Land and Environment Court
New South Wales
Medium Neutral Citation: Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150 Hearing dates: 13 March 2019 Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW), respondents 1–5 listed on the application (P Richter, V Richter, J Baker, S Scott and R Jopling) are removed as parties to this matter, leaving The Owners – Strata Plan No 15039 as the only respondents.
(2) The application is refused.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – sewer – Part 2A application – whether the trees form a hedge – severity of sunlight obstruction – severity of view obstruction – whether views and sunlight were previously available to the applicant Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Coleman & anor v Leddy & anor [2013] NSWLEC 1094
Holland v Bell [2017] NSWLEC 1322
Johnson v Angus [2012] NSWLEC 192
Lord v Grech; Brooke v Grech [2015] NSWLEC 1190
McDougall v Philip [2011] NSWLEC 1280
Price & anor v Harrison & anor [2013] NSWLEC 1149
Summers v Kumar [2019] NSWLEC 1041
Wisdom v Payn [2011] NSWLEC 1012Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Category: Principal judgment Parties: Mark Fryday (Applicant)
The Owners – Strata Plan No 15039 (Respondents)Representation: M Fryday, litigant in person (Applicant)
P Richter, agent (Respondents)
File Number(s): 2018/307449 Publication restriction: No
Judgment
The application
-
Next to Mark Fryday’s Fairlight property, a row of tall, slender cypress trees grows alongside a neighbouring driveway. Mr Fryday has applied to the Court seeking orders for sewer pipe repairs and tree pruning, pursuant to both s 7 (Part 2) and s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’).
-
The application was initially made against individual owners of dwellings on the neighbouring Strata Plan. The trees grow on common property belonging to the owners of the Strata Plan. An earlier direction of the Court joined The Owners – Strata Plan No 15039 as respondents but did not remove the individual respondents. Any orders made should only apply to the owners of the Strata Plan. Therefore, pursuant to r 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW), I include in the orders made below the removal of the five individual respondents named in the original application.
The Part 2 application
-
Mr Fryday’s Part 2 application seeks compensation for repairing his sewer pipe and orders for all trees in the row to be pruned, on the grounds that roots from the trees have blocked his sewer pipe.
-
Mr Fryday obtained an estimate from Royal Flush Plumbing with options for replacing or relining his sewer pipe. His preference was that the pipe be relined, the estimated cost of those works and other costs…
Keep reading for free
Create a free CaseChat account to read Fryday v The Owners - Strata Plan No 15039 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
- [2019] NSWLEC 1150
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the plaintiff was entitled to proceed with the named individual lot owners as defendants, in addition to the body corporate represented by The Owners – Strata Plan No 15039. The legal issue hinged on the interpretation of the relevant strata legislation and the rules governing the institution of proceedings in strata title matters.
The court held that the plaintiff's action was properly brought against The Owners – Strata Plan No 15039 as the body corporate, but not against the individual lot owners. The court reasoned that under the applicable legislation, the body corporate is the appropriate party to be named in proceedings concerning strata title disputes. Consequently, the individual lot owners were not proper defendants and should be removed from the proceedings. The application to proceed against the individual lot owners was refused, and they were struck off as parties to the action, leaving only The Owners – Strata Plan No 15039 as the respondent.
Orders
Orders of the court
(1) Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW), respondents 1–5 listed on the application (P Richter, V Richter, J Baker, S Scott and R Jopling) are removed as parties to this matter, leaving The Owners – Strata Plan No 15039 as the only respondents.
(2) The application is refused.
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.