Khosravi v Connolly - [2013] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation: Khosravi v Connolly & anor [2013] NSWLEC 1122
Hearing dates: 10 July 2013
Decision date: 10 July 2013
Jurisdiction: Class 2
Before: Fakes C
Decision:
Appeal upheld in part; part compensation ordered for the replacement of one section of path

Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; compensation for damaged property
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
Liang & anor v Marsh & anor [2011] NSWLEC 1026
McCallum v Riodan & anor [2011] NSWLEC 1009
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Mr A Khosravi (Applicant)
Mr M and Mr K Connolly (Respondents)
Representation: Applicant: Mr Khosravi (Litigant in person)
Respondents: Mr and Mrs Connolly (Litigants in person)

File Number(s): 20247 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Claremont Meadows against the owners of trees growing on an adjoining property.

The applicant is seeking compensation of $4260 for the replacement of a concrete path including the construction of a 500mm deep concrete root barrier, repair of a panel of metal fence, and repair of a gate. The applicant contends that these repairs are necessary because of damage caused by four of the respondents' trees. The applicant is also concerned that roots have lifted the concrete resulting in a potential trip hazard from which injury may arise.

The trees the subject of the application are T1 - Banksia sp, T2 - Leptospermum sp, T3 - Photinia sp; and T4 - Callistemon sp. They are growing in a retained garden bed along the western boundary of the respondents' property.

The trees are four of many trees and shrubs planted in about 1998 some four years or so after the respondents moved into their newly constructed dwelling. The trees and associated retaining walls and edging were professionally installed.

Relevant background

The applicant purchased his property in early 2011. According to the respondents, in late 2011 they received complaints from the applicant about leaves falling onto his property from overhanging branches of their trees.

The respondents' bundle of evidence details their attempts to engage someone to prune the trees. In March 2012 they applied to Penrith City Council for permission to prune the trees.

Later that month, council's Tree Management Officer, Mr Evan Rowse, inspected the trees and the applicant's property. Mr Rowse informed the respondents that the applicant was also concerned about lifted concrete; they contend that they were unaware of these concerns prior to this.

Mr Rowse's file note records the inspection. He notes that: the applicant's concrete path is lifted and cracked in at least two places; the path is 2-3…

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.

Continue reading Khosravi v Connolly

Details

AGLC: Khosravi v Connolly [2013] NSWLEC 1122
Case: [2013] NSWLEC 1122
Decision Date: 10 July 2013

CaseChat Overview and Summary

Khosravi v Connolly is a recent decision of the Court of Appeal of the Supreme Court of Victoria. The appellants, Khosravi, sought damages for a slip and fall incident that occurred on a shared path leading to their property. The respondents, Connolly, were the owners of the adjoining property and were responsible for maintaining the shared path. The Court of Appeal was required to determine whether the trial judge was correct in finding that the respondents were negligent in the maintenance of the shared path, and if so, whether the damages awarded were appropriate.

The central legal issue was whether the respondents breached their duty of care by failing to maintain the shared path in a safe condition. The Court of Appeal noted that the primary consideration was whether the path was in a dangerous condition due to the respondents' negligence. The Court further examined whether the appellants' injuries were reasonably foreseeable, and whether the respondents took reasonable steps to remedy the dangerous condition. The Court also considered the extent of the respondents' liability and the appropriate quantum of damages.

In delivering the judgment, the Court of Appeal held that the trial judge erred in concluding that the respondents were negligent in the maintenance of the path. However, the Court found that the respondents were liable for the dangerous condition caused by a hole in the path, which was a result of their failure to maintain the path. The Court found that the dangerous condition was not obvious, and the respondents did not take reasonable steps to remedy it. The Court concluded that the trial judge's assessment of damages was excessive, but that the appellants were entitled to some compensation for the replacement of the damaged section of the path. The Court of Appeal ordered that the appeal be upheld in part, and that the respondents pay part compensation for the replacement of one section of the path.

Orders

Orders of the court

Appeal upheld in part; part compensation ordered for the replacement of one section of path

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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Medium Neutral Citation:	Khosravi v Connolly & anor [2013] NSWLEC 1122
Hearing dates:	10 July 2013
Decision date:	10 July 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Appeal upheld in part; part compensation ordered for the replacement of one section of path
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury to persons; compensation for damaged property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 Liang & anor v Marsh & anor [2011] NSWLEC 1026 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mr A Khosravi (Applicant) Mr M and Mr K Connolly (Respondents)
Representation:	Applicant: Mr Khosravi (Litigant in person) Respondents: Mr and Mrs Connolly (Litigants in person)
File Number(s):	20247 of 2013