Smith v Kaddour

[2017] NSWLEC 117

Land and Environment Court

New South Wales

Medium Neutral Citation:	Smith v Kaddour [2017] NSWLEC 117
Hearing dates:	22 August 2017
Date of orders:	15 September 2017
Decision date:	15 September 2017
Jurisdiction:	Class 2
Before:	Pain J
Decision:	See par 30
Catchwords:	TREES (NEIGHBOURS) – practice and procedure –jurisdiction of Court – earlier case finding no causation of damage by tree – principle of res judicata – no evidence demonstrating relevant change of circumstance enabling commencement of fresh proceedings – change of owner where tree located since earlier litigation – application dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 s 3, Pt 2 Uniform Civil Procedure Rules 2005 r 13.4
Cases Cited:	Barbour v Stillianesis [2010] NSWLEC 1275 Blatchford v Clubley (No 2) [2015] NSWLEC 1040 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] AC 853 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 O’Donel v Commissioner for Road Transport and Tramways (1938) 59 CLR 744; [1938] HCA 15 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thoday v Thoday [1964] P 181 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406; [1992] FCA 377
Texts Cited:	Handley, KR, Spencer Bower and Handley: Res Judicata (4th ed, LexisNexis, 2009) Ritchie’s Uniform Civil Procedure NSW (LexisNexis, 2005)
Category:	Procedural and other rulings
Parties:	David Smith (First Applicant) Sharon Lesley Hannaford (Second Applicant) Kareem Kaddour (First Respondent) Marin Kaddour (Second Respondent)
Representation:	COUNSEL: In person (First Applicant) D Smith, agent (Second Applicant) M Parrino, solicitor (Respondents)   SOLICITORS: N/A (First Applicant) N/A (Second Applicant) Project Lawyers (Respondents)
File Number(s):	17/196300

Judgment

1. Mr Smith and his wife Mrs Hannaford have filed an application under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) seeking orders in relation to a development application before Willoughby City Council (the Council) because of alleged damage to their property in Amaroo Avenue Castle Cove caused by a Sydney Blue Gum tree (the Tree) located on their neighbour’s land. That property has been owned by the Respondents Mr and Mrs Kaddour since September 2015. The Tree was reduced to a stump on 1 August 2016 by the Respondents with the consent of the Council. The Respondents seek an order that the Applicants’ application be dismissed on the basis the Applicants are estopped by earlier litigation in 2011 from commencing fresh proceedings inter alia. Mr Smith represented both Applicants.

2. Rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) provides that in any proceedings which appear to disclose no reasonable cause of action or are an abuse of process of the court a court may order that the proceedings be dismissed generally or in relation to that claim. The latter is recognised to include the pursuit of proceedings involving the re-litigation of matters already determined or which should have been determined in prior proceedings, see Ritchie’s Uniform Civil Procedure NSW (Lexis Nexis, 2005) at [13.4.5, Service 96].

Trees (Disputes Between Neighbours) Act 2006

3. The Trees Act relevantly provides:

Part 1 Preliminary

...

3 Definitions

(1)   In this Act:

…

tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations.

...

Part 2 Court orders—trees that cause or are likely to cause damage or injury

7 Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

8 Notice of application for order to be given to owners of affected land

(1)   An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to:

(a)   the owner of the land on which the tree is situated, and

(b)   any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and

(c)   any other person the applicant has reason to believe will be affected by the order.

...

9 Jurisdiction to make orders

(1)   The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2)   Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may:

(a)   require the taking of specified action to remedy damage to property, or

(b)   require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or

(c)   require the taking of specified action to prevent injury to any person, or

(d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or

(e)   authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or

(f)   authorise the applicant concerned to take specified action to prevent injury to any person, or

(g)   authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or

(h)   require the payment of costs associated with carrying out an order under this section, or

(i)   require the payment of compensation for damage to property, or

(j)   require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.

10 Matters of which Court must be satisfied before making an order

(1)   The Court must not make an order under this Part unless it is satisfied:

(a)   that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b)   if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

…

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a)   the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

...

(h)   if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i)   anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii)   any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i)   if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i)   anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii)   any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j)   such other matters as the Court considers relevant in the circumstances of the case.

