Radford v Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust

In Radford v Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust, Dr Kathryn Michelle Radford, the owner of a property at 122 Haig Road, Auchenflower, sought an order for the removal of a tree on the neighbouring property, owned by Neverfail Pty Ltd as Trustee for the Harris Siksna Family Trust, as well as Andrew John Wilkinson and Ilma Raita Wilkinson as trustees for the Wilma Family Trust. The tree in question, a Celtis Sinensis, obscured Dr Radford's view of the city skyline from her property. Additionally, the tree was a declared pest. Dr Radford had previously sought and been granted an order for the removal of another tree on the same neighbouring property. The tree-keepers argued that the tree provided shade to two adjoining properties, including Dr Radford's. The tree-keepers also argued that the view Dr Radford had purchased the property with had been obscured prior to her purchase, as her house had been raised and moved on the block. The tree-keepers' representative was a solicitor who resided on the adjoining property and sought her costs.

The key legal issues the court was required to decide were whether the view Dr Radford had purchased the property with had been obscured at the time of purchase, and whether the tree-keepers had a legitimate reason to maintain the tree. The court also had to consider whether the tree-keepers' representative was entitled to her costs. The court found that the view had indeed been obscured at the time of Dr Radford's purchase, but that this did not negate her entitlement to the order. The court found that the tree-keepers had not established a legitimate reason to maintain the tree, particularly given that it was a declared pest and could pose a risk to Dr Radford's property and safety. The court declined to award the tree-keepers' representative her costs, finding that her costs were not reasonably incurred.

The court ordered that Dr Radford arrange for the removal of the Celtis Sinensis from the neighbouring property and for the planting of replacement trees if requested. The court also ordered that the tree-keepers give access to the property for the removal and planting, and that Dr Radford give notice to the tree-keepers of the intended removal and planting. The court did not order either party to pay costs.