Kellock v Callinan; Le Poidevin v Callinan

The applicants in Kellock v Callinan and Le Poidevin v Callinan sought relief in the Supreme Court of Victoria to remove a tree that was encroaching upon their property from the adjoining land. The applicants argued that the tree was causing damage to their property and posed a safety risk. The respondents, who were the owners of the land from which the tree was encroaching, opposed the removal, arguing that they had a right to maintain the tree and that the applicants had not demonstrated sufficient urgency to warrant an injunction. The court was required to determine whether the applicants had established a prima facie case for an interlocutory injunction to remove the tree, and if so, whether the balance of convenience favoured the grant of such an injunction.

The court held that the applicants had demonstrated a prima facie case for an interlocutory injunction to remove the tree, as they had established that the tree was causing damage to their property and posed a safety risk. The court found that the respondents had not provided any evidence to suggest that the tree was necessary for the enjoyment of their property or that its removal would cause them significant inconvenience. The court also found that the balance of convenience favoured the grant of the injunction, as the applicants had demonstrated that the tree posed an immediate risk to their property and safety, whereas the respondents had not demonstrated any significant inconvenience that would result from the removal of the tree. The court therefore ordered that the tree be removed from the applicants' property.

No further orders were made by the court. The applicants were awarded costs of the application in case number 21075 of 2012, while the respondents were awarded costs of the application in case number 20837 of 2012.