13 Appearance by local council or Heritage Council

A local council or the Heritage Council (a relevant authority) may appear before the Court in any proceedings under this Part in relation to a tree if the consent or other authorisation of the relevant authority to interfere with the tree would be required, in the absence of section 6 (3), under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.

4. One of the Respondents Mr Kaddour swore an affidavit dated 22 August 2017 which was read in the proceedings.

5. The orders sought by the Applicants according to their application (Form C) are:

1.   Restrain approval of development application (Willoughby City Council DA-2017/81) (approval)

2.   Further or in the alternative grant approval with the conditions:

a.   Removal of remaining parts of the tree including but not limited to root system

b.   Adherence to engineers recommendations regarding removal of all parts of the tree

c.   Repair damage to the applicants' land including boundary wall and buildings (property) occasioned by tree and removal attempted by the respondent

3.   Stabilize site including injection of cement or other into vacated space consequent upon performance of condition 2a hereof

4.   Supervision and certification of remedial and repair works by appropriately recognised engineers with knowledge of the project

5.   Such further or other orders as the court may see fit including any necessary to comply with requirements of the Willoughby City Council

6. Earlier litigation concerning the same properties and the same Tree was determined by Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. In that matter the Applicants filed an application under the Trees Act against former owners of the neighbouring property Mr Zhang and Mrs Zhou as respondents seeking the removal of the Tree and approximately $50,000 in damages alleged to have been caused by the Tree.

7. Craig J considered causality under s 10(2)(a) of the Trees Act at [29]-[37] concluding at [38]:

I am prepared to embrace the approach articulated by the Federal Court in the cases cited. However, that does not relieve me of the obligation cast by s 10 to be “satisfied” of the causal nexus between the Sydney Blue Gum and the damage claimed by the Applicants. That will require an assessment of the totality of the evidence adduced before me. When considering that evidence, it will, nonetheless, require a “preponderance of probability” that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section. So much, I think, was acknowledged by Mr Seymour when he concluded his submission in reply on this issue by saying “its just simply a state of belief, on the balance of probabilities.”

8. Craig J considered the expert evidence of three arborists, a plant ecologist and three engineers called by the parties. His Honour was not satisfied that there was a sufficient causal nexus between the presence of the Tree and the damage caused to the Applicants’ property to satisfy s 10(2)(a) of the Trees Act. The following extracts from the judgment indicate the comprehensive assessment undertaken by Craig J in reaching that conclusion:

EXPLORATORY TRENCHES ARE DUG

17   In June 2010, at the suggestion of experts retained by the parties and with the agreement of the applicants, two trenches were dug and excavations undertaken adjacent to the eastern wall of the applicants' dwelling. The first trench (trench 1) was in the vicinity of the cracking that was observed in the exterior wall of the applicants' dwelling. The excavation proceeded beneath the footing of the building and extended to bedrock so as to reveal the geological profile beneath the dwelling. Excavation in the second or northern trench (trench 2) was undertaken to a similar level and for a similar purpose.

...

CAUSE: EVIDENCE OF ARBORISTS AND ECOLOGIST

39   Evidence was received from Ms Melanie Howden, Mr Peter Richards and Mr Hugh Taylor, all of who were arborists. Dr AnnMarie Clements, a plant ecologist, also joined the arborists in giving concurrent evidence concerning the Sydney Blue Gum.

40   Ms Howden was retained by the applicants...

...

46   I find the generality of Ms Howden's evidence to be unpersuasive. While her explanation of cause prior to excavation of trenches 1 and 2 may have been appropriate, faced with the observations able to be made following excavation, her conclusion was based upon generalities. It did not address the observations made by all and the detailed reasoning able to be applied to this observation by Mr Taylor, Mr Richards and Dr Clements. At its highest, Ms Howden's evidence does no more than hypothesise that by reason of the few, relatively small roots observed in the trenches that were excavated, there must be a large number of roots some of which, either individually or in combination, are sufficient to create the pressure necessary in order to lift the footing of the applicants' dwelling.

47   The reasoning of the other experts that I have earlier summarised seems to me to be more persuasive, based, as it is, upon the application of arboricultural and ecological training to the particular observations in the excavated trenches. There can be no doubt that the site of these trenches were selected because, in the opinion of those endeavouring to establish whether the tree was a cause of damage, these were the locations most likely to reveal the presence of roots supporting the thesis advanced. Based on the evidence of those experts, I could not be satisfied that there was a causal nexus between the Sydney Blue Gum and the damage occasioned to the applicants' dwelling.

