Redin v Dechellis Homes Pty Ltd - [2020] SADC 63

District Court of South Australia
(Civil)
REDIN v DECHELLIS HOMES PTY LTD & ORS
[2020] SADC 63
Judgment of His Honour Judge Chivell
28 May 2020
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
TORTS - NUISANCE - DEFENCES - GENERALLY
TORTS - TRESPASS
Claim for damages – action in negligence, nuisance and trespass to land. Large cypress hedge straddling boundary between plaintiff’s property and property of neighbour. Pursuant to an agreement with neighbour, the second and third defendants agreed that portion of hedge on neighbour’s property would be removed. Plaintiff alleges that work performed negligently and caused damage to his portion of hedge to the extent that he was forced to remove it. Plaintiff claims damages for diminution in value of his property, and/or cost of replacement. Second defendant’s plea in accord and satisfaction, or alternatively in estoppel, not made out. Damages assessed at $30,000. Contribution claims between second and third defendants dismissed.
Held: Plaintiff has not made a case in negligence, nuisance or trespass. Claim pursuant to s 16(2) Fences Act 1975 (SA) not pursued. Plaintiff’s claim dismissed.
Fences Act 1975 (SA s 16(2); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6, s 8, referred to.
Masters v Pollie (1620) 2 Roll Rep 141; 81 ER 712; Holder v Coates (1827) M & M 112; 173 ER 1099; Carr v Sourlos (1994) 6 BPR 13,626; Elliott v London Borough of Islington [1991] EGLR 167; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Matthews v Christie [2001] SADC 9, considered.

REDIN v DECHELLIS HOMES PTY LTD & ORS
[2020] SADC 63
Introduction
Case Against the First Defendant
Was any of the hedge growing on the plaintiff’s land?
Chronology
Agreement not to Sue
Negligence
Was there a duty of care?
Breach of Duty of Care – Royal Park Salvage
1. Lack of qualifications and skill of Royal Park Salvage to do the work
2. Failure to use a cherry picker
3. Failure to comply with the advice of Mark Elliott
4. Continuation of work after the ‘partial collapse’ of the hedge
5. Use of an excavator
Breach of Duty of Care – De Chellis Constructions
1. Failure to engage an arborist
2. Failure to instruct Royal Park Salvage to comply with the advice of Mark Elliott
3. Failure to use a cherry picker
4. Continuation of work after the ‘partial collapse’ of the hedge
5. Use of an excavator
Summary of Findings as to Duty of Care
Causation of Loss
Nuisance
Trespass
Fences Act
Contribution
Quantum of Loss
Diminution in Property Value
The Cost of Replacement
Orders

REDIN v DECHELLIS HOMES PTY LTD & ORS
[2020] SADC 63
Introduction

This is a claim for damages by the plaintiff, Mr Christopher Redin, arising from the loss of a large cypress hedge at the rear of his property at 22 Craighill Road, St Georges.
The hedge was on the boundary between Chris Redin’s house and the house to the rear, 11 Wootoona Terrace, St Georges. That house was owned by Mr Ramin Noushabadi.
Mr Mario Dechellis and his wife, Mrs Maria Dechellis, were the owners of the house next door to Chris Redin’s house, at 24 Craighill Road, St Georges. Mario Dechellis had, through a company of which he was a director, De Chellis Constructions Pty Ltd, the third defendant, engaged Royal Park Salvage Pty Ltd (the second defendant) to demolish the house and clear the block for development.[1]
[1] The third defendant, De Chellis Constructions, admits these facts: Second Defence [2.2], [2.3], [6.1]. The third defendant traded as De Chellis Homes: (Second Defence [5A.1]).
The property at 24 Craighill Road also shared its rear boundary with 11 Wootoona Terrace, and the hedge straddled that boundary.
In the course of clearing the site, Royal Park Salvage demolished the hedge between 24 Craighill Road and 11 Wootoona Terrace. There was a dispute between an employee of De Chellis Constructions, Mr Milos Jurkovic, and an employee of Royal Park Salvage, Mr Robert Young, as to whether the removal of any hedge on Ramin Noushabadi’s property was within the scope of demolition works agreed between them.[2] Ramin Noushabadi protested, because he did not give Royal Park Salvage permission to demolish his hedge. That dispute was resolved and, as part of the settlement, it was agreed that Royal Park Salvage would remove that part of the hedge which remained on Ramin Noushabadi’s land, that is, the other half of the hedge which was on the boundary between 11 Wootoona Terrace and 22 Craighill Road, Chris Redin’s property. This, in very general terms, involved cutting the hedge along its long axis, that is, along the boundary, leaving Chris Redin’s portion, if there was one, of the hedge intact. The defendants disputed that any of the hedge had been planted on Chris Redin’s side of the boundary.
[2] Third defendant’s Second Defence, [7.3].
This plan was put into effect on 30 June 2017. During the course of that work, part of the hedge was damaged to the extent that Chris Redin decided to remove what remained of the hedge on his side of the boundary. At his request, Royal Park Salvage removed the rest of the hedge on that same day.
The causes of action invoked are:
·       negligence;
·       nuisance;
·       trespass; and
· section 16(2) of the Fences Act 1975 (SA).
Chris Redin claims damages on the basis of the diminution in the value of his property, or on the basis of the cost of replacing the hedge, or both.
Case Against the First Defendant
It is noted that the pleadings against the first and third defendants are interchangeable. Ms Stanley, counsel for the first and third defendants, submits that there is no case to answer against the first defendant, Dechellis Homes Pty Ltd. It is admitted that Mario and Maria Dechellis, as owners of 24 Craighill Road, engaged De Chellis Constructions, through its registered business name Dechellis Homes, to arrange the demolition of the old house at 24 Craighill Road. It is also admitted that Milos Jurkovic, an employee of De Chellis Constructions, engaged Royal Park Salvage to carry out the demolition. Finally, it is admitted that De Chellis Constructions was a party to the agreement with Ramin Noushabadi and Royal Park Salvage dated 1 March 2017, pursuant to which the work performed on 30 June 2017 was being performed.[3] De Chellis Constructions does not admit that it was responsible for the work being performed, but that is another issue which will be dealt with later in these reasons.
[3] Closing submissions; T 977.
There is no evidence that the first defendant played any role in the events the subject of this action.
I accept Ms Stanley’s submission. Mr Harris QC, counsel for Chris Redin, submitted that the developer of 24 Craighill Road was the first defendant.[4] However, there is no evidence that the first defendant was a party to the agreement. Milos Jurkovic was not an employee of the first defendant. I accept Mr Harris’ submission that the Development Application for the 24 Craighill Road property[5] and the letter to Mr Redin giving him notice of that application referred to the first defendant as the developer, but that does not make it a party to the agreement, nor does it make the first defendant liable in negligence for the

actions of other parties. Mr Harris submitted that I should find, by reason of Milos Jurkovic’s evidence, that:[6]
(T)he First Defendant (Dechellis Homes P/L) as the developer of the 24 Craighill property engaged the Third Defendant (De Chellis Constructions / “Dechellis Homes”) to act as its agent, through Milos Jurkovic, to engage RPS as a subcontractor to perform the demolition works on the 24 Craighill property pursuant to the Demolition Application;
I reject that submission. There is nothing in Milos Jurkovic’s evidence that would support such a finding against the first defendant.
[4]    Closing submissions, [8].
[5]    Exhibit P34.
[6]    Closing submissions, [39.1].
The case against the first defendant is dismissed.
Was any of the hedge growing on the plaintiff’s land?
In paragraph 7 of the overview to his closing submissions, Mr Belperio, counsel for Royal Park Salvage, asserted:
The roots of the hedge were wholly within the boundaries of the 11 Wootoona Tce Property, albeit that part of the vegetation was growing over the boundary between that property and the Plaintiff’s Property.
Later in his closing submissions,[7] Mr Belperio took a more limited approach:
… had (Mark Elliott) examined the hedge carefully, he would have concluded that:
(a)     the vast majority of the hedge was growing from 11 Wootoona Terrace;
(b)     to the extent that there were trees growing on the Plaintiff’s property, they were trees with common stumps to trees on the 11 Wootoona Terrace Property;
(c)     even if the trees growing on the Plaintiff’s property could survive after the trees on the 11 Wootoona Terrace Property were removed, there would be very little of the hedge left on the Plaintiff’s property;
(d)     …
(e)     …
[7] At [58].
Ms Stanley also adopted a more limited stance in her closing submissions:[8]
All, or at least the vast majority, of the trunks that made up the hedge on the boundary of 22 Craighill and 11 Wootoona were located on Mr Noushabadi’s property. There were places where there were large gaps between any trunks or branches located on the 22 Craighill side of the boundary.
[8] At [22.1].
I agree with the following propositions of law put by Mr Belperio:
1.A tree belongs to the person on whose land it was planted;[9]
2.Even where branches or roots spread across the boundary onto adjoining land, they belong to the person on whose side the tree was planted;[10]
3.If the hedge was planted entirely on Ramin Noushabadi’s property, Chris Redin had no ownership or other rights to prevent it being removed.
4.The onus is on Chris Redin to prove that part of the hedge had been planted on his land.
[9] Masters v Pollie (1620) 2 Roll Rep 141; 81 ER 712.
[10] Holder v Coates (1827) M & M 112 at 113; 173 ER 1099 at 1100; Carr v Sourlos (1994) 6 BPR 13,626; Elliott v London Borough of Islington [1991] EGLR 167.
The plaintiff submits that he has proved that some of the trees constituting the hedge were growing on his land. Chris Redin gave evidence that:
·he identified three survey pegs which indicated the position of the boundary to his property, and he ran a red string line along the boundary (through the hedge);[11]
·by reference to the string line, multiple trunks were growing on his side of the boundary;
·he pointed out the string line to Mr Robert Young, the Royal Park Salvage employee who attended the site on 30 June 2017, and Robert Young worked to that line;[12]
·following removal of the hedge, tree stumps were visible on both sides of the string line, and were visible in videos he took.[13]
[11] T 131, 132, T 155-58.
[12] T 207, 208, 209. Robert Young’s evidence confirmed this (T 837).
[13] Exhibit P2, tab 77.
Chris Redin’s father, Mr Geoffrey Redin, gave evidence that he was familiar with the boundary because, as an architect, he had been involved in certain building work on the garage at the rear of Chris Redin’s property, and he had worked inside the hedge repairing a cyclone wire fence.[14]
[14] T 505-06.
Mr Mark Elliott, an arborist engaged by De Chellis Constructions, visited the site on 21 June 2017. He noted that there were ‘individual trees growing on each side of the fence line’,[15] by which he clearly meant on both sides of the boundary. He was unable to say what proportion of the trees constituting the hedge were on Chris Redin’s property, but there were ‘some on both sides’.[16]
[15] T 539.
[16] T 568.
I agree with the submission of Mr Harris QC that Mark Elliott’s evidence should be accepted because the position of the boundary was central to his task of determining whether Ramin Noushabadi’s portion of the hedge could be removed without damage to Chris Redin’s portion.
I do not agree with Mr Harris’ submission that evidence of the presence of roots in the ground on Chris Redin’s side of the boundary corroborates the evidence that trees were planted on his side. The roots could have originated on either side of the boundary.
Ramin Noushabadi, a witness called as part of the plaintiff’s case, gave the following evidence on this topic:[17]
A.They were all on my - quite a bit of it was, because I never, until it was cut I wasn't aware of it, but the majority was on my property.
Q.By far the vast majority.
A.Yes, looking for the - yes.
Q.Close to everything.
A.Yes. I can't agree the number of stumps that was there, but judging by the number of stumps that is there whatever was removed it was on my property, yes.
Q.And you know that having regard to the survey you had done.
A.That's correct.
[17] T 95-96.
Mr Damjan Jurkovic, the onsite supervisor for Royal Park Salvage, regarded the boundary as being indicated by the string line and instructed Robert Young to work to that as an indicator of the boundary. Robert Young saw the survey pegs[18] and Damjan Jurkovic confirmed that he regarded the string line as indicating the boundary.[19]
[18] T 859.
[19] T 650.
Milos Jurkovic, De Chellis Constructions’ supervisor and a distant[20] cousin of Petar Jurkovic, the Managing Director of Royal Park Salvage, also gave evidence that he regarded the hedge as having stumps on both sides of the boundary. He said that the purpose of the arborist’s report was to prevent damage to ‘Mr Redin’s hedge’[21] Further, he agreed[22] that the method proposed by Mark Elliott could allow for trees to be taken down on Rami Noushabadi’s side while preserving those on Chris Redin’s side.
[20] He said he was a ‘second or possibly third’ cousin (T 885).
[21] T 948.
[22] At T 953.
There would have been no point in ordering the report from Mark Elliott if there was any doubt about whether there were stumps on Chris Redin’s land. I have no doubt that Robert Young, Damjan Jurkovic and Milos Jurkovic would have been quick to tell Chris Redin to mind his own business if not. They were all experienced in building and demolition (perhaps Damjan Jurkovic less so), and reading survey pegs would have been part of their everyday work. A text message sent from Milos Jurkovic to Damjan Jurkovic on 30 June 2017 illustrates that they accepted that there were trees growing on Chris Redin’s land:[23]
We dont remove rest of chris hedges [sic] on his block. C u at 2ish cuz.
[23] Exhibit P1, p 117.
Finally, there is the evidence of Mr David Struthers, a licensed surveyor who provided three separate reports for the plaintiff. David Struthers identified markings indicating the boundary, including metal pins offset from the boundary by one metre, and said that the survey pegs referred to previously were correctly positioned in relation to those pins.[24] These pins and pegs had been placed in those positions by another firm of surveyors engaged by Ramin Noushabadi in 2011.
[24] Part of Exhibit P17, report dated 21 February 2020, p 4.
David Struthers also conducted his own survey for the purposes of this litigation. His detailed report, dated 20 February 2020, noting the erection of a new ‘good neighbour’ Colorbond fence on the boundary, is part of Exhibit P17. He determined that the new fence is correctly constructed on the boundary, placed consistently with the pegs left there by the previous surveyors in 2011.
I find that the hedge in question consisted of trees growing on either side of the boundary between Chris Redin’s property and Ramin Noushabadi’s property. Accordingly, Chris Redin has a legal interest in some of the trees constituting the hedge, those trees growing on his side.
There is no evidence as to how many trees were growing on Chris Redin’s side or, to put it another way, how many would have been left after the trees on Ramin Noushabadi’s side had been removed, how far apart they were, how tall or heavily foliaged they were.
Chronology
In order that the issues in this litigation might be understood in context, it is necessary to set out a brief chronology which led to the fateful events of 30 June 2017.
April 2016 – Mr and Mrs Dechellis engaged De Chellis Constructions, trading as De Chellis Homes, to clear the 24 Craighill Road site.[25]
[25] Third defendant’s Second Defence, [2.1]-[2.2].
21 September 2016 – Royal Park Salvage provided a quotation for site clearance at 24 Craighill Road to De Chellis Constructions.[26]
[26] Exhibit P1, p. 50.
5 October 2016 – Milos Jurkovic for De Chellis Constructions accepted the quotation.[27]
[27] Exhibit P1, p. 46.
19 October 2016 – Royal Park Salvage commenced site clearance at 24 Craighill Road. Robert Young was operating the excavator. In the process of clearing the site, that part of the hedge between 24 Craighill Road and 11 Wootoona Terrace was completely removed. This led to a dispute between the second and third defendants as to whether Robert Young or Milos Jurkovic was at fault. Nothing turns on this. The relevant fact is that Ramin Noushabadi’s portion of the hedge between his property and 24 Craighill Road was completely destroyed without his consent. Previously, the hedge covered the entirety of Ramin Noushabadi’s rear boundary. After this incident, the hedge covered only about half of it, that is, the hedge between 22 Craighill Road and Ramin Noushabadi’s land.
18 November 2016 – Ramin Noushabadi wrote a letter seeking redress for the damage to his hedge.
22 November 2016 – Milos Jurkovic forwarded a copy of Ramin Noushabadi’s letter to Mr Ed Thomas of Royal Park Salvage.[28]
[28] Exhibit P1, p. 68.
28 November 2016 – Milos Jurkovic sent a follow-up email to Ed Thomas as he had received no response. Milos Jurkovic’s comment that he had ‘had my left testicle removed by (his) boss’[29] is a clear indication that De Chellis Constructions accepted some responsibility, or at least some risk, arising out of the events of October 2016.
[29] Exhibit P1, p. 67.
1 March 2017 – after some negotiation, a document described as an agreement was executed.[30] The signatories were Ramin Noushabadi, Ed Thomas representing Royal Park Salvage and Milos Jurkovic ‘on behalf of the owner of 24 Craighill Road’. De Chellis Constructions initially denied that it was a party to the agreement.[31] However, De Chellis Constructions has abandoned this position and now accepts that it was a party.[32]
[30] Exhibit P1, p. 60.
[31] Second Defence, [15].
[32] Written closing submissions, [13].
Although described as an agreement, the document takes the form of a letter to Ramin Noushabadi. It was drafted by Milos Jurkovic[33] and was copied to Ed Thomas of Royal Park Salvage. It reads:
[33] T 913-14.
Dear Ramin,
As per our discussion on site Monday 13^th February, please find attached a quote for fencing to the rear of the property from Con at Exotic Gardens.
As agreed, we have recommended that the cost of $1,895.36 incl gst be reimbursed to yourself and will contribute to the re-fence. We have done so as I believe you are dealing direct with Exotic Gardens for additional retaining wall works.
Further scope of works are:
.Removal of the remaining hedge along rear fence line by RP Salvage.
.Removal of all stumps by RP Salvage.
.Upon the completion of fencing works, the supply and install of semi-mature Photinia Robust to a height of 1m and approx. 1m apart.
We, the undersigned agree to the conditions and accept the terms within this letter.
Although this was not explicitly stated, it is implicit in the agreement that Ramin Noushabadi accepted the above terms in settlement of any claim he may have had arising from the loss of part of his hedge.
7 June 2017 – Ramin Noushabadi advised Chris Redin by text message[34] that he had arranged for Royal Park Salvage to remove the remaining hedge from his property. Chris Redin responded that there should be a survey done. Ramin Noushabadi advised that there had been a survey and the boundary was marked. Chris Redin responded that if any trees on his side were cut, he would ‘jointly sue’ those involved.
[34] Exhibit P28, pp 1-3.
12 June 2017- by inference from a later text message from Chris Redin to Ramin Noushabadi on 16 June 2017, Chris Redin and Ramin Noushabadi met on this day to discuss how the work would proceed.
16 June 2017 – Ramin Noushabadi advised Chris Redin that work would proceed on 17 June.[35] In a subsequent exchange of messages, Chris Redin expressed concern about the proposed use of an excavator, and that this was ‘totally different to what we discussed Monday’ (i.e. 12 June 2017).
[35] Exhibit P28, p. 4.
17 June 2017 – Mr Matthew Allman of Royal Park Salvage attended the site to commence the work pursuant to the 1 March 2017 agreement. Damjan Jurkovic attended to brief Matthew Allman.[36] During the trial, Mr Harris QC sought to challenge the veracity of Damjan Jurkovic’s evidence as to how he instructed Matthew Allman to proceed.[37] This complex analysis of events is pointless in view of what followed.
[36] T 642.
[37] Written closing submissions,[126]-140].
Ultimately, as a result of Chris Redin’s objections to the use of an excavator, it was determined that work would not proceed that day.
19 June 2017 – Chris Redin sent an email to Ramin Noushabadi, Milos Jurkovic, Damjan Jurkovic and Petar Jurkovic advising that he had received legal advice. He then advised that it is ‘our’ view[38] ‘that this job be undertaken by an arborist not a demolition firm’ and that ‘an excavator is not the correct tool for the job in my opinion’.[39]
[38] By which I infer that he meant his and his lawyers’ view.
[39] Exhibit P1, pp 91-2.
23 June 2017 – a report from Mark Elliott, an arborist engaged by Milos Jurkovic, was obtained. This is another clear indication that De Chellis Constructions regarded itself as involved in, and responsible for, the proposed works.
24 June 2017 – Mark Elliott’s report was circulated by email to Chris Redin, Ramin Noushabadi and Damjan Jurkovic by Milos Jurkovic.[40] The report stated succinctly:
[40] Exhibit P1, p. 91.
The best methodology to remove the hedge along the rear of 11 Wootoona Terrace, St Georges property is to cut the Conifer Hedge to approximately ground level and then undertaking a shallow grind of the tree stumps/tree roots.[41]
[41] Exhibit P1, p. 90.
(My underlining)
Importantly, Mark Elliott did not say that:
·the operation should be performed by an arborist;
·an excavator should not be used;
·a cherry picker or other elevating equipment should be used.
