Karaboulis v Berbeniuk

Case [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 17th 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 4th 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

Details
AGLC
Karaboulis v Berbeniuk [2009] NSWLEC 1429
Case
[2009] NSWLEC 1429
Decision Date

CaseChat Overview and Summary

Chris Karaboulis, the applicant, has made an application against Juan Berbeniuk, the respondent, in the Land and Environment Court of New South Wales. Karaboulis seeks compensation for damage to his garage, which he alleges was caused by a tree growing on Berbeniuk's property. The application also includes a claim for the risk of injury to people due to the damaged garage. The case hinges on the Trees (Disputes Between Neighbours) Act 2006, which provides a framework for resolving disputes between neighbours regarding trees.

The primary legal issue before the court was whether the application could proceed given that the tree in question had been removed before the application was made. Section 4(3) of the Act specifies that a tree must be situated on the land for the purposes of the Act, implying that the tree must exist at the time of the application. Additionally, under section 10(2) of the Act, the court must be satisfied that the tree has caused, is causing, or is likely to cause damage, or poses a risk of injury to persons. The court needed to determine if the absence of the tree at the time of the application meant the court lacked jurisdiction.

The court concluded that the application could not proceed as there was no longer a tree on Berbeniuk's property to which the Act could apply. Consequently, the court did not have jurisdiction to make an order for compensation or to address the risk of injury. The court dismissed the application, noting that the tree's removal precluded any further action under the Act.

The final orders of the court were that the application for compensation was dismissed. The court did not award legal costs as it did not have the jurisdiction to do so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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