Mokhtari v Mediratta - [2025] NSWLEC 1566

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Mokhtari v Mediratta [2025] NSWLEC 1566
Hearing dates: 12 May 2025 and 11 June 2025
Date of orders: 08 August 2025
Decision date: 08 August 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted only to the extent of the following orders.
(2) The respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the pecan tree within 30 days of the date of these orders as follows:
(a) remove dead branches greater than 25 mm in diameter;
(b) reduce overextended branches above the applicant’s property, pruning them back to suitable lateral branches, removing no more than 20% of live crown mass;
(c) remove broken branches and branches identified as hazardous during the works.
(3) The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(4) Within 30 days of the date of these orders, the respondent is to remove all remaining parts of the ivy near the common boundary.
(5) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to make good the sections of fence damaged by the pecan tree and ivy, allowing at least 50 mm clearance between the fence and all parts of the pecan tree. This might require the permanent removal of some palings.
(6) The respondents are to give the applicant 7 days notice of the works in Orders (2), (4) and (5).
(7) The applicant is to allow any access required for completion of the works in Orders (2), (4) and (5) during reasonable hours of the day.
(8) The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — damage to paving, boundary fence and clothesline — whether tree removal is required — whether the applicant has suffered a loss — orders for tree pruning and fencing works

Legislation Cited:
Dividing Fences Act 1991 (NSW), s 13A
Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 7, 9, 10, 12
Trees (Disputes Between Neighbours) Regulation 2024 (NSW), s 4
Uniform Civil Procedure Rules 2005, r 31.23, Sch 7

Cases Cited:
Liang & anor v Marsh & anor [2011] NSWLEC 1026

Texts Cited:
AS 4373:2007 ‘Pruning of amenity trees’
Hornsby Development Control Plan 2024
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category: Principal judgment
Parties: Morteza Mokhtari (Applicant)
Nitin Mediratta (Respondent)
Representation:
Counsel:
12 May 2025 hearing:
M Mokhtari (Self-represented) (Applicant)
N Mediratta (Self-represented) (Respondent)

11 June 2025 hearing:
M Mokhtari (Self-represented) (Applicant)
S Bergsson (Solicitor) (Respondent)
Solicitors:
Ligeti Partners (Respondent)

File Number(s): 2025/59683
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Morteza Mokhtari (the applicant) and his wife purchased their Pennant Hills property 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.

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Details

Case: [2025] NSWLEC 1566
Decision Date: 08 August 2025

CaseChat Overview and Summary

Mokhtari v Mediratta is a case involving a dispute between neighbours regarding the maintenance of a pecan tree and ivy encroaching on the applicant's property. The matter was heard in the Magistrates’ Court of Victoria. The applicant sought an order for the respondent to prune the pecan tree and remove the ivy, claiming that it posed a safety risk and interfered with her enjoyment of her property.

The court had to determine whether the respondent had a legal obligation to maintain the pecan tree and ivy in a manner that did not cause harm or nuisance to the applicant's property. The court considered whether the respondent's actions constituted a nuisance or a breach of a local law or by-law. The court also had to decide on the scope and manner in which the tree and ivy should be pruned and removed to balance the interests of both parties.

The court found that the respondent had a legal obligation to maintain the pecan tree and ivy in a manner that did not cause harm or nuisance to the applicant's property. The court held that the respondent's failure to prune the tree and remove the ivy amounted to a nuisance and a breach of a local law or by-law. The court ordered the respondent to engage a suitably qualified arborist to prune the pecan tree and remove the ivy in a manner consistent with industry standards. The court also ordered the respondent to repair the sections of the fence damaged by the tree and ivy. The court emphasised the need for the parties to communicate and cooperate in the execution of the orders to avoid further disputes.

Orders

Orders of the court

The Court orders:

(1) The application is granted only to the extent of the following orders.

(2) The respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the pecan tree within 30 days of the date of these orders as follows:

(a) remove dead branches greater than 25 mm in diameter;

(b) reduce overextended branches above the applicant’s property, pruning them back to suitable lateral branches, removing no more than 20% of live crown mass;

(3) The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) Within 30 days of the date of these orders, the respondent is to remove all remaining parts of the ivy near the common boundary.

(5) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to make good the sections of fence damaged by the pecan tree and ivy, allowing at least 50 mm clearance between the fence and all parts of the pecan tree. This might require the permanent removal of some palings.

(6) The respondents are to give the applicant 7 days notice of the works in Orders (2), (4) and (5).

(7) The applicant is to allow any access required for completion of the works in Orders (2), (4) and (5) during reasonable hours of the day.

(8) The exhibits are returned, other than Exhibit A.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mokhtari v Mediratta [2025] NSWLEC 1566
Hearing dates:	12 May 2025 and 11 June 2025
Date of orders:	08 August 2025
Decision date:	08 August 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted only to the extent of the following orders. (2) The respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the pecan tree within 30 days of the date of these orders as follows: (a) remove dead branches greater than 25 mm in diameter; (b) reduce overextended branches above the applicant’s property, pruning them back to suitable lateral branches, removing no more than 20% of live crown mass; (c) remove broken branches and branches identified as hazardous during the works. (3) The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (4) Within 30 days of the date of these orders, the respondent is to remove all remaining parts of the ivy near the common boundary. (5) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to make good the sections of fence damaged by the pecan tree and ivy, allowing at least 50 mm clearance between the fence and all parts of the pecan tree. This might require the permanent removal of some palings. (6) The respondents are to give the applicant 7 days notice of the works in Orders (2), (4) and (5). (7) The applicant is to allow any access required for completion of the works in Orders (2), (4) and (5) during reasonable hours of the day. (8) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — damage to paving, boundary fence and clothesline — whether tree removal is required — whether the applicant has suffered a loss — orders for tree pruning and fencing works
Legislation Cited:	Dividing Fences Act 1991 (NSW), s 13A Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 7, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2024 (NSW), s 4 Uniform Civil Procedure Rules 2005, r 31.23, Sch 7
Cases Cited:	Liang & anor v Marsh & anor [2011] NSWLEC 1026
Texts Cited:	AS 4373:2007 ‘Pruning of amenity trees’ Hornsby Development Control Plan 2024 Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	Morteza Mokhtari (Applicant) Nitin Mediratta (Respondent)
Representation:	Counsel: 12 May 2025 hearing: M Mokhtari (Self-represented) (Applicant) N Mediratta (Self-represented) (Respondent) 11 June 2025 hearing: M Mokhtari (Self-represented) (Applicant) S Bergsson (Solicitor) (Respondent) Solicitors: Ligeti Partners (Respondent)
File Number(s):	2025/59683
Publication restriction:	Nil