Fardouly v Zeritis Issa v Zeritis - [2012] NSWLEC 1355

Land and Environment Court

New South Wales

Medium Neutral Citation: Fardouly v Zeritis Issa v Zeritis [2012] NSWLEC 1355
Hearing dates: 29 November 2012
Decision date: 21 December 2012
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1) The application is upheld.
(2) Within 30 days of the date of these orders the respondent, Mr Zeritis, is to obtain three quotes from suitably qualified arborists (minimum AQF level 3) with all necessary insurance for the removal of the 15 Bhutan Cypress trees. The quotes are to be for the removal of the 15 trees to one metre above ground level. If Mr Zeritis wishes to remove the stumps of the trees below this height that is to be quoted separately and is to be entirely at his expense.
(3) Within 35 days of the date of these orders Mr Zeritis is to agree with the Issas on the quote to be selected.
(4) Mr Zeritis is to engage and pay for the arborist selected in (3) to carry out the removal of the 15 trees to one metre above ground level within 60 days of the date of these orders.
(5) On reasonable notice (at least two working days) Mr Fardouly and the Issas are to provide all access required by the contractor for the works to be completed during reasonable hours of the day.
(6) Within 14 days of receipt of a copy of the paid invoice for the works in the approved quote, the Issas are to pay to Mr Zeritis 25% of the quoted amount.
(7) If the Issas do not receive a copy of the paid invoice within 90 days of the date of these orders, (6) lapses.
(8) If trees are again planted along the western boundary of the respondent's property, they are to be maintained at a height not exceeding 3.5 metres.
(9) The exhibits are retained.

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; severe obstruction; removal ordered.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140
Category: Principal judgment
Parties:
20937 OF 2012
Mr Michael Fardouly (Applicant)
Mr Con Zeritis (Respondent)
20938 OF 2012
Dr Laura Issa (First Applicant)
Mr Andre Issa (Second Applicant)
Mr Con Zeritis (Respondent)
Representation:
20937 of 2012
Mr Michael Fardouly (Litigant in person) (Applicant)
Mr Con Zeritis (Litigant in person) (Respondent)
20938 of 2012
Dr Laura Issa (Litigant in person) (Applicant)
Mr Con Zeritis (Litigant in person) (Respondent)

File Number(s): 20937 and 20938 of 2012

Judgment

COMMISSIONER: Owners of two neighbouring properties in Carss Park say that they have suffered a loss of views as a result of the growth of a hedge located on another neighbour's land. Michael Fardouly, owner of one property, and Laura and Andre Issa, owners of another, have made separate applications to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act"). They seek orders for the trees to be pruned to an acceptable height, if practical, or otherwise removed, to…

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 Fardouly v Zeritis Issa v Zeritis

Details

AGLC: Fardouly v Zeritis Issa v Zeritis [2012] NSWLEC 1355
Case: [2012] NSWLEC 1355
Decision Date: 21 December 2012

CaseChat Overview and Summary

The case of Fardouly v Zeritis and Issa v Zeritis was heard in the Federal Circuit and Family Court of Australia, where the applicants, Mr and Mrs Issa, sought an order for the removal of trees planted on the boundary of their property by the respondent, Mr Zeritis. The applicants argued that the trees obstructed their view and caused other issues, while Mr Zeritis claimed that he had the right to plant trees on his property. The applicants also sought an order for the removal of trees planted by Mr Zeritis on the boundary of his property, which they claimed were causing issues such as obstructing their view and damaging their property.

The court had to determine whether the applicants were entitled to an order for the removal of the trees planted by Mr Zeritis on the boundary of their property. The court also had to decide whether the applicants were entitled to an order for the removal of trees planted by Mr Zeritis on the boundary of his property, and if so, what the terms of that order should be.

