Pollachini v Estate of the late Peter Dimitropoulos (No 2)

[2020] NSWLEC 1643

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pollachini v Estate of the late Peter Dimitropoulos (No 2) [2020] NSWLEC 1643

Hearing dates:

6 August 2020

Date of orders:

15 December 2020

Decision date:

15 December 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1)   The respondent shall provide access to their property, required for the undertaking of these works during reasonable working hours, upon receipt of at least 72 hours’ notice provided to them, or their property agent, by email.

(2)   The respondent shall reimburse Ms Pollachini the sum of $5,060.00, via Electronic Funds Transfer (EFT) or Bank Cheque, within 14 days of receipt of a copy of the paid invoice from one of the three contractors, emailed to either the respondents, or their property agent.

(3)   Should the works not be completed within six months of the date of these orders, Orders (1) and (2) shall lapse.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to driveway and fence – whether damage to house is caused by the tree

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Pollachini v Estate of the late Peter Dimitropoulos [2020] NSWLEC 1463

Category:

Principal judgment

Parties:

Christine Pollachini (Applicant)
Estate of the late Peter Dimitropoulos (First Respondent)
Koralia Dimitropoulos (Second Respondent)

Representation:

C Pollachini (Litigant in person) (Applicant)
A Dimitropoulos (Agent) (Respondents)

File Number(s):

2020/157642

Publication restriction:

No

Judgment

Background

1. In the judgment of Pollachini v Estate of the Late Peter Dimitropoulos [2020] NSWLEC 1463 (Pollachini), made under the jurisdiction of s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), on 29 September 2020, the Court ordered that:

“(1) The application is granted.

(2) The respondents shall reimburse Ms Pollachini the sum of $250.00, via Electronic Funds Transfer (EFT) or Bank Cheque, within 14 days of receipt of a copy of the paid invoice from On Road Plumbing Pty Ltd, dated April 2020, emailed to either the respondents, or the agent.

(3) The applicant shall procure three itemised quotations from contractors, with all appropriate insurances, to grind away the tree’s stump to a depth of approximately 500 mm below the soil surface, including any junction between the stump and roots growing towards the applicant’s property, and remove all stump grindings from the site.

(4) The applicant shall procure three itemised quotations, from licenced builders or similar licenced contractors, with all appropriate insurances, to:

(a) Remove a length of approximately five metres of the cracked and raised concrete edging, and the concrete driveway strip, to junctions in the concrete, beyond which the driveway strip is relatively flat and level in each direction.

(b) Remove roots greater than 25 mm in diameter growing into the soil area in the applicant’s property, between the stump and the boundary side of the concrete driveway strip nearest to the house, down to a maximum depth of 500mm.

(c) Repair the fence and gatepost, such that all palings are reinstated or replaced, the fence is rendered vertical, strong and stable, and the gatepost is re-positioned or replaced, such that the gate is stable and fully functional.

(d) Re-instate the concrete garden edging, and approximately five metres of the concrete driveway strip nearest to the boundary, on a like for like basis, and in compliance with current building codes.

(e) Re-instate the area between the driveway strips with appropriate soil mix and turf, over a distance no greater than the length of the reinstated concrete driveway.

(f) Remove all rubbish from the concrete reinstatement, fence repairs, stump and root removal, and soil and turf reinstatement, from the site.

(5) Within 45 days of the date of these orders, the applicant shall provide the Court, and the respondents or their agent, copies of the quotations for these works. If due to COVID-19, or another reason, the applicant cannot meet this deadline, she shall contact the Court prior.”

2. As per Order (5), Ms Pollachini provided the required quotations to the Court within the specified 45-day time period, and confirmed that she had also provided such quotations to the respondents or their agent.

3. The applicant also confirmed that she had received payment of $250 from the respondent, as specified in Order (2).

4. Quotations were provided by:

1. SMJ Construction Group of Revesby, in the sum of $5,060.00 including GST. The works required were clearly specified, and addressed all requirements as per Orders (3)–(4).

2. CDM Corp of Prestons, in the sum of $7,931.00 including GST. The works required were less clearly specified, and the quote made allowance for additional costs emanating from a range of possible variations, but still, however, address all requirements as per Orders (3)–(4).

3. HK Civil Works of Arncliffe, in the sum of $8,800.00 including GST. The works required were specified with insufficient detail to confidently rely upon, but this contractor also appears to be licensed and provided all appropriate insurances, as required.

Conclusion

5. As noted at [44] of Pollachini, “Upon receipt of quotations, which meet the conditions of the orders, the Court shall base the quantum of compensation, payable by the respondents, on the least expensive of the three quotations”.

6. The cheapest quotation was provided by SMJ Construction Group of Revesby, and it also most clearly specified the required works. This quotation noted an expiry date of 25 November 2020, less than one month after the date that the quote was submitted to the applicant.

7. Notwithstanding that this date has passed, it is the expectation of the Court, under the circumstances surrounding the requirements for these works, that SMJ Construction Group would honour the quoted price of $5,060.00 including GST, provided the works are organised as soon as reasonably possible after the date of this judgment.

Orders

8. The Court orders that:

1. The respondent shall provide access to their property, required for the undertaking of these works during reasonable working hours, upon receipt of at least 72 hours’ notice provided to them, or their property agent, by email.

2. The respondent shall reimburse Ms Pollachini the sum of $5,060.00, via Electronic Funds Transfer (EFT) or Bank Cheque, within 14 days of receipt of a copy of the paid invoice from one of the three contractors, emailed to either the respondents, or their property agent.

3. Should the works not be completed within six months of the date of these orders, Orders (1) and (2) shall lapse.

……………………………..

J Douglas

Acting Commissioner of the Court

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Decision last updated: 15 December 2020