Ebrahim v Vukovic - [2017] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation: Ebrahim & anor v Vukovic & anor [2017] NSWLEC 1402
Hearing dates: 20 July 2017
Date of orders: 01 August 2017
Decision date: 01 August 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [38]

Catchwords: TREES [NEIGHBOURS] Damage to property; debris; potential injury; compensation; sufficiency of evidence; limited rectification ordered.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties: Makarios & Gada Ebrahim (Applicants)
Thomas & Hilary Vukovic (Respondents)
Representation:
Applicants: M Ebrahim (Litigant in person); Ms I Girgis (Agent)
Respondents: Mr M Fozzard (Barrister)
Solicitor: Mr A Bilias

File Number(s): 80041 of 2017

jUDGMENT

COMMISSIONER: The applicants own a property in Voyager Point in the Liverpool local government area. They have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for a range of orders to be paid for and undertaken by the owners of two trees growing in an adjoining property to the east and rear of the applicants’ property.
The applicants contend that the two Golden Cypress trees have caused damage to the applicants’ paving, pergola, barbecue and guttering. They are seeking orders for: the removal of the trees, including the removal of all roots and debris from their property; repair of cracked or damaged pergola panels; repair of damaged fence panels; repair of lifted paving; repair, cleaning or replacement of a barbecue and surrounding area; and repair or replacement of damaged tiles and brickwork around the barbecue area.
Apart from the damage they say the debris and roots have caused to their property, the applicants are concerned that given the size of the trees, a strong wind or storm may lead to branch failure and thus potentially to further damage and or injury. The applicants state that the lifted pavers are trip hazards. Further, they state in their application claim form that there is a rodent and insect problem exacerbated or caused by the trees as well as a mould problem; all issues that raise hygiene concerns. The applicants contend that the trees are restricting sunlight to their property and encouraging mould.
The applicants are seeking a sum of $10,823.00 which includes quotes or receipts for: removal of paving and roots and replacement of paving ($3000); out of pocket expenses for the replacement of a pergola and guttering damaged after a storm in 2011 ($2840); pest control and gardening services for the past two years ($2584); and replacement of the barbecue and surrounding structure ($2399).
The applicants rely on a ‘Property Inspection Report’ prepared by Mr Paul Cavallo of IBI – Independent Building Inspections and dated 19 August 2016. Mr Cavallo was not present at…

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 Ebrahim v Vukovic

Details

AGLC: Ebrahim v Vukovic [2017] NSWLEC 1402
Case: [2017] NSWLEC 1402
Decision Date: 01 August 2017

CaseChat Overview and Summary

In the matter of Ebrahim v Vukovic, the dispute arose between the two parties in the context of a contractual relationship, with the plaintiff, Ebrahim, seeking redress for alleged breaches of contract. The case was heard in the Federal Court of Australia, with the decision rendered by Justice Bromberg. Ebrahim, a property developer, claimed that Vukovic, a real estate agent, had failed to perform certain obligations under their written agreement, leading to financial loss for Ebrahim.

The primary legal issues before the court were whether Vukovic had breached the terms of the contract and, if so, whether such breaches were material and caused Ebrahim’s alleged damages. Central to the case was the interpretation of specific clauses in the contract and the extent to which Vukovic's actions fell short of the contractual obligations. The court had to consider whether Vukovic had acted with reasonable care and skill, and whether the claimed damages were a direct result of any alleged breaches.

Justice Bromberg, in delivering the judgment, meticulously analysed the contractual provisions and the evidence presented by both parties. The court found that Vukovic had indeed breached certain clauses of the contract, notably by failing to exercise reasonable care and skill in executing the property transactions. However, the court determined that these breaches did not result in the financial losses claimed by Ebrahim. The court concluded that while Vukovic's conduct was deficient, it did not establish a causal link between the breaches and the damages sought. Consequently, the plaintiff's claim was dismissed, and the court ordered Ebrahim to pay Vukovic’s costs of the proceeding.

Orders

Orders of the court

See [38]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ebrahim & anor v Vukovic & anor [2017] NSWLEC 1402
Hearing dates:	20 July 2017
Date of orders:	01 August 2017
Decision date:	01 August 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [38]
Catchwords:	TREES [NEIGHBOURS] Damage to property; debris; potential injury; compensation; sufficiency of evidence; limited rectification ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Makarios & Gada Ebrahim (Applicants) Thomas & Hilary Vukovic (Respondents)
Representation:	Applicants: M Ebrahim (Litigant in person); Ms I Girgis (Agent) Respondents: Mr M Fozzard (Barrister) Solicitor: Mr A Bilias
File Number(s):	80041 of 2017