CAUSE: THE ENGINEERING EVIDENCE

48   Engineering evidence was given by Mr McKee, retained by the applicants, Mr Mark Lawrie, a civil and structural engineer retained by the second respondents and Mr David Dickson, a geotechnical and structural engineer also retained by the second respondents. Each of the engineers had inspected the two trenches that were excavated in June 2010. They had also inspected the applicants' dwelling together with the measurements of level and plumb carried out by Mr McKee.

...

52   Mr McKee maintains the position reflected in his report of October 2009 and repeated in a report that he prepared in January 2010. As I have earlier indicated, each of these reports was written at a time when the first order root of approximately 350mm in diameter was thought to pass under the buildings footing. In the light of the excavations revealing that the root had been severed some time in the past, Mr McKee no longer maintained that this root was the cause. Nonetheless, he maintained that the only possible cause of uplift was tree roots from the Sydney Blue Gum.

53   For their part, both Mr Lawrie and Mr Dickson acknowledge two possibilities for displacement of the rock boulders upon which the piers bear. First, they acknowledge the possibility of unseen tree roots within the interbed layers and crevices of the rock stratum. This was described by Mr Lawrie as a "philosophical" alternative, that is, it could not be ruled out and therefore needed to be acknowledged as a possibility. Their alternate explanation for displacement was relative movement of boulders caused by variations in the in-soil water pressure. A further explanation of relative movement of boulders was proffered by Mr Dickson in oral evidence.

...

59   I prefer the evidence of Messrs Lawrie and Dickson. In particular, Mr Dickson impressed me as a careful witness who had been thorough in his investigations and who was prepared to approach his assessment on an objective basis. His concession that the tree root cause was a possibility accorded with reality. Notwithstanding that concession, he maintained his opinion that the likely cause was rock movement by reason of local geology. His explanations were plausible. He had the advantage over the other two engineers that he was a geotechnical engineer with an understanding by training and experience of geology. This extended to the rock stressors that he had identified within the sandstone rock matrix adjacent to cliffs and their impact upon foundation stability. Mr McKee acknowledged that he had no such experience.

60   In contrast, I could not help but gain the impression that Mr McKee was anxious to maintain the opinion initially expressed in his report of October 2009, notwithstanding the subsequent discovery that the tree root attributed as being the cause of failure had long since been severed. His unwillingness to concede even the possibility of a cause of damage other than tree roots tended to detract from the objectivity of his evidence. His statement that the probability of uplift having been caused by tree roots was 99 per cent, despite no such roots being observed and no test undertaken to detect their existence was, again, an approach that detracted from an objective appraisal of the available evidence.

CAUSE: NO NEXUS IS DEMONSTRATED

61   Having considered both the arborists' evidence and that given by the engineers, I am not satisfied that the Sydney Blue Gum has caused or is causing the damage that has been occasioned to the applicants' dwelling. I express this conclusion having considered all of the evidence given before me and without applying common law notions of onus of proof.

62   As the respondents submitted, something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act to make an order to remedy, restrain or prevent damage as a consequence of a tree. In the language of Jenkinson J in McDonald, confidence on a "bare preponderance of probability" has not been engendered on the evidence adduced that the Sydney Blue Gum was a cause of damage to the applicants' dwelling. Embracing the language of the applicants' submission, I have not been left in a state of belief, on the balance of probabilities, that the tree is a cause of that damage.

Applicant’s material

9. The Applicants’ bundle of material in support of their application contained the following:

1. Engineering report by Shirley Consulting Engineers Pty Ltd (Shirley Consulting), a firm of engineers not briefed in the 2011 case, dated 11 August 2011 is critical of the engineering evidence before Craig J and his Honour’s conclusions. The report purports to attribute all damage of the Applicants’ property to the Tree – Tab 3.

2. Report by GBG Australia Pty Ltd dated 2 May 2011 mapping root locations and depths under sandstone bedrock on the Applicants’ property adjacent to the Tree – Tab 4.

3. Report by Mountford Prider Pty Ltd engineers dated 15 December 2011 investigating the potential causes of damage to the Applicants’ property on behalf of their insurer – