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Kacarovski v Stewart

Kacarovski v Stewart

Case [2024] NSWLEC 1725 12 November 2024

Civil Litigation & Procedure

Property Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Kacarovski v Stewart [2024] NSWLEC 1725
Hearing dates: 23 July 2024
Date of orders: 12 November 2024
Decision date: 12 November 2024
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court orders that:
(1) Within 30 days of the date of these orders, the respondents shall pay the applicant $1815.00 (50% of $3630.00) by Electronic Fund Transfer (EFT) as compensation for the cost of tile, ceiling and wall repairs.
(2) The respondents, initially at their expense, shall contract Draper Fencing or another licenced fencing contractor with all appropriate insurance, to construct a 1.8 m tall, treated pine fence approximately 41 m long, along the surveyed boundary between the southern end of the common front fence and the common rear boundary corner, in accordance with the specifications of the Draper Fencing Quote Number QU-1301 of 25 January 2024, for $8,663.60. The works shall be completed within 90 days of the date of these orders.
(3) The $8,663.60 Draper Fencing quote shall form the basis for apportionment of cost between the parties, but a 5% allowance shall be made for inflation as the quote expired in February 2024 and will likely need to be updated. Therefore, the maximum base price for apportionment of cost shall be $8,663.60 plus $443.18 = $9,096.78 and the applicant’s maximum liability shall be 25% of the maximum base price = $2,274.00, even if the respondents choose a more expensive contractor.
(4) Within 7 days of the completion of the fencing works, the respondents shall email the applicant a copy of an itemised paid invoice for the fencing works. Within 7 days of receipt of the paid invoice, the applicant shall pay the respondents by EFT; 25% of the total if the invoice total is less than $9,096.00, or, $2,274.00 if the invoice total is more than $9,096.00.
(5) In April 2025 and during April of each subsequent year, the respondents, at their expense, shall prune the height of the Murraya hedge in front of W2 to a maximum of 1.6 m above ground level.
(6) The applicant shall grant access to the respondents’ chosen licenced fencer or arborists to complete works or tidy the site, upon 72 hours’ notice by email.
(7) The tree works are to be undertaken in accordance with the guidelines of the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016, and all works shall be completed during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves falling onto roofs and into gutters – alleged severe obstruction of sunlight and views

Legislation Cited:
Dividing Fences Act 1991 ss 4, 7, 11, 13
Limitation Act 1969 ss 14(1)(d)
Trees (Disputes Between Neighbours) Act 2006,
Pt 2, ss 7, 9, 10, 12,
Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:
Ball v Bahramali & Anor [2010] NSWLEC 1334
Barker v Kyriakides [2007] NSWLEC 292
Fang v Lee & anor

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 Kacarovski v Stewart

Details

AGLC: Kacarovski v Stewart [2024] NSWLEC 1725
Case: [2024] NSWLEC 1725
Decision Date: 12 November 2024

CaseChat Overview and Summary

Kacarovski v Stewart is a case before the court where the applicant, Kacarovski, sought relief against the respondents, Stewart, over property boundary disputes. The applicant claimed damages for damage to tiles, ceilings, and walls caused by the respondents' tree, and sought the construction of a boundary fence and regular pruning of a hedge. The respondents disputed the extent of the damage and the necessity of the proposed fence and hedge maintenance. The court was tasked with determining the extent of the damage caused by the respondents' tree, the necessity and cost of the proposed fence, and the appropriateness of the hedge pruning requirements.

The court considered evidence regarding the damage to the applicant's property, finding that the respondents' tree had caused significant damage to tiles, ceilings, and walls. The court assessed the necessity of the proposed fence, determining it was reasonable to construct a 1.8 m tall, treated pine fence along the surveyed boundary to prevent future damage. The court also found that regular pruning of the Murraya hedge was necessary to prevent it from encroaching on the applicant's property. The court ordered the respondents to compensate the applicant for the repair costs, construct the fence according to the Draper Fencing quote, and undertake regular hedge maintenance. The court set out a detailed apportionment of costs for the fence and established a framework for ongoing maintenance of the property boundary.

In its orders, the court mandated that the respondents pay the applicant $1815.00 for the cost of repairs, construct a fence according to the Draper Fencing quote, and prune the hedge to a maximum height of 1.6 m. The court also stipulated that the respondents must provide the applicant with a paid invoice for the fencing works, upon which the applicant must pay 25% of the total cost or $2,274.00, whichever is greater. Additionally, the court ordered the respondents to grant access to the applicant's chosen contractors to perform the works, ensuring all activities comply with safety guidelines and are conducted during reasonable hours.

