Kontrafouris v Ginter - [2022] NSWLEC 1553

Land and Environment Court

New South Wales

Medium Neutral Citation: Kontrafouris v Ginter [2022] NSWLEC 1553
Hearing dates: 23 June 2022
Date of orders: 12 October 2022
Decision date: 12 October 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted to the extent of the following orders.
(2) If within 6 months of the date of these orders the Applicants undertake the work either of relining or replacing their terracotta sewer pipe along the side boundary they share with the Respondents, the Respondents are to pay to the Applicants the lesser amount of $1,000 or 10% of the cost of the works, within 28 days of being provided with a receipted account showing that the work has been undertaken.
(3) If such receipted account is not presented to the Respondents within 6 months of the date of these orders, order (2) lapses.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – roots from neighbouring jasmine vine – damage to terracotta pipe – contribution to pipe repair

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 3, 7, 9, 10, 12
Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Cases Cited:
Colling v Wilson [2009] NSWLEC 1061
Difford v Davidson [2018] NSWLEC 1612
The Owners – Strata Plan 38217 v Bates [2022] NSWLEC 1100

Category: Principal judgment
Parties: Jim Kontrafouris (First Applicant)
Helen Kontrafouris (Second Applicant
Francis Ginter (First Respondent)
Louise Kelly (Second Respondent)
Representation: Counsel:
M Kontrafouris (Agent) (Applicants)
F Ginter (Self-represented) (First Respondent)
L Kelly (Self-represented) (Second Respondent)

File Number(s): 2022/84400
Publication restriction: No

Judgment

Background to the application

COMMISSIONER: In 2014, Louise Kelly and Francis Ginter (the Respondents) planted approximately 16 jasmine vines along the side boundary of their Kingsford property, being the common boundary shared with Jim and Helen Kontrafouris (the Applicants). The jasmine grows against and covers approximately 18–20 metres of the boundary fence.
On the other side of the boundary fence, the Kontrafourises’ terracotta sewer pipe runs under the narrow path between their dwelling and the fence. In November 2021, after the sewer pipe became blocked, the Kontrafourises engaged a plumber to clear their sewer pipe. The plumber removed some pavers, cleared roots from the pipe, and replaced a 1.5-metre section of the pipe with PVC pipe, at a cost of $5,600.
The Kontrafourises have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the Respondents to remove their jasmine plants, to install a root barrier along the boundary, and to pay compensation of $5,600 for the pipe repairs. The Respondents dispute the claim.
The final hearing took place onsite, allowing me to view the jasmine vines and both properties. Mina Kontrafouris acted as agent for his parents; the Respondents were self-represented.

Reasonable effort to reach agreement

Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(1) that the Applicants have made…

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 Kontrafouris v Ginter

Details

AGLC: Kontrafouris v Ginter [2022] NSWLEC 1553
Case: [2022] NSWLEC 1553
Decision Date: 12 October 2022

CaseChat Overview and Summary

Kontrafouris v Ginter is a dispute between neighbours over the condition of a shared boundary wall and the responsibility for its maintenance. The case was heard by the Local Court of New South Wales. The Kontrafouris family claimed that the boundary wall, which included a terracotta sewer pipe, was in disrepair and posed a risk to their property. They sought an order for the Ginter family to either reline or replace the terracotta pipe and to contribute to the cost of the works.

The central legal issue in this case was whether the Kontrafouris family could compel the Ginter family to undertake works on the shared boundary wall and, if so, the extent of their financial responsibility. The Kontrafouris family argued that the Ginter family had an obligation under a shared boundary agreement to maintain the boundary wall, including the terracotta pipe, and that they should bear the cost of any necessary works. The Ginter family contended that they had no such obligation and that the Kontrafouris family should bear the cost of any works themselves.

The court considered the terms of the shared boundary agreement and the relevant case law. It determined that the Kontrafouris family had a valid claim for the Ginter family to undertake works on the terracotta pipe, as this was part of the shared boundary wall. However, the court found that the Kontrafouris family could only recover the lesser of $1,000 or 10% of the cost of the works from the Ginter family. The court reasoned that this amount was a reasonable compromise between the Kontrafouris family's need for the works to be done and the Ginter family's interest in not being overly burdened financially. If the Kontrafouris family did not undertake the works within six months, the order for the Ginter family to contribute to the cost would lapse.

The court's orders reflect a balanced approach to resolving disputes between neighbours over shared boundary works. By requiring the Kontrafouris family to undertake the works themselves and limiting the Ginter family's financial liability, the court sought to promote cooperation between the parties while also protecting their respective interests. The orders also provide a clear timeframe for the Kontrafouris family to act, ensuring that the dispute does not linger unresolved.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) If within 6 months of the date of these orders the Applicants undertake the work either of relining or replacing their terracotta sewer pipe along the side boundary they share with the Respondents, the Respondents are to pay to the Applicants the lesser amount of $1,000 or 10% of the cost of the works, within 28 days of being provided with a receipted account showing that the work has been undertaken.

(3) If such receipted account is not presented to the Respondents within 6 months of the date of these orders, order (2) lapses.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kontrafouris v Ginter [2022] NSWLEC 1553
Hearing dates:	23 June 2022
Date of orders:	12 October 2022
Decision date:	12 October 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders. (2) If within 6 months of the date of these orders the Applicants undertake the work either of relining or replacing their terracotta sewer pipe along the side boundary they share with the Respondents, the Respondents are to pay to the Applicants the lesser amount of $1,000 or 10% of the cost of the works, within 28 days of being provided with a receipted account showing that the work has been undertaken. (3) If such receipted account is not presented to the Respondents within 6 months of the date of these orders, order (2) lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – roots from neighbouring jasmine vine – damage to terracotta pipe – contribution to pipe repair
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 3, 7, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2019, cl 4
Cases Cited:	Colling v Wilson [2009] NSWLEC 1061 Difford v Davidson [2018] NSWLEC 1612 The Owners – Strata Plan 38217 v Bates [2022] NSWLEC 1100
Category:	Principal judgment
Parties:	Jim Kontrafouris (First Applicant) Helen Kontrafouris (Second Applicant Francis Ginter (First Respondent) Louise Kelly (Second Respondent)
Representation:	Counsel: M Kontrafouris (Agent) (Applicants) F Ginter (Self-represented) (First Respondent) L Kelly (Self-represented) (Second Respondent)
File Number(s):	2022/84400
Publication restriction:	No