelly (Plaintiff)
Hunter's Hill Council (Defendant)Representation: Counsel:
Solicitors:
B C Kasep (Plaintiff)
D Kelly (Defendant)
Pikes & Verekers Lawyers (Plaintiff)
Gillis Delaney Lawyers (Defendant)
File Number(s): 2019/00078124
Judgment
-
In these proceedings, the plaintiff, Dr Peter Donnelly, brings a claim against the defendant, Hunter’s Hill Council, in the tort of nuisance seeking damages and related injunctive relief. The proceedings relate to a large camphor laurel tree which is growing on the nature strip owned by the defendant council immediately in front of the plaintiff's house in Futuna Street, Hunters Hill in Sydney. The plaintiff asserts that the roots of the camphor laurel tree are pushing against the front sandstone fence and gate of his property, causing the fence and gate to be forced out of alignment and other roots have raised pavers in the front…
Keep reading for free
Create a free CaseChat account to read Donnelly v Hunter's Hill Council 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] NSWDC 76
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the elements of private nuisance had been established and to what extent the plaintiff had suffered damages. It was also necessary to determine whether an injunction should be ordered and, if so, what form of injunctive relief was appropriate. Additionally, the court needed to consider the jurisdictional limits of the District Court in granting ancillary injunctive relief.
The court found that the elements of private nuisance were established, as the evidence demonstrated that the tree on the council's land had indeed caused the damage to the plaintiff's property. The court assessed the extent of the damages and awarded the plaintiff $35,470.33 in damages. The court also found that an injunction was necessary to prevent further harm and ordered the defendant council to take appropriate measures to address the issue. Regarding the jurisdictional matter, the court determined that it had the authority to grant the injunctive relief sought by the plaintiff.
The court ordered judgment for the plaintiff in the sum of $35,470.33, directed the parties to bring in short minutes of order within 14 days to reflect the reasons of the court, and granted liberty to the parties to approach the Associate to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.
Orders
Orders of the court
(1) Judgment for the plaintiff in the sum of $35,470.33.
(2) The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court.
(3) Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.
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.