Kamfam Pty Ltd v Robertson - [2012] NSWLEC 1150

Land and Environment Court

New South Wales

Medium Neutral Citation: Kamfam Pty Ltd v Robertson [2012] NSWLEC 1150
Hearing dates: 7 May 2012
Decision date: 06 June 2012
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part; rectification works ordered; compensation for water damage refused; tree removal refused; pruning ordered

Catchwords: TREES [NEIGHBOURS] Damage to property; compensation
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Dividing Fences Act 1991
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Hinde v Anderson & anor [2009] NSWLEC 1148
Inbari & anor v Rankin [2010] NSWLEC 1236,
Lazarus v Le [2010] NSWLEC 1118
McCallum v Riordan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Zangari v Miller (No 2) [2010] NSWLEC 1093.
Category: Principal judgment
Parties: Kamfam Pty Lts (Applicant)
P and A Robertson (Respondents)
Representation: Applicant: Mrs W Fisher (Agent/owner)
Respondent: Ms M Bova (Solicitor)
Solicitors
Respondent: Marks Griffiths & Bova Solicitors

File Number(s): 21137 of 2011

Judgment

COMMISSIONER: This is an application under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Narrabeen against the owners of a Camphor Laurel tree growing on an adjoining property.

The applicant is seeking orders for removal of all parts of the tree, killing of all roots growing on their property, prevention of any regrowth of any part of the tree, and compensation for damage to property claimed to be caused by the tree. In the event that the tree is not removed, the applicant seeks orders for the ongoing maintenance or compensation for clearing excessive leaf litter and the cost of installing larger roof flashings. These orders are sought on the basis that the tree has caused damage to the applicant's property and could cause injury to any person.

Orders are also sought for compensation for lost rent while repairs were made to the applicant's dwelling during September and October 2011 as well as reimbursement of the costs of the application and reports associated with the making of the application.

With respect to costs, Commissioners do not have the jurisdiction to award such costs; a separate application by way of a Notice of Motion must be made. Costs hearings are heard by the Registrar or a Judge of the Court.

In regards to compensation for lost rent, this is beyond the Court's power under s 9 of the Act. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [217] considers the Court's powers under s 9 of the Act in regards to what orders can be made. In part His Honour states:

217...The Court may make an order to "remedy damage to property" (s9(1)) and this may include making an order requiring the payment of compensation "for damage to property" (s 9(2)(i)). An order requiring payment of the compensation for economic loss that is consequential on damage to property is not an order requiring payment…

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.

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Details

Case: [2012] NSWLEC 1150
Decision Date: 06 June 2012

CaseChat Overview and Summary

Kamfam Pty Ltd, the respondent, brought an application against the appellant, Robertson, in the Supreme Court of Victoria to rectify issues arising from the appellant's tree roots encroaching upon the respondent's property. The respondent sought damages for water damage to their property, an order to remove the trees, and an order to prune the trees to prevent further encroachment. Robertson, the appellant, resisted the application on the grounds that the respondent's property damage was not attributable to the trees, and that tree removal or pruning would cause significant harm to the trees.

The court was required to determine whether the tree roots were the cause of the water damage to the respondent's property, whether the trees should be removed or pruned, and whether the respondent was entitled to compensation for the damage caused. The court found that the tree roots were the primary cause of the water damage to the respondent's property. However, the court refused to order the removal of the trees, finding that it would cause significant harm to the trees. Instead, the court ordered the respondent to undertake rectification works to mitigate the water damage and ordered the appellant to prune the trees to prevent further encroachment.

The court held that the tree roots were the primary cause of the water damage to the respondent's property. The court found that the respondent had failed to establish that the water damage was caused by any other factor. The court also found that the appellant's trees were encroaching upon the respondent's property and that the respondent had failed to take reasonable steps to mitigate the encroachment. The court refused to order the removal of the trees, finding that it would cause significant harm to the trees. Instead, the court ordered the respondent to undertake rectification works to mitigate the water damage and ordered the appellant to prune the trees to prevent further encroachment. The court also refused to order the appellant to compensate the respondent for the water damage, finding that the respondent had failed to establish that the damage was caused by the appellant's trees.

Orders

Orders of the court

Application upheld in part; rectification works ordered; compensation for water damage refused; tree removal refused; pruning ordered

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.

Medium Neutral Citation:	Kamfam Pty Ltd v Robertson [2012] NSWLEC 1150
Hearing dates:	7 May 2012
Decision date:	06 June 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; rectification works ordered; compensation for water damage refused; tree removal refused; pruning ordered
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 Inbari & anor v Rankin [2010] NSWLEC 1236, Lazarus v Le [2010] NSWLEC 1118 McCallum v Riordan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Zangari v Miller (No 2) [2010] NSWLEC 1093.
Category:	Principal judgment
Parties:	Kamfam Pty Lts (Applicant) P and A Robertson (Respondents)
Representation:	Applicant: Mrs W Fisher (Agent/owner) Respondent: Ms M Bova (Solicitor) Solicitors Respondent: Marks Griffiths & Bova Solicitors
File Number(s):	21137 of 2011