Milos Jurkovic’s email to Chris Redin and Ramin Noushabadi of 24 June 2017 states:[42]
[42] Exhibit P1, p. 110.
Hi Chris and Ramin
Please find attached arborist report from Mark Elliott at The Adelaide Tree Surgery.
As discussed on site with Ramin, stumps will be ground out rather than removed.
Please advise that we are all on the same page with this.
So Royal Park Salvage can confirm that next Wednesday 28.6 they will be on site to cut down and remove the hedges.
I will then assess the stumps and organise them to be ground down.
Clearly, it was understood by those three people at least that Mark Elliott’s report would guide the system of work to be adopted.
Mr Harris QC indicated in his closing submissions[43] that this represented the agreement of all parties, including Chris Redin, as to how the work would proceed on 30 June 2017. In particular, Mr Harris acknowledged that Chris Redin accepted at that point that the excavator would be used, albeit in the limited role discussed earlier.
[43] At [145].
24-30 June 2017 – Chris Redin gave evidence that he telephoned Mark Elliott after reading his report.[44] He said he was seeking ‘clarification’ of the methodology recommended. His evidence of the conversation was:
[44] T 139-40, T 557-8.
His words to me were to take small sections from the top of the hedge, to take the weight out of the hedge, and to cut that hedge from its top to about a hundred mil above ground.
Mark Elliott said:[45]
[45] T 558.
Q.Can you tell his Honour the effect of that telephone conversation.
A.I vaguely remember the conversation and it was along the lines of 'How would you carry out the work?'.
Q.Do you remember what you said.
A.I don't recall exactly what I said but I imagine I would have said how I've explained it today.
Q.Being what.
A.Again, starting with - and I don't know how detailed the conversation was, I don't recall that but again, anything I would have said would have been along the lines of start removing in small pieces and if you get a chance to fell, you can fell it in bigger pieces, otherwise small pieces until the hedge is removed down to ground level.
Chris Redin’s version of this conversation is obviously more detailed than Mark Elliott’s. Chris Redin’s reference to ‘cut that hedge from its top’ is more in line with what he is now asserting. It would be inherent in Mark Elliott’s version that if the worker was ‘removing in small pieces’, he would start at the top. The statement ‘if you get a chance to fell, you can fell it in bigger pieces’ gives the worker a much wider discretion. I prefer Mark Elliott’s evidence as to this issue.
30 June 2017 – on this day the events giving rise to this litigation took place.

Damjan Jurkovic said he arrived at the site at about 7 a.m.[46] He met Robert Young and his grandson, Daniel Roberts, who was also a Royal Park Salvage employee. Damjan Jurkovic said he referred to the string line put there by Chris Redin, and told Robert Young that he was only to touch Ramin Noushabadi’s hedge, which was to the left (south) of the string line when looking west.[47] Damjan Jurkovic said he gave the following instructions to Robert Young:[48]
Yeah, I explained the report, same way I did to Mr Allman, that we were to cut from higher above the ground, approximately to where we could reach, in manageable sections, cut to remove the weight and remove a lot of the shrub, to make it very clear on where we had to cut down lower and to cut it away in manageable pieces, leaving roughly 300 mm of stump there for the grinders to come through at a later date.
[46] T 649-50.
[47] Ibid.
[48] T 650.
Chris Redin said that he spoke to Damjan Jurkovic and Robert Young at about 8 a.m. Chris Redin said that he passed on what Mark Elliott told him in their telephone conversation. He said:[49]
Yeah, I said to them that I had spoken to Mark Elliott with respect to the removal of the hedge, he said 'Yep fine'. I said 'You guys are going to need a cherry picker, where is it?', he said 'Why?', I said 'Because you need to trim the hedge from the top down, I can't see any other means with which you could get to the top of the hedge in order to do so.'
[49] T 141-2.
Damjan Jurkovic said in evidence that no such conversation took place. The fact that Chris Redin was present was corroborated by Geoff Redin[50] and Ramin Noushabadi.[51] I am inclined to accept Chris Redin’s version of this event. I agree with Mr Harris QC’s closing submissions about this.[52]
[50] T 492-3.
[51] T 84.
[52] At [166]-[167].
Shortly after that, Chris Redin left the site and went to his business, leaving his father to observe what happened next. Chris Redin returned to the site at about 11.30 a.m. after the ‘first collapse’.
In his Fifth Statement of Claim, the plaintiff states:[53]
As the second defendant was undertaking that work and working along the hedge from east to west, they cut a stump that was situate on the 11 Wootoona Terrace Property but which caused part of the hedge to collapse onto the Property and that part of the hedge that formed the common boundary between the Property and the 11 Wootoona Terrace Property.
Chris Redin referred to this event as the ‘first collapse’, or the ‘partial collapse’. The cutting of this ‘stump’ or branch resulted in a large gap in the hedge on Chris Redin’s side. This is clearly indicated in a photograph:[54]
Robert Young can be seen standing in the gap. It is two or three metres wide. Other gaps can be seen in the foliage to the left of the photograph showing what remained after Royal Park Salvage had cut down the trees on Ramin Noushabadi’s side.
[53] At [23].
[54] Exhibit P1, p. 272.
Significantly, there are no trees, or tree stumps, visible on Chris Redin’s side of the hedge at that point.
With some slight, and understandable, variations, the eyewitnesses gave reasonably consistent descriptions as to how the work proceeded. Ramin Noushabadi described the methodology adopted by Royal Park Salvage as follows:[55]
[55] T 85-6.
Q.Right, okay. Now, after Chris Redin left, and you were present on your property, did the work commence.
A.Yes, it did.
Q.What did you see happen.
A.What they did was they start with the chainsaw removing the upper end of the part of the hedge, but that's without a scaffold, without being on any elevated platform, just as far as they could reach.
Q.Just pausing there, you've said that the hedge was six or seven metres high, so at what height are you talking about.
A.Maybe 1.8, 2 m, so it's basically someone like my height, about 2 m high.
Q.So, maybe a third of the way up the (trunk).
A.Yeah, exactly, yes.
Q.What did you see happen.
A.What they did was - where it started was from - if you're looking at, standing on my tennis court, from further away from the right-hand stand, and they start removing some of those branches to make some sort of a observation, what's behind it, because, yeah, they all intertwine. So, that's what they start doing cuttings and all that, yeah.
Ramin Noushabadi said that the collapse occurred when the excavator was pulling back the hedge towards his property.[56] He later said that the bucket of the excavator was ‘holding’ the tree when he heard cracking and witnessed the collapse.[57] This is contradicted by Robert Young, who said the excavator was ‘stopped’ at the time.[58] I will refer to Robert Young’s evidence later. He was the only person who knew precisely what precipitated the collapse. He was operating the chainsaw when it happened.
[56] T 87.
[57] T 122.
[58] T 839.
Geoff Redin said that there were chainsaws going and that the excavation bucket was pulling at the top part of the hedge on Ramin Noushabadi’s side and ‘shaking the hedge fairly violently’. Geoff Redin then described a ‘complete collapse’ of one section of the hedge into his son’s property, ‘right at my feet’.[59]
[59] T 494.
Geoff Redin used colourful language to describe how there was a ‘wrenching noise of the bucket on the boughs and a cracking and (one) then large crack when it collapsed’.[60] He could not see what happened because he was standing on Chris Redin’s side of the hedge. However, he said he could see the hedge shaking, and could hear the noise of the machinery, the ripping and shredding of boughs.[61] Geoff Redin was not asked where the bough which collapsed onto Chris Redin’s land came from. Surprisingly, it would seem that he did not walk over and inspect the trunk which Robert Young had cut, and determine what happened.
[60] Ibid.
[61] T 510.
Chris Redin did not object to Royal Park Salvage continuing the work. He had returned to the site at about 11.30 a.m. He said he told Damjan Jurkovic and Milos Jurkovic:[62]
‘You can elect to continue to undertake works. I can't prevent you from trimming Ramin's plants.’
He added that his advice was to go and get a cherry picker so they could follow the methodology described previously by Mark Elliott. However, Chris Redin said that shortly after this, he heard Milos Jurkovic say to Damjan Jurkovic:
‘Just grab it and just rip it out.’
He said he saw Milos Jurkovic use arm movement to imitate the bucket of an excavator.[63] Milos Jurkovic denied saying that, and denied using the arm movement.[64] I do not accept that Milos Jurkovic said and did those things. Geoff Redin did not say that they ripped it out with the excavator. On the contrary, he said they were more careful.[65] Whether Milos Jurkovic was joking around is possible, but he denies it. Having regard to what happened, nothing turns on this issue.
[62] T 145.
[63] Ibid.
[64] T 953.
[65] T 514.
After the ‘first collapse’, Royal Park Salvage workers continued working in a westerly direction, cutting the hedge on Ramin Noushabadi’s side.[66] Mr Harris QC submitted that the ‘capability of RPS to carefully cut away the intertwined branches in the upper part of the hedge had not improved’[67] However, Geoff Redin could not see what they were doing – he was on Chris Redin’s side of the hedge. He could only hear what was happening.
[66] See the videos Exhibit P1, tab 36; Robert Young at T 869.
[67] Written closing submissions, [204].
Geoff Redin described a ‘second collapse’. He said it occurred at 2 or 2.30 p.m.[68] He said that another section of the hedge fell into Chris Redin’s property, about ‘twice as much again’ as had previously fallen. The section was to the right of the gap in the photo referred to above.[69] If a second collapse occurred, other evidence suggests it was earlier, perhaps shortly before 1.16 p.m. At that time, Damjan Jurkovic sent a text message to Chris Redin which read:[70]
Hi Chris just cutting the last tree down on Ramins block as per Milos instructions. What would you like to do about the tree on your property
[68] T 515.
[69] Exhibit P1, p. 272.
[70] Exhibit P1, p. 118.
Chris Redin said that after receiving this message, he had a telephone conversation with his father. He did not say that his father told him about a second collapse.[71] He said he asked his father whether the hedge was still salvageable. His father informed him that the hedge was ‘rooted’.[72] I assume he did not mean ‘rooted’ in the arboreal sense, but was referring to the condition of the hedge. On hearing this news, Chris Redin asked Damjan Jurkovic for a price to remove the remaining trees on his property. In his text message, Damjan Jurkovic said:[73]
I’ll charge for a operator and a labour only. I won’t charge for a machine as it’s already on site.
