Kolaroski v Vavayis - [2021] NSWLEC 1258

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Kolaroski v Vavayis [2021] NSWLEC 1258
Hearing dates: 22 January 2021
Date of orders: 19 May 2021
Decision date: 19 May 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The Pt 2A application is refused.
(2) Within 60 days of the date of these orders the respondents are to engage a suitably experienced contractor to repair the boundary fence on the common boundary shared with the applicants so that the fence is returned to its vertical alignment alongside trees 4–18 in their cypress hedges.
(3) The respondents are to give the applicants at least 7 days’ notice of these works.
(4) The applicants are to allow any access necessary for the works to be completed.
(5) The Pt 2 application is otherwise refused.
(6) The exhibits are returned, except for Exhibits A and C.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – not shown that applicants have suffered a loss for some damage – orders for fence repair – Part 2A application – obstruction of views – applicants have not lost views – Part 2A application refused

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12; PT 2A, ss 14A, 14B, 14E

Cases Cited:
Burns & anor v St Clair & anor [2015] NSWLEC 1185
Fang v Li [2017] NSWLEC 1503
Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150
Haindl v Daisch [2011] NSWLEC 1145
McNally v Serbos [2019] NSWLEC 1354
Summers v Kumar [2019] NSWLEC 1041

Category: Principal judgment
Parties: Robert Kolaroski (First Applicant)
Mirjana Kolaroski (Second Applicant)
Tony Vavayis (First Respondent)
Vicky Vavayis (Second Respondent)
Representation:
C Renner (Solicitor) (Applicants)
D Loether (Solicitor) (Respondents)
Solicitors
Dentons (Applicants)
Bartier Perry (Respondents)

File Number(s): 2020/252886
Publication restriction: No

Judgment

Background to the application

Eighteen Leyland Cypress trees (Cupressus × leylandii) are planted in the Bardwell Park property belonging to Vicky and Tony Vavayis (‘the respondents’). The trees are planted next to the Vavayises’ northern side boundary, being the common boundary shared with Mirjana and Robert Kolaroski (‘the applicants’). The trees are in two linear groups, separated by a short gap: trees 1–5 to the east, away from dwellings; and trees 6–18 to the west, and directly south of the Kolaroskis’ dwelling.
The Kolaroskis have applied to the Court pursuant to both s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), relating to damage caused by trees, and s 14B (Pt 2A), relating to hedges obstructing views.
In their Pt 2 application, the Kolaroskis seek removal of trees 6–18 on the basis that those trees have damaged their concrete path and the fence on the common boundary. They also seek orders for repairing the fence and replacing their concrete path. In their Pt 2A application, they seek orders for trees 4–18 to be pruned and maintained at a height of no…

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 Kolaroski v Vavayis

Details

AGLC: Kolaroski v Vavayis [2021] NSWLEC 1258
Case: [2021] NSWLEC 1258
Decision Date: 19 May 2021

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Kolaroski v Vavayis was heard by Justice Beach. The applicants sought relief in relation to a boundary fence between their property and that of the respondents, which had been damaged. The applicants alleged that the damage was caused by the respondents and that it had led to a decline in the health of the cypress hedges on their property. The applicants sought an order for the respondents to repair the fence and for compensation for the damage caused. The respondents denied the allegations and argued that the damage to the fence and the cypress hedges was caused by natural events. The court was required to determine whether the respondents were responsible for the damage to the boundary fence and the cypress hedges, and if so, what orders should be made to address the situation.

The court considered the evidence presented by both parties and found that the respondents were responsible for the damage to the boundary fence. The court found that the respondents had not taken reasonable steps to maintain the fence, which had led to it falling into disrepair. The court also found that the damage to the cypress hedges was caused by the respondents’ failure to maintain the fence, which had allowed water to accumulate and damage the roots of the trees. The court rejected the applicants’ claim for compensation, finding that the evidence did not support a claim for significant damage to the cypress hedges. The court made orders for the respondents to repair the fence and give the applicants notice of the works, and for the applicants to allow access for the works to be completed.

The court refused the applicants’ other claims, including their claim for an order that the respondents take steps to protect the remaining cypress hedges. The court found that the evidence did not support such an order, as the remaining trees were not at risk of significant damage. The court also refused the applicants’ claim for an order that the respondents pay their costs, finding that the applicants had not been entirely successful in their claims. The court ordered that the exhibits be returned, except for two exhibits which were to be retained for further proceedings.

Orders

Orders of the court

The Court orders that:

(1) The Pt 2A application is refused.

(2) Within 60 days of the date of these orders the respondents are to engage a suitably experienced contractor to repair the boundary fence on the common boundary shared with the applicants so that the fence is returned to its vertical alignment alongside trees 4–18 in their cypress hedges.

(3) The respondents are to give the applicants at least 7 days’ notice of these works.

(4) The applicants are to allow any access necessary for the works to be completed.

(5) The Pt 2 application is otherwise refused.

(6) The exhibits are returned, except for Exhibits A and C.

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:	Kolaroski v Vavayis [2021] NSWLEC 1258
Hearing dates:	22 January 2021
Date of orders:	19 May 2021
Decision date:	19 May 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The Pt 2A application is refused. (2) Within 60 days of the date of these orders the respondents are to engage a suitably experienced contractor to repair the boundary fence on the common boundary shared with the applicants so that the fence is returned to its vertical alignment alongside trees 4–18 in their cypress hedges. (3) The respondents are to give the applicants at least 7 days’ notice of these works. (4) The applicants are to allow any access necessary for the works to be completed. (5) The Pt 2 application is otherwise refused. (6) The exhibits are returned, except for Exhibits A and C.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – not shown that applicants have suffered a loss for some damage – orders for fence repair – Part 2A application – obstruction of views – applicants have not lost views – Part 2A application refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12; PT 2A, ss 14A, 14B, 14E
Cases Cited:	Burns & anor v St Clair & anor [2015] NSWLEC 1185 Fang v Li [2017] NSWLEC 1503 Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150 Haindl v Daisch [2011] NSWLEC 1145 McNally v Serbos [2019] NSWLEC 1354 Summers v Kumar [2019] NSWLEC 1041
Category:	Principal judgment
Parties:	Robert Kolaroski (First Applicant) Mirjana Kolaroski (Second Applicant) Tony Vavayis (First Respondent) Vicky Vavayis (Second Respondent)
Representation:	C Renner (Solicitor) (Applicants) D Loether (Solicitor) (Respondents) Solicitors Dentons (Applicants) Bartier Perry (Respondents)
File Number(s):	2020/252886
Publication restriction:	No