Orders

Orders of the court

The Court orders that:

(1) Within 30 days of the date of these orders, the respondents shall pay the applicant $1815.00 (50% of $3630.00) by Electronic Fund Transfer (EFT) as compensation for the cost of tile, ceiling and wall repairs.

(2) The respondents, initially at their expense, shall contract Draper Fencing or another licenced fencing contractor with all appropriate insurance, to construct a 1.8 m tall, treated pine fence approximately 41 m long, along the surveyed boundary between the southern end of the common front fence and the common rear boundary corner, in accordance with the specifications of the Draper Fencing Quote Number QU-1301 of 25 January 2024, for $8,663.60. The works shall be completed within 90 days of the date of these orders.

(3) The $8,663.60 Draper Fencing quote shall form the basis for apportionment of cost between the parties, but a 5% allowance shall be made for inflation as the quote expired in February 2024 and will likely need to be updated. Therefore, the maximum base price for apportionment of cost shall be $8,663.60 plus $443.18 = $9,096.78 and the applicant’s maximum liability shall be 25% of the maximum base price = $2,274.00, even if the respondents choose a more expensive contractor.

(4) Within 7 days of the completion of the fencing works, the respondents shall email the applicant a copy of an itemised paid invoice for the fencing works. Within 7 days of receipt of the paid invoice, the applicant shall pay the respondents by EFT; 25% of the total if the invoice total is less than $9,096.00, or, $2,274.00 if the invoice total is more than $9,096.00.

(5) In April 2025 and during April of each subsequent year, the respondents, at their expense, shall prune the height of the Murraya hedge in front of W2 to a maximum of 1.6 m above ground level.

(6) The applicant shall grant access to the respondents’ chosen licenced fencer or arborists to complete works or tidy the site, upon 72 hours’ notice by email.

(7) The tree works are to be undertaken in accordance with the guidelines of the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016, and all works shall be completed during reasonable daytime working hours.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kacarovski v Stewart [2024] NSWLEC 1725

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Steber v Job
[2019] NSWLEC 1308 Para 91

…In these discrete circumstances, regardless that the trees did not reach 2.5 m at the hearing, the Court relies on the rationale in Steber v Job [2019] NSWLEC 1308, which considers obstruction by the trees to be an ‘ongoing state’. The trees have recently exceeded a height of 2.5 m and severely obstructed the applica…
Fang v Li & Anor
[2017] NSWLEC 1503 Para 17

…ink between the trees and paving or roof damage and noted the requirements for engineering reports in the Tree Dispute Principle in Fang v Lee & anor [2017] NSWLEC 1503 (Fang) had not been satisfied. The respondents submitted that claims for historical damage were restricted to a six year window in accordance with th…
Stevens v Russell
[2016] NSWLEC 1233 Para 47

…In Stevens v Russell [2016] NSWLEC 1233, at [40], Commissioner Fakes said: “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused th…
Granger v Owners Corporation SP 18494
[2012] NSWLEC 1285 Para 37

…ents’ occupation. Although I considered the isolated broken panes to be minor damage, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 ( Granger ) indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, s 10(2)(a) of the Trees Act is satisfied.…
Johnson v Angus
[2012] NSWLEC 192 Para 84

…Johnson v Angus [2012] NSWLEC 192 ( Johnson ), an appeal judgment, provides extensive commentary on the interpretation of Pt 2A of the Trees Act. At [28] of Johnson, Preston CJ said:…
Granthum Holdings Pty Ltd v Miller
[2011] NSWLEC 1122 Para 79

…nsider a range of matters such as privacy and other benefits that the trees provide. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].…
Ball v Bahramali
[2010] NSWLEC 1334 Para 22

…The satisfaction of the requirement at s 8(1) of the Trees Act is addressed in Ball v Bahramali & Anor [2010] NSWLEC 1334 ( Ball) . Section 14C(1) was considered in Ball , where s 14C(1) is the same requirement in Pt 2A as s 8(1) in Pt 2 of the Trees Act. Ball , at [38], says;…
Lazarus v Le
[2010] NSWLEC 1118 Para 41

…lure can be taken into account by the Court when considering whether or not to make orders relating to the damage: for an example see Lazarus v Lee [2010] NSWLEC 1118; at [11]-[13]. The glasshouse appeared to be largely redundant and was covered in dirt and algae, including the residual broken panes. The glass damage…
Osborne v Hook
[2008] NSWLEC 1231 Para 57

…irs, this failure can be taken into account by the Court when considering whether or not to make orders relating to the damage. Unlike Osborne v Hook [2008] NSWLEC 1231, however, where Moore SC and Thyer AC did “not entertain any claim for damages”, the emergency circumstances and the nature of the works here make th…
Robson v Leischke
[2008] NSWLEC 152 Para 27

…Preston CJ provided extensive commentary on s 10(1)(a) of the Trees Act in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ( Robson ). At [194] – [195], his Honour says:…
Moroney v John
[2008] NSWLEC 32 Para 42

…rom the date of filing an application under the Trees Act, for compensation claims for past damage to an applicant’s property (see Moroney v John [2008] NSWLEC 32; at [32]-[33]). In certain circumstances, damage to building foundations may be exempt from the six-year time limit.…
Zhang v Long
[2007] NSWLEC 632 Para 50

…to repair impacted pavers. In such a case, the Court takes into account the failure of an applicant to maintain their own property (see Zhang v Long [2007] NSWLEC 632 at [94]-[104]). As s 10(2)(a) was not satisfied, no compensation shall be ordered for paving damage.…
Barker v Kyriakides
[2007] NSWLEC 292 Para 58

…t 2 of the Trees Act include claims for damage resulting from falling debris, the Court published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 ( Barker ), which, at [20], states that:…
Tenacity Consulting v Warringah
[2004] NSWLEC 140

…NSWLEC 1231 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Steber v Job [2019] NSWLEC 1308 Stevens v Russell [2016] NSWLEC 1233 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Zhang v Long [2007] NSWLEC 632 Texts Cited: Burwood Development Control Plan 2021 Category: Principal judgment Parties: Tom Kacar…

Legislation cited in this decision · 3

Dividing Fences Act 1991 (NSW)
11, 13, 4, 7 5 mentions (from Para 4)
Limitation Act 1969 (NSW)
14(1)(d) 2 mentions (from Para 17)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 7)

Medium Neutral Citation:	Kacarovski v Stewart [2024] NSWLEC 1725
Hearing dates:	23 July 2024
Date of orders:	12 November 2024
Decision date:	12 November 2024
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 30 days of the date of these orders, the respondents shall pay the applicant $1815.00 (50% of $3630.00) by Electronic Fund Transfer (EFT) as compensation for the cost of tile, ceiling and wall repairs. (2) The respondents, initially at their expense, shall contract Draper Fencing or another licenced fencing contractor with all appropriate insurance, to construct a 1.8 m tall, treated pine fence approximately 41 m long, along the surveyed boundary between the southern end of the common front fence and the common rear boundary corner, in accordance with the specifications of the Draper Fencing Quote Number QU-1301 of 25 January 2024, for $8,663.60. The works shall be completed within 90 days of the date of these orders. (3) The $8,663.60 Draper Fencing quote shall form the basis for apportionment of cost between the parties, but a 5% allowance shall be made for inflation as the quote expired in February 2024 and will likely need to be updated. Therefore, the maximum base price for apportionment of cost shall be $8,663.60 plus $443.18 = $9,096.78 and the applicant’s maximum liability shall be 25% of the maximum base price = $2,274.00, even if the respondents choose a more expensive contractor. (4) Within 7 days of the completion of the fencing works, the respondents shall email the applicant a copy of an itemised paid invoice for the fencing works. Within 7 days of receipt of the paid invoice, the applicant shall pay the respondents by EFT; 25% of the total if the invoice total is less than $9,096.00, or, $2,274.00 if the invoice total is more than $9,096.00. (5) In April 2025 and during April of each subsequent year, the respondents, at their expense, shall prune the height of the Murraya hedge in front of W2 to a maximum of 1.6 m above ground level. (6) The applicant shall grant access to the respondents’ chosen licenced fencer or arborists to complete works or tidy the site, upon 72 hours’ notice by email. (7) The tree works are to be undertaken in accordance with the guidelines of the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016, and all works shall be completed during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves falling onto roofs and into gutters – alleged severe obstruction of sunlight and views
Legislation Cited:	Dividing Fences Act 1991 ss 4, 7, 11, 13 Limitation Act 1969 ss 14(1)(d) Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F
Cases Cited:	Ball v Bahramali & Anor [2010] NSWLEC 1334 Barker v Kyriakides [2007] NSWLEC 292 Fang v Lee & anor