CITATION: Lister & Anor v Hong & Anor [2006] NSWSC 1135 HEARING DATE(S): 27 July 2006
JUDGMENT DATE :
31 October 2006JURISDICTION: 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 80-126PARTIES: Gordon Gerald Lister - First Plaintiff
Sung Kye Hong - First Defendant
Margareeta Anne Field - Second Plaintiff
Sun Hee Hong - Second DefendantFILE NUMBER(S): SC 14346/2005 COUNSEL: Mr Garry Smith - Plaintiffs
Mr Ian George - DefendantsSOLICITORS: 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 DIVISIONASSOCIATE JUSTICE HARRISON
14346/2005 - GORDON GERALD LISTER & ANOR vTUESDAY, 31 OCTOBER 2006
JUDGMENT (Appeal decision of Local Court Magistrate
SUNG KYE HONG & ANOR
- 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…
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- Case
- [2006] NSWSC 1135
- Decision Date
CaseChat Overview and Summary
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.
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