Khachan v Nisevic (No 2)
[2017] NSWLEC 110
•14 August 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Khachan v Nisevic (No 2) [2017] NSWLEC 110 Hearing dates: 3 July and 14 August 2017 Date of orders: 14 August 2017 Decision date: 14 August 2017 Jurisdiction: Class 2 Before: Robson J Decision: See orders at [12]
Catchwords: NOTICE OF MOTION – seeking orders to enforce compliance with decision of Acting Commissioner Fakes – Motion not in correct form – proceedings adjourned to allow time to amend Category: Procedural and other rulings Parties: Geraldine Khachan (Applicant)
Djuro Nisevic (Respondent)Representation: Counsel:
Geraldine Khachan (Litigant in person)
Djuro Nisevic (Litigant in person)
File Number(s): 2016/00374701 Publication restriction: No
ex temPore Judgment
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This matter comes before me today as Duty Judge. The background can be shortly stated. On 14 December 2016 the applicant, Geraldine Khachan, commenced Class 2 proceedings, being a tree dispute application. Ms Khachan owns property in Croydon Park. A mature Liquidambar is located on the neighbouring property of the respondent, Djuro Nisevic. Whilst the base of the trunk is located wholly on Mr Nisevic’s land, the majority of the severely pruned canopy overhangs Ms Khachan’s land.
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The tree dispute proceeded to a hearing before Acting Commissioner Fakes on 24 February 2017. Having received evidence including an expert arborist’s report and attending the site, Acting Commissioner Fakes, in a considered judgment, made orders in favour of Ms Khachan (Khachan v Nisevic [2017] NSWLEC 1093) (‘Orders’). The Orders provided, in summary, that within 60 days of the date of the Orders, Mr Nisevic was to engage and pay an arborist to remove the Liquidambar growing on his property to ground level, with the work being required to be carried out in a certain way.
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Mr Nisevic did not comply with the Orders and, accordingly, on 19 May 2017, Ms Khachan filed a Notice of Motion seeking relief in the following terms:
1 Acting Commissioner Fakes, Order 19 of her judgment dated 24 February 2017, is implemented as soon as possible;
2 Costs sought for travel expenses; time off work; and expert reports and court fees.
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That Motion came before me, as Duty Judge, on 3 July 2017. On that day, Ms Khachan and Mr Nisevic each appeared without legal representation. Prior to the matter being before me, I read the material including the expert evidence that had been before Acting Commissioner Fakes, as well as the decision of Acting Commissioner Fakes. It was clear that Mr Nisevic had not complied with the Orders and that Ms Khachan was desirous of having the Court enforce the Orders.
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On 3 July 2017, I was concerned that Mr Nisevic may well have not understood the gravity of the situation and the fact that his non-compliance with the Orders was a serious matter. I suggested to Mr Nisevic and Ms Khachan that, in the circumstances of the nature of the relief sought in the Motion, each should obtain legal advice. Having canvassed my views in relation to the ongoing conduct of the matter, I stood the matter over to today.
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This morning Ms Khachan and Mr Nisevic each appeared without representation. I note that Mr Nisevic was accompanied in Court today by his son-in-law, Simon Kizic. Mr Kizic helpfully assisted in explaining certain matters to Mr Nisevic. Although grateful to have Mr Kizic's assistance this morning, on the previous occasion I was comfortable that Mr Nisevic had an appropriate understanding of English. To the extent that that is not the case, I am comfortable that Mr Kizic has properly explained to Mr Nisevic my views in relation to the ongoing conduct of the matter, my concern in relation to his non-compliance with the Orders, and the consequences of the present relief being sought by Ms Khachan.
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It is clear that Mr Nisevic has still not complied with the Orders. However during the course of this morning’s proceedings, I expressed my view that Ms Khachan's Notice of Motion is not in the correct form to achieve the relief which she seeks, which, in effect, is for contempt of court in relation to Mr Nisevic's non-compliance with the Orders made on 24 February 2017.
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In the circumstances, again with my suggestion to each of the parties to obtain legal advice and to make some attempt to resolve the matter, I somewhat reluctantly stand the matter over to the Registrar's list on 19 September 2017.
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I note that I have informed Ms Khachan as to my concerns in relation to the form of her Motion and clarified that for the matter to proceed, she will need to amend the Motion and marshal evidence to support the relief that she seeks. I have also indicated to her that the evidence upon which she intends to rely will need to be in properly admissible form and served on Mr Nisevic, and that these requirements are quite technical. I informed Ms Khachan that if she does not, or is unable to, amend the Motion, it is my view that the Court will not be in a position to entertain her claim.
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I have also indicated to Ms Khachan that the services of the Tree Disputes Helpdesk may be of some assistance to her although that would be simply in relation to the form of the orders sought in the Motion. I again suggest that both parties obtain legal advice in relation to this serious matter that does entail some technicality in terms of the relief which is otherwise sought.
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Apart from the matters I have noted, I also express my concern, particularly to Mr Nisevic, that the earlier factual finding of Acting Commissioner Fakes was that the tree was, to use the Acting Commissioner’s words, "structurally compromised" and if the limbs, which she noted were “considerably long and heavy” should fall, which the Acting Commissioner found was foreseeable, they would cause damage to property and potentially serious injury to anyone who is on Ms Khachan's land.
Orders
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The Court orders that:
The matter is adjourned to 19 September 2017 at 9:00am for further directions before the Registrar.
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Decision last updated: 28 August 2017
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