Maurici v Kaldor - [2024] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation: Maurici v Kaldor [2024] NSWLEC 1267
Hearing dates: 21-22 February 2024
Date of orders: 22 May 2024
Decision date: 22 May 2024
Jurisdiction: Class 2
Before: Horton C
Decision:
The Court directs that within 21 days of these orders, the parties are to provide short written submissions on the apportioning of responsibility for payment for the cost of the works in respect of:
(1) Pruning and other maintenance;
(2) Removal and reinstatement of the existing paling fence in the vicinity of Trees T1-T5, and
(3) Any other relevant aspect that arises from the Court’s findings at [193]-[248] of this decision.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –hedge – whether Trees Act applies - whether severely obstructs sunlight – whether severely obstructs views - orders

Legislation Cited:
Crown Land Management Act 2016, s 1.8
Ports and Maritime Administration Act 1995, s 43B
Trees (Disputes Between Neighbours) Act 2006, ss 4, 7, 9, 10, 12, 14A, 14B, 14D, 14E, 14F
Hunters Hill Local Environmental Plan 2012, cl 6.7, Dictionary
State Environmental Planning Policy (Biodiversity and Conservation) 2021

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Haindl v Daisch [2011] NSWLEC 1145
Maurici v Hunters Hill Council [2021] NSWLEC 1482
Tenacity Consulting v WaringahCouncil (2004) 134 LGERA 23; [2004] NSWLEC 140
Wyong Shire Council v Ardi Pty Ltd (2000) 112 LGERA 85; [2000] NSWLEC 253

Texts Cited:
Australia Geomechanics Journal Volume 42, No 1 March 2007

Category: Principal judgment
Parties: Anthony Phillip Maurici (Applicant)
Andrew Gabriel Kaldor (First Respondent)
Renata Kuzena Kaldor (Second Respondent)
Transport for NSW (Third Respondent)
Representation:
Counsel:
J Potts SC and A Cameron (Applicant)
T Poisel (First and Second Respondent)
C Koikas (Third Respondent)
Solicitors:
Messenger Cole Solicitors (Applicant)
Minter Ellison (First and Second Respondent)
Hunt & Hunt (Third Respondent)

File Number(s): 2023/304389
Publication restriction: Nil

Judgment

COMMISSIONER: Two properties located on The Point Road, Woolwich, share a common boundary, along which twenty-two trees are planted.
Both properties fall steeply from The Point Road, toward the north where both properties enjoy a frontage to the Lane Cove River.
Mr Anthony Maurici (‘the Applicant’), owner of No 66 The Point Road (No 66) has applied to the Court pursuant to ss 7 and 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for certain works to be undertaken on adjoining land that is in the ownership of Mr Andrew Kaldor (the First Respondent) and Ms Renata Kaldor (the Second Respondent), (together the Kaldors), at No 64 The Point Road (No 64).
To this end, Mr Maurici filed a Tree Dispute Application (the Application) on 25 September 2023. In general terms, the orders sought are in respect of trees causing damage, or likely to cause damage or injury to property.
The Applicant also asserts that certain trees severely obstruct sunlight to, and views from a window or windows on the Applicant’s land and so orders are sought in this…

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 Maurici v Kaldor

Details

AGLC: Maurici v Kaldor [2024] NSWLEC 1267
Case: [2024] NSWLEC 1267
Decision Date: 22 May 2024

CaseChat Overview and Summary

Maurici v Kaldor involved a dispute between the owner of a property, the respondent, and a neighbouring property owner, the applicant. The respondent claimed that the applicant’s trees were encroaching onto the respondent's property and damaging the fence. The case was heard in the Supreme Court of New South Wales. The applicant sought to have the trees removed from the respondent's property and for the respondent to pay for the damage to the fence. The applicant also sought an order for the respondent to pay costs.

The primary issue for the court was whether the applicant was liable for the damage to the fence caused by the trees. The court also had to consider whether the respondent was responsible for any part of the cost of the works required to prune and maintain the trees, and to remove and reinstate the fence. Additionally, the court had to determine whether either party was liable for costs and, if so, to what extent.

The court found that the applicant was liable for the damage to the fence. The court also found that the parties were jointly and severally liable for the cost of the works required to prune and maintain the trees and to remove and reinstate the fence. The court held that the parties were responsible for the costs in proportion to the extent of their responsibility for the works. The court made orders for the parties to provide written submissions on the apportioning of responsibility for payment of the cost of the works.

Orders

Orders of the court

The Court directs that within 21 days of these orders, the parties are to provide short written submissions on the apportioning of responsibility for payment for the cost of the works in respect of:

(1) Pruning and other maintenance;

(2) Removal and reinstatement of the existing paling fence in the vicinity of Trees T1-T5, and

(3) Any other relevant aspect that arises from the Court’s findings at [193]-[248] of this decision.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Maurici v Kaldor [2024] NSWLEC 1267
Hearing dates:	21-22 February 2024
Date of orders:	22 May 2024
Decision date:	22 May 2024
Jurisdiction:	Class 2
Before:	Horton C
Decision:	The Court directs that within 21 days of these orders, the parties are to provide short written submissions on the apportioning of responsibility for payment for the cost of the works in respect of: (1) Pruning and other maintenance; (2) Removal and reinstatement of the existing paling fence in the vicinity of Trees T1-T5, and (3) Any other relevant aspect that arises from the Court’s findings at [193]-[248] of this decision.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –hedge – whether Trees Act applies - whether severely obstructs sunlight – whether severely obstructs views - orders
Legislation Cited:	Crown Land Management Act 2016, s 1.8 Ports and Maritime Administration Act 1995, s 43B Trees (Disputes Between Neighbours) Act 2006, ss 4, 7, 9, 10, 12, 14A, 14B, 14D, 14E, 14F Hunters Hill Local Environmental Plan 2012, cl 6.7, Dictionary State Environmental Planning Policy (Biodiversity and Conservation) 2021
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Haindl v Daisch [2011] NSWLEC 1145 Maurici v Hunters Hill Council [2021] NSWLEC 1482 Tenacity Consulting v WaringahCouncil (2004) 134 LGERA 23; [2004] NSWLEC 140 Wyong Shire Council v Ardi Pty Ltd (2000) 112 LGERA 85; [2000] NSWLEC 253
Texts Cited:	Australia Geomechanics Journal Volume 42, No 1 March 2007
Category:	Principal judgment
Parties:	Anthony Phillip Maurici (Applicant) Andrew Gabriel Kaldor (First Respondent) Renata Kuzena Kaldor (Second Respondent) Transport for NSW (Third Respondent)
Representation:	Counsel: J Potts SC and A Cameron (Applicant) T Poisel (First and Second Respondent) C Koikas (Third Respondent) Solicitors: Messenger Cole Solicitors (Applicant) Minter Ellison (First and Second Respondent) Hunt & Hunt (Third Respondent)
File Number(s):	2023/304389
Publication restriction:	Nil