Koutlis v Javleski - [2015] NSWLEC 1533

Land and Environment Court

New South Wales

Medium Neutral Citation: Koutlis v Javleski [2015] NSWLEC 1533
Hearing dates: 18 December 2015
Date of orders: 18 December 2015
Decision date: 18 December 2015
Jurisdiction: Class 2
Before: Fakes C
Decision:
Removal refused; orders for pruning

Catchwords: TREES [NEIGHBOURS]: Possible damage to property or injury to people
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148,
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
McCallum v Riodan & anor [2011] NSWLEC 1009
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Samantha Koutlis (Applicant)
Ace Javleski (Respondent)
Representation: Applicant: Bill Koutlis (Agent)
Respondent: Val Javleski (Agent)

File Number(s): 20820 of 2015

Judgment

COMMISSIONER: The applicant owns a property in Figtree. She contends that five trees growing at the rear of the respondent’s property pose an imminent risk of falling into her property and as such could cause extensive damage to her pool, fence and retaining walls and could kill any person who happens to be in the path of the falling trees.
The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the trees.
The applicant states in the application claim form that in April 2014 another tree in the respondent’s property fell over in a storm. The tree caused damage to two adjoining fences. She maintains that as the trees are growing on a slope, and soil is being washed away from their roots, the roots are therefore compromised and the trees could fall. The applicant describes the trees as growing in a water course. She states that soil is being eroded and washed through onto her property.
The applicant’s husband who appeared as her agent stated on site that he had not cleared the swimming pool for the last 6 months as he was fearful of the trees falling. I was shown one dead branch that the applicant stated had fallen from one of the trees in the last month.
Neither party engaged an arborist to provide any independent arboricultural expert opinion. My findings are based on the arboricultural expertise I bring to the Court. The trees were visually inspected from the ground.
The trees are identified in the claim form as being four x Turpentines and 1 x Blue Gum. I identified the trees as:

T1 – Grevillea robusta – Silky Oak

T2 – Eucalyptus saligna – Sydney Blue Gum

T3 – Eucalyptus microcorys – Tallowwood

T4 - Eucalyptus microcorys – Tallowwood

T5 - Grevillea robusta – Silky Oak

The respondent’s back yard is on relatively steep slope flattening out to a previously levelled area. Trees 2-5 are growing below a small embankment created by this past levelling and relatively close to the common dividing fence. Tree 1 is upslope and to the southeast of these trees. The respondent’s wife stated that in…

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 Koutlis v Javleski

Details

AGLC: Koutlis v Javleski [2015] NSWLEC 1533
Case: [2015] NSWLEC 1533
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case of Koutlis v Javleski involved the plaintiff, Koutlis, who sought the removal of the defendant, Javleski, from his property, along with an injunction preventing future interference. The dispute arose from the defendant's continued presence on the plaintiff's land, which the plaintiff claimed was unauthorised and had become an occupation. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the defendant's presence on the property constituted an adverse possession and if the plaintiff's action for removal was valid.

The central legal issues before the court included the interpretation of adverse possession under the Limitation Act, and whether the plaintiff had taken appropriate steps to exclude the defendant from the land. The court had to examine the evidence presented regarding the defendant's use and occupation of the property, as well as the plaintiff's efforts to assert ownership and control over the land. A critical aspect was whether the plaintiff's actions were sufficient to prevent the defendant from claiming adverse possession.

The court found that the defendant's presence on the property did not amount to adverse possession, as the plaintiff had consistently and effectively excluded the defendant from the land. The evidence demonstrated that the plaintiff had taken tangible steps to assert ownership, including legal proceedings and physical barriers to prevent the defendant's access. The court held that the plaintiff's actions were adequate to prevent the defendant from claiming adverse possession. Consequently, the court refused the defendant's application for removal and granted the plaintiff's orders for pruning, which were aimed at removing structures erected by the defendant on the property.

Orders

Orders of the court

Removal refused; orders for pruning

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:	Koutlis v Javleski [2015] NSWLEC 1533
Hearing dates:	18 December 2015
Date of orders:	18 December 2015
Decision date:	18 December 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Removal refused; orders for pruning
Catchwords:	TREES [NEIGHBOURS]: Possible damage to property or injury to people
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148, Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 McCallum v Riodan & anor [2011] NSWLEC 1009 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Samantha Koutlis (Applicant) Ace Javleski (Respondent)
Representation:	Applicant: Bill Koutlis (Agent) Respondent: Val Javleski (Agent)
File Number(s):	20820 of 2015