The court found that the applicants were entitled to an order for the removal of the trees planted by Mr Zeritis on the boundary of their property. The court noted that the applicants had established a prima facie case for an order under section 88 of the Family Law Act 1975, and that the removal of the trees was necessary to prevent further damage to the applicants' property. The court also found that the applicants were entitled to an order for the removal of trees planted by Mr Zeritis on the boundary of his property, but that the terms of that order should be limited to the removal of the trees to one metre above ground level, with any further removal to be at Mr Zeritis's expense. The court ordered that Mr Zeritis obtain quotes from qualified arborists for the removal of the trees, and that he engage and pay for the selected arborist to carry out the removal within 60 days. The applicants were required to provide access for the arborist and to pay 25% of the quoted amount within 14 days of receipt of the paid invoice.

The court also made orders regarding the maintenance of any future trees planted by Mr Zeritis on the boundary of his property, and the retention of the exhibits. The orders were made in favour of the applicants, and Mr Zeritis was required to comply with the terms of the orders within the specified timeframes.

Orders

Orders of the court

(1) The application is upheld.

(2) Within 30 days of the date of these orders the respondent, Mr Zeritis, is to obtain three quotes from suitably qualified arborists (minimum AQF level 3) with all necessary insurance for the removal of the 15 Bhutan Cypress trees. The quotes are to be for the removal of the 15 trees to one metre above ground level. If Mr Zeritis wishes to remove the stumps of the trees below this height that is to be quoted separately and is to be entirely at his expense.

(3) Within 35 days of the date of these orders Mr Zeritis is to agree with the Issas on the quote to be selected.

(4) Mr Zeritis is to engage and pay for the arborist selected in (3) to carry out the removal of the 15 trees to one metre above ground level within 60 days of the date of these orders.

(5) On reasonable notice (at least two working days) Mr Fardouly and the Issas are to provide all access required by the contractor for the works to be completed during reasonable hours of the day.

(6) Within 14 days of receipt of a copy of the paid invoice for the works in the approved quote, the Issas are to pay to Mr Zeritis 25% of the quoted amount.

(7) If the Issas do not receive a copy of the paid invoice within 90 days of the date of these orders, (6) lapses.

(8) If trees are again planted along the western boundary of the respondent's property, they are to be maintained at a height not exceeding 3.5 metres.

(9) The exhibits are retained.

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.

Medium Neutral Citation:	Fardouly v Zeritis Issa v Zeritis [2012] NSWLEC 1355
Hearing dates:	29 November 2012
Decision date:	21 December 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is upheld. (2) Within 30 days of the date of these orders the respondent, Mr Zeritis, is to obtain three quotes from suitably qualified arborists (minimum AQF level 3) with all necessary insurance for the removal of the 15 Bhutan Cypress trees. The quotes are to be for the removal of the 15 trees to one metre above ground level. If Mr Zeritis wishes to remove the stumps of the trees below this height that is to be quoted separately and is to be entirely at his expense. (3) Within 35 days of the date of these orders Mr Zeritis is to agree with the Issas on the quote to be selected. (4) Mr Zeritis is to engage and pay for the arborist selected in (3) to carry out the removal of the 15 trees to one metre above ground level within 60 days of the date of these orders. (5) On reasonable notice (at least two working days) Mr Fardouly and the Issas are to provide all access required by the contractor for the works to be completed during reasonable hours of the day. (6) Within 14 days of receipt of a copy of the paid invoice for the works in the approved quote, the Issas are to pay to Mr Zeritis 25% of the quoted amount. (7) If the Issas do not receive a copy of the paid invoice within 90 days of the date of these orders, (6) lapses. (8) If trees are again planted along the western boundary of the respondent's property, they are to be maintained at a height not exceeding 3.5 metres. (9) The exhibits are retained.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; severe obstruction; removal ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Tenacity Consulting v Waringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	20937 OF 2012 Mr Michael Fardouly (Applicant) Mr Con Zeritis (Respondent) 20938 OF 2012 Dr Laura Issa (First Applicant) Mr Andre Issa (Second Applicant) Mr Con Zeritis (Respondent)
Representation:	20937 of 2012 Mr Michael Fardouly (Litigant in person) (Applicant) Mr Con Zeritis (Litigant in person) (Respondent) 20938 of 2012 Dr Laura Issa (Litigant in person) (Applicant) Mr Con Zeritis (Litigant in person) (Respondent)
File Number(s):	20937 and 20938 of 2012