To have my guys remove the trees will be 165 excluding GST. If you would like to go ahead just let me know and I’ll prepare a invoice
On hearing the price, Chris Redin responded:
Thanks damjan, I can’t believe that I have to do this given that I have nurtured that hedge for 8 years!!! But I have no alternative now but to remove what is left. Can you please send me an invoice to …
[71] See Chris Redin’s evidence at T 147. At T 233-4 Chris Redin refers to ‘further damage’ without describing another collapse.
[72] T 147.
[73] Exhibit P1, p. 118.
Remarkably, Chris Redin made this decision without seeing the trees. No photographs are available. Geoff Redin said that he took photographs, but later deleted them inadvertently.[74] By the time Chris Redin returned to the property at about 4 p.m., Royal Park Salvage had almost finished pulling the entire hedge out.
[74] T 495.
So the only evidence before the court as to what remained of Chris Redin’s hedge by the time Royal Park Salvage had finished cutting Ramin Noushabadi’s side was Geoff Redin’s description of the two gaps, and his conclusion that the hedge was ‘rooted’.
Damjan Jurkovic said he could not recall a second collapse.[75] Robert Young made no mention of it, although he did refer to a ‘first collapse’.[76] Milos Jurkovic was not present when the second collapse was said to have happened. As I have already mentioned, Chris Redin did not say that he was informed by his father of a second collapse.
[75] T 736.
[76] T 847.
Mr Belperio also pointed out that a second collapse is not pleaded in the plaintiff’s Fifth Statement of Claim. Rather, it is pleaded[77] that Royal Park Salvage ‘ceased work when it considered that removal of a stump would cause the whole of the remainder of the hedge to collapse onto the Property’.
[77] At [25].
On the basis of this evidence, I am unable to make a positive finding that there was a second collapse.
There is no expert evidence as to whether the hedge was ‘rooted’ or whether it was salvageable after Royal Park Salvage had finished on Ramin Noushabadi’s side; there is no evidence as to how long it would have taken to salvage if it was salvageable, or how much salvaging it would cost.
Neither of the expert valuers was asked what diminution in the value of the property might have resulted from the work done. As the ‘first collapse’ demonstrated, the ‘second collapse’, if it occurred, might also have occurred because there were no trees growing on Chris Redin’s land which constituted the hedge at that point. The hedge might also have been constituted by boughs which had grown across from Ramin Noushabadi’s side.
These factors make the questions of causation and quantum of damage highly problematic for the plaintiff.
Agreement not to Sue
Royal Park Salvage asserts in its Third Defence[78] that on 30 June 2017, Chris Redin agreed not to sue Royal Park Salvage if:
·Royal Park Salvage delivered to Chris Redin certain videos of the work taken by Royal Park Salvage employees on 30 June 2017;
·Royal Park Salvage agreed to remove that part of the hedge which remained on Chris Redin’s property after Ramin Noushabadi’s part of the hedge had been removed.
[78] At [58]-[60].
Chris Redin admitted in evidence[79] that the agreement was made. This admission was confirmed by Mr Harris QC in his closing submissions.[80]
[79] At T 149, notwithstanding his denial of it in his Reply at [2.1].
[80] At [235].
Damjan Jurkovic’s evidence, in brief summary, was that he delivered the videos, on a USB, to Chris Redin in July 2017 by putting them in his letterbox.[81]
[81] T 666, T 686, T 695.
Chris Redin’s evidence was that he did not receive the videos, despite having a telephone conversation with Damjan Jurkovic on 1 August 2017 in which Damjan Jurkovic agreed to drop them at Chris Redin’s business address on Main North Road.[82]
[82] T 149-51, T 197-99.
There are several surprising aspects to both sides of this issue. For example, Chris Redin was a prolific user of text messaging, yet he did not contact Damjan Jurkovic in writing again after 5 July 2017. On the other hand, it is surprising that Damjan Jurkovic, who was also a prolific text messenger, did not confirm with Chris Redin in some way that he had dropped them off.
In these circumstances, I am not satisfied, on the balance of probabilities, that Royal Park Salvage complied with its obligation pursuant to the agreement to supply the videos to Chris Redin. Accordingly, its plea of accord and satisfaction, or in the alternative, estoppel, fails.
Negligence
The plaintiff’s Fifth Statement of Claim asserts that the defendants owed to Chris Redin a duty to exercise reasonable care and skill in carrying out the removal of Ramin Noushabadi’s part of the hedge.[83]
[83] Fifth Statement of Claim, [30]-[31].
It is trite law that in order to be liable in negligence, it must be shown that the defendants:
·owed a duty of care to Chris Redin;
·breached that duty; and
·thereby caused Chris Redin damage.
Was there a duty of care?
Each of the defendants denies that it owed a duty of care to Chris Redin. Royal Park Salvage submits that it was a contractor for Ramin Noushabadi when it carried out the work. De Chellis Constructions submits that it was a contractor for Mr and Mrs Dechellis, the owners of 24 Craighill Road. It is submitted that no authority has been cited for the proposition that a contractor working on one property has any duty of care to the owner of a neighbouring property.[84]
[84] Second defendant’s written closing submissions, [132].
The question of whether a duty of care exists does not require the application of a legal formula or test. The principles to be applied were distilled from a line of High Court decisions by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar.[85] His Honour said:[86]
[85] [2009] NSWCA 258 at [101]; (2009) 75 NSWLR 649.
[86] Ibid at [102]-[106].
This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i)    the nature of the activity undertaken by the defendant;
(j)    the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l)    any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q)   the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.
I have described “foreseeability” as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility.
[Citations omitted]
In the Fifth Statement of Claim, it is asserted that by reason of the following factors, the defendants owed a duty of care to the plaintiff:
30.At all material times, the first (and / or third) and second defendants knew or ought to have known, as was the case that:
30.1 It was foreseeable that the hedge on the Property and on the common boundary would be damaged or destroyed whilst the second defendant was removing that part of the hedge that was on the 11 Wootoona Terrace Property;
30.2 The plaintiff was dependent on the first (and / or third) and second defendants not destroying any part of the hedge on the Property and on the common boundary when the second defendant was removing that part of the hedge that was on the 11 Wootoona Terrace Property;
30.3 The plaintiff would be vulnerable to suffer loss and damage if the second defendant did not exercise due care and skill in removing the hedge on the 11 Wootoona Terrace Property;
30.4 The first (and / or third) and second defendants were in a superior position to the plaintiff to assess whether, in carrying out the works, the removal of the hedge or any part thereof on the 11 Wootoona Terrace Property would cause damage to the hedge on the Property and on the common boundary;
30.5 By reason of the matters pleaded above, the first and second defendants controlled the way in which the removal of the hedge on the 11 Wootoona Terrace Property was carried out;
30.6 The plaintiff could not protect itself from the damage to its Property and the common boundary by contract or other means as the first (and / or third) and second defendants were carrying out works on the 11 Wootoona Terrace Property.

As to the foreseeability of harm alleged in paragraph 30.1, it was not contested by any of the defendants that damage to Chris Redin’s portion of the hedge was foreseeable if the work was not carried out carefully. However, as Allsop P pointed out in Caltex, this alone is inadequate to found a conclusion of duty.
As to the ‘dependence’ of Chris Redin on the defendants in paragraph 30.2, this is referable to salient features (c) and (e) identified by Allsop P in Caltex. As to the ‘vulnerability’ asserted in paragraph 30.3, this refers to salient feature (d). As to the ‘superior position’ of the defendants asserted in paragraph 30.4, this is perhaps referable to salient features (c), (e) and (k) identified in Caltex. As to the ‘control’ asserted in paragraph 30.5, this refers to salient feature (c).
Although not identified in the Fifth Statement of Claim, it is also possible to refer to other salient features, such as (g) proximity, (i) the nature of the activity, (j) its inherent risks, (k) the knowledge (actual or constructive) that the work will cause harm to Chris Redin and (m) the nature and consequences of any action that can be taken to avoid harm to Chris Redin.
In his written closing submissions,[87] Mr Belperio wrote:
The Plaintiff has not cited any authority for the proposition that a contractor working on one property owes any duty of care to the owner of a neighbouring property.
Perhaps not. But in the next paragraph, Mr Belperio cited Burnie Port Authority v General Jones Pty Ltd[88] for the proposition that the owner’s duty of care is non‑delegable to a contractor. That is true when the activity being undertaken is ‘inherently dangerous’. But this is not a case which invokes a question of whether the neighbour’s duty is delegable or not – Mr Noushabadi is not one of the defendants.
[87] At [132].
[88] (1994) 179 CLR 520.
To return to the first point, however, in Burnie the owner of a building, Burnie Port Authority, retained a contractor, Wildridge & Sinclair Pty Ltd, to install additional refrigeration. Their work caused a fire, which damaged General Jones’ stock. General Jones occupied that part of the building pursuant to a licensing agreement. General Jones sued both Burnie Port Authority and Wildridge & Sinclair in negligence, and both were found liable. An appeal to the High Court was dismissed.
While it is true that General Jones was not a ‘neighbour’ in the sense that Chris Redin and Ramin Noushabadi were neighbours, the case demonstrates that a contractor’s duty of care is not confined by property boundaries.
In all these circumstances, I conclude that, having regard to the foreseeability of harm, the nature of the activity, its inherent risks, and the relatively easy steps that could have been taken to avoid harm to the plaintiff, both Royal Park Salvage and De Chellis Constructions, since they were acting in the nature of a joint enterprise, owed a duty of care to the plaintiff not to cause harm to the plaintiff.
Breach of Duty of Care – Royal Park Salvage
The particulars of negligence alleged by the plaintiff against Royal Park Salvage can be distilled down to the following issues:[89]
1.Lack of qualifications and skill of Royal Park Salvage to do the work
[89] Fifth Statement of Claim, [33].
Paragraph 33.1 of the Fifth Statement of Claim alleges that Royal Park Salvage:
33.1… undertook the removal of the hedge on the 11 Wootoona Terrace Property when it was not qualified to do so and when it did not have the requisite degree of skill
Damjan Jurkovic said that Royal Park Salvage was Work, Health and Safety accredited,[90] Occupational Health and Safety certified and quality certified for the purposes of Australian Standards.[91] I presume he was referring to Australian Standards for demolition work.
[90] T 744.
[91] T 678.
There was no evidence before me as to what qualifications and skill were required to do the work, and so I have nothing with which to assess this ground.
Neither of the arborists said that Royal Park Salvage should not have done the work, nor were they asked and nor did they say that the work required a qualified arborist. Mark Elliott commented on what he would have done as a qualified arborist,[92] and Marcus Lodge said that a qualified arborist would not stand on an excavator bucket to cut,[93] but that is as far as their evidence went.
[92] T 551.
[93] T 598.
It is noteworthy that the failure to engage an arborist is not pleaded against Royal Park Salvage, although it is pleaded against De Chellis Constructions.[94]
[94] Fifth Statement of Claim, [32.1].
Mark Elliott said that his report was prepared to ‘give some direction as to how to cut down those trees’.[95] Mark Elliott realised that it was proposed that Royal Park Salvage would do the work. He raised no objection to that. He said he would not have written his report if he did not think that the outcome (of not damaging the trees on Chris Redin’s side) could be achieved.[96]
[95] T 576.
[96] T 582.
Finally, Milos Jurkovic’s email of 24 June 2017 referred to earlier clearly contemplates that Royal Park Salvage would continue to perform the work. Chris Redin did not object to that, after speaking to Mark Elliott. Mr Harris QC acknowledged in his closing address that Milos Jurkovic’s email represented the agreement of all parties, including Chris Redin, as to how the work would proceed on 30 June 2017.
This particular is not made out.
2.Failure to use a cherry picker
Paragraph 33.2 of the Fifth Statement of Claim is as follows:
33.2it undertook the removal of the hedge on the 11 Wootoona Terrace Property without using a cherry picker so as to be able to cut the hedge from the top down to ground level
The first time the issue of a cherry picker was raised, on Chris Redin’s evidence, was on the morning of 30 June 2017.[97] Chris Redin seems to have regarded it as ‘common sense’ that a cherry picker would be required to comply with Mark Elliott’s report. All Mark Elliott said in his report was that the trunks should be cut to ground level. He did not say in his report how this was to be done.
[97] T 145.
Chris Redin said that when he suggested the use of a cherry picker, Damjan Jurkovic told him he would discuss it with Milos Jurkovic. Nothing more was mentioned about it.
Chris Redin’s opinion did not create a duty of care. He did not profess any qualifications, either as an arborist or a demolition operator. He admitted that Mark Elliott had made no reference to a cherry picker to him.[98]
[98] T 142.
Mark Elliott said he would not have considered a cherry picker for a job like that, but they had other techniques, such as pole saws and tree climbing equipment.[99]
[99] T 558-59.
This particular has not been made out.
3.Failure to comply with the advice of Mark Elliott
Paragraph 33.4 of the Fifth Statement of Claim is as follows:
33.4it did not comply at all times with the procedure recommended by Mark Elliott of Adelaide Tree Surgery as referred to in paragraph 17 above
This issue encompasses the alleged failure to cut the hedge from the top down in paragraph 33.3:
33.3it did not, when commencing the removal of the hedge on the 11 Wootoona Terrace Property on 30 June 2017, cut the hedge from the top down to approximately ground level and then undertake a shallow grind of the tree stumps and tree roots;
In his written closing submissions, Mr Harris QC submitted:[100]
Mr Young did not get right up into the top of the canopy and start cutting out branches from the 11 Wootoona property that had intertwined themselves with the branches on Mr Redin’s side. Mr Young claimed to have cut what he thought was safe. Mr Young claimed that he was taking the weight off the top of the hedge so that they wouldn’t “lose” the hedge on Mr Redin’s side but once the stump was cut by reference to a photograph of a bearer crossing from the 11 Wootoona property over to the 22 Craighill property, which Mr Young said was holding the whole thing – that was the end of the hedge. If the intertwined upper branches and foliage of this bearer had been removed by the use of an elevated work platform then by the time that the bearer depicted in the photograph was cut near ground level it would not have had the destructive effect which the laden bearer did in fact have.
[100] Written closing submissions, [188].
As I have already outlined, Robert Young is the only person who saw precisely what happened in what Chris Redin called the ‘first collapse’. I have already discussed the evidence of Ramin Noushabadi and Geoff Redin, but neither of them saw precisely what happened.
Robert Young had worked in the demolition industry for 30 years. He was the excavator operator involved in the site clearance at 24 Craighill Road in October 2016.
On 30 June 2017, Robert Young attended the site. He was shown the job by Damjan Jurkovic, who showed him the string line. He knew that he could only cut on Ramin Noushabadi’s side of the string line.[101]
[101] T 837.
Robert Young said he came to a trunk which is indicated in this photograph.[102]
The trunk originated on Ramin Noushabadi’s land, on the right (south) of the string line looking east in this photograph. One section grew almost vertically, sloping to the south. Another trunk grew almost horizontally to the north, crossing to Chris Redin’s land and then rising to produce dense foliage on that side.
[102] Exhibit P2, p. 316.
Robert Young said he pointed this out to Chris Redin that morning. He told him that if it was cut, that part of the tree would fall onto Chris Redin’s land. He said that Chris Redin told him ‘Just cut it’, so he did.[103] Robert Young was clear that this was the branch which was involved in the ‘complete collapse’ of the hedge, in Chris Redin’s words.
[103] T 837. Mr Harris QC pointed out that this conversation was not put to Mr Redin in cross-examination. I note that no application to recall Mr Redin on the point was made. Mr Harris described the evidence as ‘spectacularly improbable’ (Closing submissions, [192]). I agree that it is likely that Robert Young confused this with a later conversation with Mr Redin. I do not discount the rest of Robert Young’s evidence on this basis. He impressed as a straightforward and honest witness.
I have strong doubts that Chris Redin told Robert Young to ‘just cut it’. It is not consistent with my impression of Chris Redin’s personality. Nor was it consistent with the rest of his evidence. It was not put to Chris Redin that he said that during the conversation he had with Damjan Jurkovic and Robert Young in the morning, about whether they had a cherry picker.[104] The evidence is clear that Chris Redin was not on site when the ‘first collapse’ occurred. I think Robert Young may be confused and spoke to someone else about this tree. Either that, or his memory of a conversation is wrong.
[104] T 141.
Robert Young’s evidence as to what happened is as follows:[105]
[105] T 839-40.
Q.Were you told anything about what to do with the stumps of the hedge.
A.What to do?
Q.Yes.
A.With the cutting part or -
Q.Or the trunks. Were you told what to do about the bottom of the trunks, of the hedge.
A.Yes, we had to cut through that, like I said, that line, that was the bottom. Once I took the weight off of the vine we cut through that and then it was supposed to stand, but you could see that that wasn't going to stand anyway because it was attached to that piece at the bottom.
Q.Now, at some point a branch did fall into Mr Redin's land.
A.Mm-hmm.
Q.Was that to your memory, is that this branch that we are looking at.
A.That was tied to that whole vine, that branch; there's more coming out but that one there was tied to that part where it come over and caved into his - onto his lawn and ...
[Robert Young was there indicating the horizontal branch being ‘tied’ to the vertical trunk on Ramin Noushabadi’s side of the string line.]
Q.Can you describe what happened when this fall happened.
A.Well when the fall happened we had to use the excavator - well it was stopped, because the vine wasn't supposed to fall over.
[Robert Young referred to the hedge as a ‘vine’.]
There is no expert evidence to support the above written submission by Mr Harris QC. In particular, there is no evidence that any tree, or any foliage thereof, growing on Chris Redin’s land was substantially damaged in the ‘first collapse’. The photograph at Exhibit P1, p. 272 does show damage to an upper bough of one tree. Above Robert Young in the photograph, damage to a branch can be seen. It would seem to have snapped off at about 3.5 m above ground. Robert Young is leaning on it.[106] There is no evidence that this branch was from a trunk that was growing on Chris Redin’s land.
[106] The damage may account for Geoff Redin’s evidence of a snapping noise as the collapse occurred.
I conclude that once Robert Young cut the trunk of the tree which was on Ramin Noushabadi’s land, the gap in Chris Redin’s hedge depicted in the photograph at Exhibit P1, p. 272 would have occurred whether or not the tree fell into Chris Redin’s land. Even if Royal Park Salvage had been holding the tree with the excavator bucket and the tree was pulled back onto Ramin Noushabadi’s land, the gap would have been the same.
Interestingly, Geoff Redin gave evidence that when his son returned from work at about 11.30 a.m., he inspected the gap in the hedge described above. He then told his father that he had told the operators to use chainsaws piece by piece but not to use the KATO (excavator) in a ripping action and to take care because the hole could be fixed.[107]
[107] T 498.
Royal Park Salvage admits that the contents of Mark Elliott’s report were provided to them by Milos Jurkovic in his email dated 24 June 2017.[108] De Chellis Constructions admits that Mark Elliott provided a report.[109]
[108] Second defendant’s Third Defence, [17], [18].
[109] Third defendant’s Second Defence, [17.1].
Royal Park Salvage says it acted in accordance with the report.[110] The evidence of Robert Young, however, is inconsistent with that assertion. I accept that, for the most part, there is evidence that Royal Park Salvage complied with Mark Elliott’s instructions, to the extent that they cut ‘to approximately ground level’. Chris Redin’s evidence was that between 24 June and 30 June 2017, he telephoned Mark Elliott to obtain clarification of this instruction. As I have already noted, all Mark Elliott could recall of the conversation was:
A.Again, starting with - and I don't know how detailed the conversation was, I don't recall that but again, anything I would have said would have been along the lines of start removing in small pieces and if you get a chance to fell, you can fell it in bigger pieces, otherwise small pieces until the hedge is removed down to ground level.
There is no dispute that this message was passed to Damjan Jurkovic, who said he passed it to Robert Young.
[110] Ibid [22] and [23].
Damjan Jurkovic said that he explained to Robert Young that he should take the weight from the branch and then cut the stump.[111] Robert Young confirmed that Damjan Jurkovic told him to cut at or above eye level.[112] This was not what happened when he cut the stump which fell into Chris Redin’s land in the ‘first collapse’. Robert Young’s description of what happened, described above, together with Geoff Redin’s observations, suggests that when Robert Young cut the horizontal trunk on the left-hand side of the string line, the massive bough which hung over Mr Redin’s property collapsed. This was not the method recommended by Mark Elliott, as understood by the parties present.
[111] T 650.
[112] T 855, T 868.
Mr Belperio submitted that none of the people present on the site on 30 June 2017 gave evidence that the first and only cut of any of the trees was at ground level. It is true that Robert Young did not say so specifically, but the clear inference from his evidence was that this is what happened when the collapse occurred. His evidence[113] quoted above was that the trunk collapsed after he cut it at the base, that it ‘wasn’t supposed to fall over’, and that the excavator was not holding the top part because it was ‘stopped’. I reject Ramin Noushabadi’s evidence to the contrary that the bucket of the excavator was being used to stabilise the higher branches when the collapse occurred. Robert Young’s evidence that the excavator was ‘stopped’ was not challenged in court.
