Kristeller v Matis

[2012] NSWLEC 1027

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kristeller v Matis [2012] NSWLEC 1027
Hearing dates:	15 February 2012
Decision date:	15 February 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; limited compensation payable
Catchwords:	TREES [NEIGHBOURS]; damage to property; injury to persons; compensation; tree removed; damage during period in which respondent has owned the property; apportionment of any compensation
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Robson v Leischke [2008] NSWLEC 152 Thornberry & anor v Packer & anor [2010] NSWLEC 1069 Cincotta v Huang & ors [2011] NSWLEC 1086 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mrs H Kristeller (Applicant) Mrs A Matis (Respondent)
Representation:	Applicant: Mr G Christmas (Solicitor) Respondent: Mr G Matis (Agent) Apex Law
File Number(s):	21115 of 2011

Judgment

1. 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 Vaucluse against the owner of two trees growing on an adjoining property.

1. The application, as originally made, sought orders for the removal of the trees and their stumps at the respondent's expense; compensation for a sum of at least $11,578 plus GST for damage said to have been caused by the trees; and the payment by the respondent of the applicant's costs in obtaining legal services, the cost of expert reports, and the application filing fee. With respect to the last order, Commissioners do not have the jurisdiction to award such costs and a separate application must be made.

1. The application is made on the basis that the trees concerned, have caused, and could in the near future cause, damage to the applicant's property and injury to people using a side pathway.

1. Prior to the on-site hearing, the trees, two Araucaria spp [identified in the application as Norfolk Island Pines but in a permit issued by Woollahra Council, as Hoop Pines] were removed by the respondent after Woollahra Council granted approval under council's Tree Preservation Order. As a consequence, the applicant filed amended orders. These orders are summarised as:

• The respondent to ensure that the remains of the trees are removed and or the roots are ground or adequately poisoned (to prevent further growth);
• The applicant to arrange all work in the quote submitted by Allneeds Property Maintenance dated 7 February 2012 to be carried out within 60 days and with necessary access provided by the respondent - the updated quote ranges from $10,200 - $13,800 plus GST.
• The respondent to reimburse the applicant 100% of the costs of the works within 21 days of the receipt of a tax invoice for the completed work.

1. The respondent contends that she should not be liable for any payment of compensation.

Relevant background

1. The applicant has owned her property for approximately 20 years. According to a chronology of events compiled by Mr Christmas on the applicant's behalf,…