Karaboulis v Berbeniuk

[2009] NSWLEC 1429

Land and Environment Court

of New South Wales

CITATION:

Karaboulis v Berbeniuk [2009] NSWLEC 1429

PARTIES:

APPLICANT
Chris Karaboulis

RESPONDENT
Juan Berbeniuk

FILE NUMBER(S):

20824 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Compensation.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

17 December 2009

EX TEMPORE JUDGMENT DATE:

17 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Slattery (solicitor)
SOLICITOR
Carroll O’Dea Lawyers

RESPONDENT
Mr T Barbu (solicitor)
SOLICITOR
Barbu Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

17 December 2009

20824 of 2009 Chris Karaboulis v Juan Berbeniuk

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Chris Karaboulis of 17 Handley Avenue Bexley North against Mr Juan Berbeniuk of 15 Handley Avenue.

2 At the directions hearing held at Sutherland Court House on 17^th December, Mr Martin Slattery of Carroll O’Dea Lawyers represented the applicant and Mr Tony Barbu of Barbu Lawyers represented the respondent.

3 The application is for compensation of a sum of $25,754.30 plus legal costs and disbursements for the removal and replacement of a garage alleged to have been damaged by a tree growing on the respondent’s property. With respect to legal costs, Commissioners do not have jurisdiction to award such costs.

4 Another element of the application is ‘risk of injury to people’ arising from the damaged garage.

5 The application states that the tree, a eucalypt, was removed on 24 June 2009 with approval from the council. The date the application was lodged with the Court was 4^th November 2009.

6 Section 4(3) of the Act states – ‘For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land’. If a tree has been wholly removed before the application is made, the tree will no longer be situated on the land. The use of the word “is” requires the tree still to be in existence when the application is made.

7 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In this matter the tree has been removed. With respect to the risk of injury, the garage is not a tree.

8 In my opinion, the Court does not have jurisdiction in this matter as there is no longer a tree to which the Act applies.

9 Therefore the Orders of the Court are:

1. The application for compensation is dismissed.

________________________

Commissioner of the Court