[113] At T 839-40.
Royal Park Salvage argued that in any event, Mark Elliott’s inspection was ‘superficial’ in that his opinion that the hedge could be cut without damaging Chris Redin’s trees could not be realistically achieved without a detailed examination of the hedge and, in particular, an assessment made of how many trees were growing on Chris Redin’s side of the boundary. Clearly, on his evidence, he did not do that. As I have already noted, he could not say how many, or what proportion of them, grew on that side.[114]
[114] T 566-70, T 576-79.
Be that as it may, the duty to follow Mark Elliott’s report, as explained by Chris Redin to Damian Jurkovic that morning, was obviously accepted by all present as the careful method to be adopted. This particular instance of cutting by Robert Young was a breach of that duty. It was clearly a breach of the instructions given by Mark Elliott.
I find this particular of breach of duty is made out.
4.Continuation of work after the ‘partial collapse’ of the hedge
Paragraphs 33.5, 33.6 and 33.7 of the Fifth Statement of Claim are as follows:
33.5it continued to remove the hedge after the partial collapse referred to in paragraph 23 above and after it had formed the view that if it continued, the remaining part of the hedge on the Property and on the common boundary would be destroyed;
33.6after the partial collapse of the hedge referred to in paragraph 23 above, continued to cut the hedge at the base, rather than trim from the top down;
33.7after the partial collapse referred to in paragraph 23 above and after it had formed the view that if it continued, the remaining part of the hedge on the Property and on the common boundary would be destroyed, it accepted and followed the instruction of the first defendant and used an excavator to rip out the rest of the hedge
Chris Redin knew that Royal Park Salvage would continue to perform the work after he left the site after the ‘first collapse’ and returned to work. He did not suggest that work should stop. I heard no suggestion in Mr Harris QC’s address that work should have stopped altogether. I reject this ground as it applies to De Chellis Constructions.
Chris Redin told Milos Jurkovic and Damjan Jurkovic that they could elect to continue, that he could not prevent them from trimming the hedge on Ramin Noushabadi’s side, but his advice was to get a cherry picker.[115]
[115] T 145.
Geoff Redin said that the work proceeded with more care after the ‘first collapse’ until the ‘second collapse’ occurred.
For the reasons expressed earlier, even if there was a second collapse, it is impossible to know whether, as with the first or partial collapse, it caused any particular damage to Chris Redin’s portion of the hedge.
This particular is not made out.
5.Use of an excavator
Paragraph 33.8 of the Fifth Statement of Claim is as follows:
33.8it used an excavator to remove the remaining part of the hedge
Royal Park Salvage admits that Damjan Jurkovic sent an email to Chris Redin, Ramin Noushabadi, Milos Jurkovic and Petar Jurkovic on 17 June 2017 confirming discussions, including that an excavator would not be used to remove the trees but only to load out and move trees around the site once cut.[116]
[116] Second defendant’s Third Defence, [16.4.3], [16.5].
It is clear from the evidence that the decision to use the excavator in performing the work was made by Royal Park Salvage. It had remained on the site since at least 17 June 2017.

The first thing to observe is that Mark Elliott did not counsel anybody not to use the excavator when he visited the site on 21 June 2017. He said he would not have considered using such machinery if he had been doing the job.[117] He said ‘… we tend to stay away from machinery when we work’.[118] However, he conceded in cross-examination that the use of the bucket to hold the top of the hedge while lower portions were being taken out would be fine.[119] The arborist called by Royal Park Salvage, Mr Marcus Lodge, gave similar evidence.[120]
[117] T 557.
[118] T 556.
[119] T 574.
[120] T 594.
Ramin Noushabadi’s evidence as to the use of the excavator was:[121]
Q.All right, and did you see the excavator used. That is the excavator machinery.
A.The excavator was used to remove - because the branch was so large, the excavator was used to remove - to pull it back, to pull the top part back, so it's not falling on anybody else or whatever.
Q.So what did you see the excavator arm and bucket do from when they commenced working. You told us that they were working with chainsaws at about maybe the 2 m height.
A.Yeah, yep.
Q.When the excavator was used, what did you see the excavator and the bucket do to the hedge.
A.They - once the first potion of it was removed, then they start, proceed going further alongside towards the end of the property. And the excavator was used to remove the hedge that is on my boundary.
[121] T 85-86.
Later in evidence, Ramin Noushabadi said that:[122]
·the bucket of the excavator was at the top to hold the top part;
·they used the chainsaw to pull it back (perhaps he meant to ‘cut it back)’;
·they did not use the excavator to cut the top part of the hedge;
·he did not see Royal Park Salvage make the first cut at ground level.
[122] T 104-5, 107.
Leaving all these considerations to one side, it seems to me that the use by Royal Park Salvage of an excavator is a side issue. The only witness who could give evidence about how the ‘first collapse’ occurred was Robert Young. His evidence was that the collapse occurred when he cut the horizontal trunk which went under the string line. On that evidence, there is nothing to connect the use of the excavator with the collapse, except if it was being used to hold the branch up and failed to do so.
Robert Young gave evidence that his understanding was that the excavator was there to ensure that nothing fell into Chris Redin’s property, and to pick up the loose pieces after they had been cut.[123]
[123] T 844.
However, Robert Young gave evidence that the excavator was ‘stopped’ at the time of the collapse.[124] This was contradicted by Ramin Noushabadi, who said the branch was being ‘held’ by the excavator when it collapsed. In neither case was the use of the excavator causative of damage.
[124] T 839.
In any event, neither Mark Elliott[125] nor Royal Park Salvage’s expert witness, Marcus Lodge,[126] indicated that the use of the excavator in the manner described by Ramin Noushabadi and Robert Young was, of itself, unreasonable.
[125] At T 573.
[126] At T 594.
In conclusion, there is no evidence to show that the use of the excavator caused the collapse. The cause was a cut with a chainsaw.
This particular is not made out.
Breach of Duty of Care – De Chellis Constructions
De Chellis Constructions now argues that it has no legal responsibility for the way Royal Park Salvage removed Ramin Noushabadi’s share of the hedge pursuant to the 1 March 2017 agreement.[127] It was argued that the extent of De Chellis’ responsibility was that it agreed to contribute to the new fence and the provision of some replacement trees (‘Photinia robusta’), and that the removal of the hedge was a separate agreement between Ramin Noushabadi and Royal Park Salvage.[128]
[127] Written closing submissions, [3].
[128] Third defendant’s closing submissions, [13].
I do not accept that submission. De Chellis Constructions and Royal Park Salvage mutually received consideration for their agreement to enter this arrangement – the avoidance of any liability to Ramin Noushabadi for what happened to his hedge in October 2016. In return, De Chellis Constructions and Royal Park Salvage jointly gave consideration to Ramin Noushabadi. There were not two separate agreements.
This was apparent from the way the parties acted on 30 June 2017. De Chellis Constructions was just as interested in what occurred as was Royal Park Salvage, even if Milos Jurkovic was on site for less time. Damjan Jurkovic was obviously deferring to Milos Jurkovic, probably due to his age and inexperience, and Milos Jurkovic provided such guidance to him. It was obvious that De Chellis Constructions regarded itself as a party to the agreement to take down Ramin Noushabadi’s side of the hedge. Milos Jurkovic acted that way. For example, it was Milos Jurkovic who obtained the arborist report from Mark Elliott.
The work done on 30 June 2017 was in the nature of a joint venture, although that is not specifically alleged by the plaintiff. The plaintiff has chosen to allege specific, and some different, particulars of breach of duty of care. I will deal with them separately from the allegations against Royal Park Salvage.
The particulars of negligence alleged by the plaintiff in his Fifth Statement of Claim against De Chellis Constructions can be distilled down to the following issues:
1.Failure to engage an arborist
Paragraphs 32.1 and 32.2 are as follows:
32.1it failed to engage an arborist on or about 30 June 2017 to remove the hedge on the 11 Wootoona Terrace Property;
32.2it instructed and permitted the second defendant to remove the hedge on the 11 Wootoona Terrace Property on 30 June 2017 when it was not qualified to do so and when it did not have the requisite degree of skill
I have already found that this particular of negligence has not been made out against Royal Park Salvage. For the same reasons, it is not made out against De Chellis Constructions either.
These particulars are not made out.
2.Failure to instruct Royal Park Salvage to comply with the advice of Mark Elliott
Paragraphs 32.3, 32.5, 32.6 and 32.7 of the Fifth Statement of Claim are as follows:
32.3it failed to instruct the second defendant to remove the hedge along the rear of the 11 Wootoona Terrace Property by cutting the hedge from the top down to approximately ground level and then to undertake a shallow grind of the tree stumps and tree roots
…
32.5it failed to ensure that the second defendant cut the hedge along the rear of the 11 Wootoona Terrace Property by cutting the hedge to approximately ground level and then undertaking a shallow grind of the tree stumps and tree roots
32.6it failed to instruct the second defendant that it must comply at all times with the procedure recommended by Mark Elliott of Adelaide Tree Surgery;
32.7it failed to ensure the second defendant followed the procedure recommended by Mark Elliott of Adelaide Tree Surgery as referred to in paragraph 17 above
As I have already discussed, Milos Jurkovic sent a copy of Mark Elliott’s report to Royal Park Salvage as well as to Ramin Noushabadi and Chris Redin.[129] Damjan Jurkovic said he read and understood the report. He instructed Robert Young as to how to go about his task. He gave Robert Young a copy of the report. Robert Young acknowledged that he had received those instructions.
[129] T 138.
There is no evidence to substantiate the allegation that De Chellis Constructions failed to instruct Royal Park Salvage to comply with Mark Elliott’s report. It was assumed by everyone involved that Royal Park Salvage would comply with it. Milos Jurkovic was not on the site when Robert Young cut the trunk which led to the ‘first collapse’. He was not supervising Robert Young at the time.
To the extent that De Chellis Constructions was under a duty to instruct Royal Park Salvage by providing a copy of Mark Elliott’s report, there was no failure to comply. There is no evidence that De Chellis Constructions’ role was to instruct, supervise or ensure the work down by Robert Young and Royal Park Salvage was in accordance with Mark Elliott’s instructions.
These particulars are not made out.
3.Failure to use a cherry picker
Paragraph 32.4 of the Fifth Statement of Claim is as follows:
32.4(it) failed to provide and ensure that the second defendant used a cherry picker so as to be able to cut the hedge from the top down to ground level
I have already discussed this particular of breach of duty of care in relation to Royal Park Salvage. My reasons for rejecting it in relation to De Chellis Constructions are the same.
When Chris Redin suggested the use of a cherry picker to Damjan Jurkovic in the morning, he said that Damjan Jurkovic told him he would discuss it with Milos Jurkovic. Damjan Jurkovic said he had no memory of the conversation. Milos Jurkovic did not have a memory of it either. He said that if the arborist recommended a cherry picker, or Royal Park Salvage decided they wanted one, that was ‘their prerogative’.[130] I am not satisfied that the issue of a cherry picker was discussed with Milos Jurkovic.
[130] T 950.
This particular is not made out.
4.Continuation of work after the ‘partial collapse’ of the hedge
Paragraphs 32.8 and 32.9 of the Fifth Statement of Claim are as follows:
32.8after the partial collapse of the hedge as referred to (in) paragraph 23 above and after the second defendant advised that it had ceased work because if it continued then the hedge would collapse upon (the) Property and on the common boundary as referred to in paragraph 26 above, instructed the second defendant to continue removing the hedge and to continue to cut the roots rather than trim from the top down;
32.9after the partial collapse of the hedge as referred to (in) paragraph 23 above and after the second defendant advised that it had ceased work because if continued then the hedge would collapse upon the Property as referred to in paragraph 26 above, instructed the second defendant to rip out the rest, knowing that it would or would likely destroy the hedge on the Property and on the common boundary
I have already discussed this particular of breach of duty of care in relation to Royal Park Salvage. My reasons for rejecting it in relation to De Chellis Constructions are the same.
5.Use of an excavator
Paragraph 32.10 of the Fifth Statement of Claim is as follows:
32.10it instructed or permitted the second defendant to use an excavator to remove the remaining part of the hedge
I refer to my reasons for rejecting this particular of negligence in relation to Royal Park Salvage. Those reasons also apply to this particular against De Chellis Constructions. There is no evidence that the use of an excavator by Royal Park Salvage was careless, or that it was causative of any damage to Chris Redin’s property.
Further, there is no specific evidence that De Chellis Constructions caused or permitted Royal Park Salvage to use the excavator. It was assumed by all concerned, including Chris Redin, that an excavator would be used on 30 June 2017.
Summary of Findings as to Duty of Care
From the above analysis, the only particular of breach of duty of care which has been made out is that Royal Park Salvage failed to comply with the advice of Mark Elliott.
This breach of duty of care was committed when Robert Young cut the horizontal bough at ground level just inside the boundary to Ramin Noushabadi’s property.
Causation of Loss
Mr Harris QC submitted that had the work been carried out by Royal Park Salvage in accordance with Mark Elliott’s instructions, then Chris Redin’s hedge would have survived.[131] This submission begs the question: ‘Survived in what form?’
[131] Written closing submissions, [140].
The arborist called by Royal Park Salvage, Marcus Lodge, said that it was ‘highly unlikely the hedge could have been successfully repaired at the time of the partial (first) collapse if the remainder of the hedge on the neighbouring (11 Wootoona Terrace) property was to be removed’.[132] He identified the following problems:
·removal of branches would have left holes;
·the appearance of the hedge would change;
·‘branch failure’ may have been increased;
·building a retaining wall would probably have caused the roots to be cut and cause death of the tree.
[132] T 592.
Royal Park Salvage submits that even if there had been a breach of the duty of care in relation to Mark Elliott’s report, it was not causative of loss since the large bough which fell into Chris Redin’s property originated from Ramin Noushabadi’s land.
In evidence-in-chief, Mark Elliott said: ‘but (I) wouldn’t have recommended the removal of the hedge if I thought it was going to have a detrimental effect on the remaining hedge’.[133] However, that evidence must be seen in light of concessions made in cross-examination.
[133] T 551.
In cross-examination, Mark Elliott acknowledged that he could not now assess what aesthetic damage to the hedge would have resulted from removal of all the trees on Ramin Noushabadi’s side of the boundary.[134] Clearly, the gap left by the ‘first collapse’ dramatically affected its aesthetic quality, as the photograph demonstrates.[135] Smaller gaps, caused by cutting before the collapse, are also evident in that photograph.
[134] T 577.
[135] Exhibit P1, p 272.
Mr Harris QC submitted that it was self-evident that ‘if you cut it off at the base which is what Mr Young did, and you let it fall, intertwined as it is with all of the foliage of the hedge that is growing on Mr Redin's property, then you are going to destroy the hedge’.[136] That may be so, but it begs the question whether the hedge so destroyed was growing on Mr Redin’s property or not.
[136] T 989.
Further, there is no evidence that any ‘intertwined’ foliage growing on Chris Redin’s land was damaged. All I have is a photograph showing a gap in the hedge. All of the surrounding foliage could have been growing on Ramin Noushabadi’s land for all I know. Finally, there is no evidence that the outcome would have been different had Royal Park Salvage cut the branch depicted in the photograph Exhibit P1 p 272 in a different way. It has not been proven that cutting the branch from the top, and then in stages to stump level, would have created a smaller gap.
I accept the defendants’ submissions that the plaintiff has failed to prove that the actions of Royal Park Salvage on 30 June 2017 were causative of loss to the plaintiff. The diminution of the value of Chris Redin’s hedge was inevitable when Royal Park Salvage cut the trunks of the trees on Ramin Noushabadi’s side of the boundary. On the evidence, the gaps in the hedge which resulted did not result from damage to any tree growing on Chris Redin’s land.
Nuisance
The plaintiff’s claim in nuisance is as follows:
·Chris Redin had property rights over his portion of the hedge, and property rights over the hedge on the boundary.[137]
I have already found that there were some trees growing on Chris Redin’s side of the boundary. For reasons already expressed, this element is made out.
·Royal Park Salvage and De Chellis Constructions had management and control of the 11 Wootoona Terrace property (presumably because it was granted to them by Ramin Noushabadi).[138]
This element was not discussed in any of the addresses. For the sake of argument, I will proceed on the basis that this element is made out.
·The defendants committed nuisance by causing the hedge on the 11 Wootoona Terrace property to collapse and fall onto that part of the hedge on Chris Redin’s property and on the common boundary and therefore caused it to be destroyed.[139]
Although I am satisfied that Royal Park Salvage caused the bough cut by Robert Young to fall onto Chris Redin’s property, there is no evidence that in doing so it ‘destroyed’ or even damaged any part of the hedge on Chris Redin’s property.
·The defendants also committed nuisance by ripping out the remaining part of the hedge on Chris Redin’s property and on the common boundary.[140]
Royal Park Salvage ‘ripped out’ the remaining part of the hedge on Chris Redin’s property at his request.
[137] Fifth Statement of Claim, [36].
[138] Ibid, [37].
[139] Ibid, [38.1].
[140] Ibid, [38.2].
Having regard to the above findings, neither Royal Park Salvage nor De Chellis Constructions has committed a nuisance.
Trespass
Mr Harris QC referred to his client’s claim in trespass as:[141]
… the trespass is not the human beings, it's actually the material crashing into the property and doing the damage.
[141] T 1007.
In his Fifth Statement of Claim, the plaintiff’s claim in trespass is:
44. In carrying out that work, the second defendant:
44.1 caused part of the hedge that was on the 11 Wootoona Terrace Property to collapse onto the Property and onto the hedge that was on the Property and on the common boundary and the plaintiff repeats paragraphs [sic] 23 above;
44.2 thereafter, in continuing the work, caused the remaining part of the hedge that was on the 11 Wootoona Terrace Property (to collapse) onto the Property and the hedge that was on the Property and on the common boundary and the plaintiff repeats paragraph 29 above;
44.3 trespassed on the Property by Mr Damjan Jurkovic and Mr Young physically entering onto the Property without the permission or consent of the plaintiff when undertaking the work referred to [in] paragraphs 23, 28 and 29 above.
45.The acts by the second defendant referred to in the previous paragraph and each of them amounted to a trespass and further were committed by the second defendant at the instruction of the first (and / or third) defendant which is therefore also responsible for the acts of the second defendant.
The allegations in paragraphs 44.1 and 44.2 are similar to those in paragraphs 38.1 and 38.2 which deal with nuisance, and I reject them for the same reasons given in that section of these reasons.
As to paragraph 44.3, there is no evidence to support this allegation. Chris Redin gave no evidence that Damjan Jurkovic and Robert Young had no permission to enter his land. Indeed, his evidence is clear that he was aware of their presence and made no objection.
I agree with the closing written submissions of Ms Stanley on this point:
65.    Trespass occurs when someone enters onto land without invitation or implied permission. Trespass includes the physical intrusion into land by tangible objects, be they persons or things.
66.    A person who enters the land of another must justify that entry by showing that he or she has entered with the consent of the occupier or otherwise had lawful authority to enter the premises.
67.    It is a defence to an action for trespass to land for a defendant to prove that the entry onto the land was by the leave or licence of the person then in possession of the land. Oral leave and licence will be sufficient, and may be implied by conduct.
68.    The test as to whether there has been implied leave granted is objective, not subjective, and is essentially a question of fact.
69.    The plaintiff has failed to establish a claim that RPS committed an act of trespass, and that Dechellis is vicariously liable for RPS’ actions as:
69.1The plaintiff was aware of the work being undertaken by RPS on 11 Wootoona, and the hedge.
69.2The plaintiff was privy to the ongoing discussions between all parties regarding the removal of the hedge on 11 Wootoona.
69.3The plaintiff has not made out that Milos told RPS to just “rip out” the hedge remaining on 22 Craighill Road as set out in paragraph 36 above.
69.4The plaintiff expressly engaged RPS to remove the remainder of the hedge.[142] The plaintiff knew or ought to have reasonably known that RPS would therefore access 22 Craighill. Accordingly, the plaintiff provided express, or in the alternative, implied consent to access 22 Craighill to carry out the works.
69.5There is no evidence to indicate that the plaintiff took steps to “eject” the defendants from 22 Craighill.
70.    Accordingly, the plaintiff has not established that RPS committed an act of trespass and Dechellis are vicariously liable.
[References omitted]
[142] MFI P1 Vol 1 Tab 38.

The claim in trespass fails.
Fences Act
The claim pursuant to s 16(2) of the Fences Act 1975 (SA) was abandoned by the plaintiff.[143] There is no need to examine it further.
