Goldmann v Malane - [2012] NSWLEC 1234

Land and Environment Court

New South Wales

Case Title: Goldmann and anor v Malane

Medium Neutral Citation: [2012] NSWLEC 1234

Hearing Date(s): 17 August 2012

Decision Date: 17 August 2012

Jurisdiction: Class 2

Before: Galwey AC

Decision: (1) The application is upheld.
(2) Ms Malane is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove the three Norfolk Island Pines to ground level. The stumps are to remain in the ground. These works are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry and are to be completed within 60 days of the date of these orders.
(3) The Goldmanns are to provide all access required for the works in (2) on reasonable notice during reasonable hours of the day. They can supervise the works if they wish.
(4) Within 30 days of the date of these orders the parties are each to obtain two quotes for repair of the section of paving between the dwelling and the trees, being the section at the same level as the paving where the large root has been exposed. The quotations must show details of the works, including lifting of pavers, cutting and removal of roots, preparation of the surface and re-laying of pavers.
(5) The Goldmanns are to provide all reasonable access during reasonable hours of the day on reasonable notice for contractors selected by Ms Malane to assess the site for the purpose of providing quotations.
(6) Within 35 days of the date of these orders the parties are to agree on one of the quotes or, if they cannot agree, select the cheapest quote.
(7) The Goldmanns are to engage and pay for the selected contractor in (6) to carry out the works in (4). The works are to be completed within 90 days of the date of these orders.
(8) Ms Malane is to pay the Goldmanns 50% of the selected quote in (6) within 7 days of receiving a receipted invoice for the completed paving works.
(9) If the Goldmanns do not provide Ms Malane with a receipted invoice for the works within 120 days of the date of these orders, (8) lapses.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of damage; risk of injury; removal of three trees ordered; compensation ordered.

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Texts Cited:

Category: Principal judgment

Parties:
Andrew Goldmann (First Applicant)
Eva-Maria Goldmann (Second Applicant)

Madeline Malane (Respondent)

Representation

- Counsel:

- Solicitors: Andrew Goldmann (Litigant in Person) (Applicant)
Mr John Comino, Comino Prassas Lawyers (Respondent)

File number(s): 20421 of 2012

Publication Restriction:

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

ACTING COMMISSIONER: On sloping land above Bonnet Bay three Norfolk Island Pines grow on Ms Madeline Malone's property within a metre of the common boundary with her neighbour Mr Goldmann's property. Mr Goldmann, the applicant, says that…

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 Goldmann v Malane

Details

AGLC: Goldmann v Malane [2012] NSWLEC 1234
Case: [2012] NSWLEC 1234
Decision Date: 17 August 2012

CaseChat Overview and Summary

Goldmann v Malane is a case before the NSW Civil and Administrative Tribunal (NCAT) concerning a dispute between the Goldmanns and Ms Malane, presumably neighbours. The primary issue is the removal of three Norfolk Island Pines from Ms Malane's property, which have allegedly grown roots that have caused damage to the Goldmanns' driveway. The Goldmanns seek the removal of these trees and the repair of the damaged driveway, while Ms Malane disputes the need for such actions and the associated costs.

The NCAT was required to decide several legal issues, including whether the trees constituted a nuisance, whether the Goldmanns were entitled to the removal of the trees and repair of the driveway, and if so, who should bear the costs associated with these actions. The tribunal also needed to determine the appropriate process for selecting a contractor to carry out the required works and how the costs should be shared between the parties.

In its decision, the NCAT found that the trees did constitute a nuisance, warranting their removal. The tribunal ordered Ms Malane to engage a suitably qualified arborist to remove the trees, with the Goldmanns to provide access and the ability to supervise the works if they so wished. The NCAT further directed the parties to obtain quotes for repairing the damaged driveway, select a contractor, and share the costs equally. The tribunal emphasised the importance of adhering to the WorkCover NSW Code of Practice for the Amenity Tree Industry and set specific timelines for the completion of the works. Additionally, the NCAT ordered Ms Malane to pay half of the selected quote within seven days of receiving a receipted invoice for the completed paving works, with the condition that this payment would lapse if the Goldmanns did not provide a receipted invoice within 120 days.

In conclusion, the NCAT upheld the Goldmanns' application, ordering the removal of the trees and the repair of the driveway, and specified the process for selecting contractors and sharing the costs. The tribunal set clear timelines for the completion of the works and the payment of the associated costs, ensuring that both parties have a fair and reasonable opportunity to address the nuisance caused by the trees.

Orders

Orders of the court

(1) The application is upheld.

(2) Ms Malane is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove the three Norfolk Island Pines to ground level. The stumps are to remain in the ground. These works are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry and are to be completed within 60 days of the date of these orders.

(3) The Goldmanns are to provide all access required for the works in (2) on reasonable notice during reasonable hours of the day. They can supervise the works if they wish.

(4) Within 30 days of the date of these orders the parties are each to obtain two quotes for repair of the section of paving between the dwelling and the trees, being the section at the same level as the paving where the large root has been exposed. The quotations must show details of the works, including lifting of pavers, cutting and removal of roots, preparation of the surface and re-laying of pavers.

(5) The Goldmanns are to provide all reasonable access during reasonable hours of the day on reasonable notice for contractors selected by Ms Malane to assess the site for the purpose of providing quotations.

(6) Within 35 days of the date of these orders the parties are to agree on one of the quotes or, if they cannot agree, select the cheapest quote.

(7) The Goldmanns are to engage and pay for the selected contractor in (6) to carry out the works in (4). The works are to be completed within 90 days of the date of these orders.

(8) Ms Malane is to pay the Goldmanns 50% of the selected quote in (6) within 7 days of receiving a receipted invoice for the completed paving works.

(9) If the Goldmanns do not provide Ms Malane with a receipted invoice for the works within 120 days of the date of these orders, (8) lapses.

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.

Case Title:	Goldmann and anor v Malane
Medium Neutral Citation:	[2012] NSWLEC 1234
Hearing Date(s):	17 August 2012
Decision Date:	17 August 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is upheld. (2) Ms Malane is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove the three Norfolk Island Pines to ground level. The stumps are to remain in the ground. These works are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry and are to be completed within 60 days of the date of these orders. (3) The Goldmanns are to provide all access required for the works in (2) on reasonable notice during reasonable hours of the day. They can supervise the works if they wish. (4) Within 30 days of the date of these orders the parties are each to obtain two quotes for repair of the section of paving between the dwelling and the trees, being the section at the same level as the paving where the large root has been exposed. The quotations must show details of the works, including lifting of pavers, cutting and removal of roots, preparation of the surface and re-laying of pavers. (5) The Goldmanns are to provide all reasonable access during reasonable hours of the day on reasonable notice for contractors selected by Ms Malane to assess the site for the purpose of providing quotations. (6) Within 35 days of the date of these orders the parties are to agree on one of the quotes or, if they cannot agree, select the cheapest quote. (7) The Goldmanns are to engage and pay for the selected contractor in (6) to carry out the works in (4). The works are to be completed within 90 days of the date of these orders. (8) Ms Malane is to pay the Goldmanns 50% of the selected quote in (6) within 7 days of receiving a receipted invoice for the completed paving works. (9) If the Goldmanns do not provide Ms Malane with a receipted invoice for the works within 120 days of the date of these orders, (8) lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of damage; risk of injury; removal of three trees ordered; compensation ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Andrew Goldmann (First Applicant) Eva-Maria Goldmann (Second Applicant) Madeline Malane (Respondent)
Representation
- Counsel:
- Solicitors:	Andrew Goldmann (Litigant in Person) (Applicant) Mr John Comino, Comino Prassas Lawyers (Respondent)
File number(s):	20421 of 2012
Publication Restriction: