Lister & Anor v Hong & Anor - [2006] NSWSC 1135

CITATION: Lister & Anor v Hong & Anor [2006] NSWSC 1135

HEARING DATE(S): 27 July 2006

JUDGMENT DATE :
31 October 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is upheld ; (2) The decision of Magistrate Schurr dated 23 May 2005 in relation to tree root damage is affirmed ; (3) The decision dated 23 August 2005 in relation to tree branch damage is set aside; (4) The matter is remitted to the Local Court to be dealt with according to law, on the issue of nuisance caused by the overhanging branches; (5) The defendants are to pay the plaintiffs’ costs as agreed or assessed. The defendants are to have a Certificate under the Suitor’s Fund Act, if applicable.

CATCHWORDS: Appeal decision of Local Court Magistrate - trees on adjoining property - nuisance - Limitation Act - should different limitation periods arise with roots and branches or should the tree be treated as a whole

LEGISLATION CITED: Limitation Act 1969 (NSW) - s 54
Local Courts Act 1982 (NSW) - ss 73, 74, 75
Supreme Court Act 1970 (NSW) - s 68
Uniform Civil Procedure Rules (NSW) 2005 - Rule 46.3(1)
Clerk & Lindsell on Torts, 19th ed
The Law of Torts 9th ed
Neighbour and Neighbour Relations (NSWLRC Report 88, November 1998)

CASES CITED: Barton v Chhibber (1988) Aust Torts Reports 80-195
Davey v Harrow Corporation [1958] 1 QB 60
Leakley v National Trust for Places of Historic Interest or Natural Beautyc [1980] 1 QB 485
Noble v Harrison [1926] 2 KB 332
Peisley v Ashfield Municipal Council (1970) 21 LGRA 243
Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478
Sparke v Osborne (1908) 7 CLR 51 51
State of South Australia v Simionato & Ors [2005] SASC 412
The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Young v Wheeler (1987) Aust Torts Rep 80-126

PARTIES:
Gordon Gerald Lister - First Plaintiff
Margareeta Anne Field - Second Plaintiff
Sung Kye Hong - First Defendant
Sun Hee Hong - Second Defendant

FILE NUMBER(S): SC 14346/2005

COUNSEL: Mr Garry Smith - Plaintiffs
Mr Ian George - Defendants

SOLICITORS: A R Walmsley & Co - Plaintiffs
David Geddes - Defendants

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 637/2004

LOWER COURT JUDICIAL OFFICER : Schurr LCM

LOWER COURT DATE OF DECISION: 23 May 2005, and 23 August 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 31 OCTOBER 2006
14346/2005 - GORDON GERALD LISTER & ANOR v

SUNG KYE HONG & ANOR

JUDGMENT (Appeal decision of Local Court Magistrate

- trees on adjoining property; nuisance -
Limitation Act – should different limitation periods arise with roots and branches or should the tree be treated as a whole)

1 HER HONOUR: There are two decisions appealed against, one dated 23 May 2005 and the other dated 23 August 2005. By summons filed 19 September 2005, the plaintiffs seek firstly, an…

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.

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Details

Case: [2006] NSWSC 1135
Decision Date: 31 October 2006

CaseChat Overview and Summary

The case of Lister & Anor v Hong & Anor was heard in the New South Wales Supreme Court. The plaintiffs, Lister and another, sought to have trees removed from the defendants' property, Hong and another, on the basis that the trees constituted a nuisance. The plaintiffs claimed that the roots and branches of the trees extended onto their land, causing damage and inconvenience. The defendants argued that the plaintiffs' claim was barred by the Limitation Act, as it was brought beyond the relevant limitation period. The central issue before the court was whether different limitation periods should apply to the roots and branches of the tree, or whether the tree should be treated as a whole for the purposes of determining the limitation period.

The court found that the Limitation Act should be interpreted in a way that was consistent with the purpose of the legislation, which was to provide certainty and finality to property disputes. The court held that the tree should be treated as a whole for the purposes of determining the limitation period, and that the same limitation period applied to both the roots and branches of the tree. The court rejected the argument that different limitation periods should apply to different parts of the tree, as this would lead to uncertainty and potential for ongoing disputes. The court also found that the plaintiffs' claim was not barred by the Limitation Act, as the plaintiffs had acted reasonably and promptly in seeking to resolve the issue.

The court's decision has significant implications for property disputes involving trees and other natural features. It provides clarity on the application of the Limitation Act to such disputes, and ensures that property owners are not left exposed to ongoing claims and uncertainty. The decision also highlights the importance of acting promptly and reasonably in addressing potential nuisances on adjoining properties. The court's judgment provides a useful guide for property owners and lawyers dealing with similar disputes in the future.

The court ordered that the defendants remove the trees from the plaintiffs' property within a specified timeframe. The defendants were also ordered to pay the plaintiffs' legal costs. The court's decision provides a clear resolution to the dispute, and ensures that the plaintiffs' property rights are protected.

Orders