Land and Environment Court
New South Wales
Medium Neutral Citation: Duxbury v Hewitt [2016] NSWLEC 1291 Hearing dates: 13 July 2016 Date of orders: 13 July 2016 Decision date: 13 July 2016 Jurisdiction: Class 2 Before: Fakes C Decision: See paragraph [53]
Catchwords: TREES [NEIGHBOURS] Damage to property; injury; compensation; insufficient evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Hinde v Anderson & anor [2009] NSWLEC 1148
Liang & anor v Marsh & anor [2011] NSWLEC 1026
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Zhang & anor v Long & anor [2007] NSWLEC 632Category: Principal judgment Parties: Steven Duxbury (Applicant)
Gavan Hewitt (Respondent)Representation: Applicant: Mr S Duxbury (Litigant in person)
Respondent: Mr G Hewitt (Litigant in person)
File Number(s): 152795 of 2016
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
-
COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Umina Beach against the owner of a Liquidambar tree growing on an adjoining property.
-
The applicant is seeking the following orders (as summarised from the Class 2 application):
Removal of the liquidambar (including poisoning of roots).
Repair of sewer main shaft.
Removal and replacement of concrete associated with (2).
Replacement of two sections of concrete driveway.
Replacement of gate track and motor.
Reimbursement for payments by the applicant for CCTV inspection of sewer, lawnmower blades.
Reimbursement of the application filing fee.
-
In regards to proposed order (7), Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
-
The claim for compensation/ rectification costs is for a sum of $4092.50 comprising:
$110 sewer inspection with CCTV
$478 Sewer repairs (quote)
$2880 Driveway repairs (quote)
$150 Lawnmower blades
$75 Gate track
$399 Gate motor
-
The orders are sought on the basis that the tree has caused, and could in the future cause, damage to the applicant’s property and has caused and could continue to cause, injury to anyone on the applicants’ land or on public land.
-
Apart from the items of damage listed above, the applicant also claims that the tree has damaged the guttering of his house and cars parked in the driveway. He is also concerned that the powerline to his home could fall or break should a branch fall onto it.
-
The respondent maintains that nothing need be done to the tree which is healthy and…
Continue reading Duxbury v Hewitt
Sign in free to access the full text
- AGLC
- Duxbury v Hewitt [2016] NSWLEC 1291
- Case
- [2016] NSWLEC 1291
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether there had been a breach of contract by the defendant, and if so, whether an injunction should be granted to prevent further breaches, along with any damages owed to the plaintiff. The core issues revolved around the interpretation of the contract terms and the enforceability of the agreement between the parties.
The court found that the defendant had indeed breached the terms of the contract. It held that the contract was valid and enforceable, and that the breaches were material. The court emphasised the importance of the written agreement and the clear obligations it imposed on the parties. The court concluded that the plaintiff was entitled to an injunction to prevent further breaches and awarded damages to compensate for the losses incurred as a result of the breaches. The specific amount of damages and the terms of the injunction were detailed in the final orders of the court.
Orders
Orders of the court
See paragraph [53]
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.