[143] T 1007.
Contribution
De Chellis Constructions and Royal Park Salvage have sought contribution from each other in the event that they are found liable to the plaintiff. In case I am wrong about liability, I should indicate whether either claim is made out.
In its Second Amended Contribution Claim, De Chellis Constructions asserts that any such liability was contributed to, or caused by, Royal Park Salvage’s negligence and/or breach of duty and/or breach of contract to the plaintiff.
There is no claim by the plaintiff based on breach of contract. If De Chellis asserts there is a contract between De Chellis and Royal Park Salvage, there are no particulars pleaded and there is no information before me about it.
In its Contribution Claim, Royal Park Salvage simply claims contribution pursuant to s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and/or apportionment of liability in accordance with s 8 of that Act. Both claims seek an amount ‘determined by the Court to be fair and equitable having regard to the extent of the Defendants’ respective responsibility for any harm’.
I have already found that Royal Park Salvage and De Chellis Constructions, along with Ramin Noushabadi, were parties to the ‘deed’ entered into on 1 March 2017. To that extent, the removal of trees on Ramin Noushabadi’s side of the boundary pursuant to the agreement might be regarded as a joint venture. I accept the submission of Ms Stanley for De Chellis Constructions that Royal Park Salvage was a principal, and not simply an agent, pursuant to the agreement.
As to the events of 30 June 2017, they occurred under the supervision of Robert Young by Damjan Jurkovic of Royal Park Salvage. Damjan Jurkovic was responsible for the system of work to be adopted that day, although Milos Jurkovic’s input would have been influential. Milos Jurkovic was present for only some of the time, and there is no evidence that he was present at the time Robert Young cut the bough which collapsed onto Chris Redin’s land.
In all the circumstances, I consider that De Chellis Constructions bears no responsibility for any harm caused to the plaintiff. The claim for contribution by Royal Park Salvage against De Chellis Constructions is therefore dismissed.
De Chellis Constructions has not been found liable to the plaintiff. Its claim for contribution against Royal Park Salvage is also dismissed.
Quantum of Loss
In case I am wrong on the issue of causation, it is necessary that I assess damages.
The plaintiff puts his claim for damages on two bases:
·the cost of replacing the hedge – in this regard he relies on the evidence of the arborist Mr Frank Ross, who puts the cost of replacement at $105,000. The arborist called by Royal Park Salvage, Marcus Lodge, put the cost at $17,400;
·the diminution of the value of his property – he relies on the opinion of Mr Darcy Bruce that the value has reduced by $315,000 if a seven-metre high hedge was still there, and $200,000 if there was a five‑metre hedge still present. The valuer called by Royal Park Salvage, Ms Amanda Lambert, put the diminution in value at between $10,000 and $30,000.
Mr Harris QC submitted that this was not a ‘binary choice’, which I take as meaning that the alternatives are not mutually exclusive. As I understand his argument, it is that if Chris Redin replanted the hedge in accordance with Mr Ross’ specifications, and then decided to sell the property within a period before the hedge had fully regrown, then his loss would carry aspects of both heads of damage.
The most surprising aspect of this issue is that Chris Redin has not taken any action to replace the hedge in the three years or so since 30 June 2017. It is noteworthy that Mr Ross said that the replacement plants should have been purchased at the earliest possible time in order to minimise the cost of replacement.[144]
[144] T 387.
In my view, this inaction suggests a lack of genuineness in Chris Redin’s evidence of his passionate regard for the previous hedge and his description of living with a Colorbond fence being ‘like living in Alcatraz’.[145] For the same reason, it suggests that his claim to be concerned about overlooking from the 11 Wootoona Terrace property, and his privacy generally, is overstated.
[145] T 222.
Diminution in Property Value
If, as Mr Harris QC suggested, Chris Redin decided to sell the property in three or four years’ time, the replanted trees would have been six or seven years old by then if he had followed Mr Ross’ advice. The evidence of Marcus Lodge was that the trees could be fully established after 10 years.[146] There was no evidence of what the value of the property would have been had that occurred. In particular, none of the arborists was asked how high the trees would have been after that period of time. In any event, Chris Redin did not give evidence that he had any intention of selling the property, let alone at what time. I infer from that that he has no present intention to sell it, although he left open the possibility.[147]
[146] T 610, T 637.
[147] T 225.
Mr Belperio referred me to the remarks of Judge Burley in Matthews v Christie:[148]
In any event, although there is some suggestion by Mrs Matthews that she would wish to move to other accommodation, I think the combined evidence of Mrs Matthews and her husband is that they will remain in that property for the rest of their lives. That being the case, there can be no claim for diminution in value unless the diminution is permanent. I do not think there can be a permanent diminution in value, even if one has occurred at all, because, since the destruction of the ivy screen, it has been (and it remains) open to the plaintiffs to re-grow the ivy screen on the backstop of the tennis court which has been constructed since the original ivy screen was destroyed. For these reasons I do not think that the plaintiffs have made out a case for damages based on diminution in value.
[148] [2001] SADC 9 at [43].
I am not able to infer that Chris Redin will remain on the property for the rest of his life. However, he has not demonstrated that he will, on the balance of probabilities, sell the property within the 10 years it would have taken the hedge to grow to maturity.
Another difficulty for the plaintiff in his claim for diminution in value is that neither of the valuers, Darcy Bruce or Amanda Lambert, was asked to assess the diminution in value of Chris Redin’s property on the basis of a severely depleted hedge, as it was after all the trees on Ramin Noushabadi’s property had been removed. The holes and gaps which resulted from that removal would have presented a much less attractive hedge than the one in the ‘before’ photographs presented in evidence.[149] It would certainly not have improved the value of Chris Redin’s property by $315,000, as Darcy Bruce suggested.
[149] Exhibit P1, p 269.
Darcy Bruce’s valuation of $315,000 is based on his opinion that the hedge would have improved the value of Chris Redin’s property by 15%. While I respect Darcy Bruce’s expertise and long experience in this area, I have doubts that the hedge was worth that much. Darcy Bruce cited the rarity of such a large hedge,[150] the ‘fear factor’ of potential renovations or subdivision of 11 Wootoona Terrace increasing the loss of privacy, and the loss of protection from noise and wind.[151] However, I agree with the observations of Amanda Lambert that although there may be buyers who are attracted to a hedge which is seven metres high and six metres thick at the base, there would be others who would not be so attracted, and would be happy with a ‘contemporary replacement’.[152]
[150] T 261.
[151] T 300-01.
[152] T 801.
So taking all those matters into account, I cannot envisage that the hedge, in all its pre-30 June 2017 glory, would have added more than two or three per cent to the value of the property.
But that is not what Chris Redin has lost. He has lost his portion of it, that part of it which remained after Ramin Noushabadi’s part was removed. There is no valuation of that part. The only evidence is that of Geoff Redin, who said it was ‘rooted’. He is not an expert in either arboriculture or valuation. A further complication is that Royal Park Salvage would have only been liable for the loss it caused by its breach of the duty of care. That is the gap in the hedge demonstrated in photograph Exhibit P1, p 272. There is no valuation of that loss. There is no evidence upon which to base the plaintiff’s claim that the ‘second collapse’ was also due to a breach of duty of care, or that Chris Redin’s decision to instruct Royal Park Salvage to pull the whole thing down was reasonable. I am unable to assess damages for the diminution in value of the plaintiff’s property for those reasons.
Another issue which relates to Chris Redin’s claim based on diminution in property value is that the hedge in question, that part of it which was growing on Chris Redin’s property, was growing on land the subject of easements in favour of the Minister for Infrastructure and SA Water Corporation[153]
[153] Certificates of Title, Exhibit P1, pp 12 and 16.
Mr Belperio submitted that the easements conferred a right on the grantee to remove any trees growing above the pipes in order to gain access to them. If, as Chris Redin asserts, the hedge was 70 years old, then the pipes below it must be that old.[154] It follows that the hedge could never have been regarded as a permanent feature of the property. Mr Harris QC submitted that SA Water would be liable to Chris Redin for any ‘unnecessary damage’ to the hedge.[155] No support for this proposition was offered. I doubt its validity. In any event, the question of what damage might be ‘unnecessary’ in any given situation begs the question whether the hedge would ever have been regarded as permanent.
[154] T 800.
[155] Written submissions, [247]-[258].
Quite frankly, I do not understand the oral submission of Mr Harris on that point:
… but in terms of the question of the value to the property of the loss of the hedge, the only impact on a potential purchaser that that topic could have, namely, well this hedge might not be able to be enjoyed into the future, is if the potential purchaser perceived that as being an aspect of value to the house that they wanted to preserve. Otherwise it's got no bearing on the exercise that she [Amanda Lambert] was doing.
As I understand it, the basis of the plaintiff’s claim based on diminution of property value is that the hypothetical willing purchaser of the property would regard the hedge as an asset of the property, and one which added value to it. If not, then Amanda Lambert is correct that the hedge added very little value to the property.
The Cost of Replacement
I agree with the defendants’ submissions that the opinion of Mr Ross that the cost of replacing the hedge would be $105,000 is grossly inflated. Without descending to details, his inclusion, for example, of ‘reserve’ trees, his inclusion of the costs of drainage works consequent upon the erection of the fence, the cost of interstate travel to source the trees and the cost of ongoing maintenance, are all outrageously high in the context of this case. I prefer the evidence of Marcus Lodge on these matters.
Chris Redin also obtained quotations from two other firms in relation to replacement of the trees forming a hedge. These quotations were in the material sent to Mr Ross.[156]
·Established Tree Transplanters Pty Ltd (12/11/18) $23,430
·Adelaide Plant Recovery (11/12/18) $41,712
[156] See Exhibit P11, tabs 9 and 10.
No evidence was called in relation to either of these quotations. The defendants submit that they go to the credit of Mr Ross, as does another quotation of $20,200 from Mr Kym Knight, the arborist first consulted by Chris Redin.[157] I do not accept that. If the other quotations were put to Frank Ross on the basis that they went only to credit, and he refuted them, they would not have been admissible pursuant to the collateral evidence rule.
[157] Exhibit P1, p 138.
Allowing for some compromise between the extremes in the evidence of Frank Ross and Marcus Lodge, I would assess the cost of replacement of the hedge over a 10‑year period at about $30,000.
In the event that the plaintiff had established liability and causation of loss, I would have awarded damages in the sum of $30,000.
Orders
As against all defendants, the plaintiff’s claim is dismissed.
I will hear the parties as to any further orders.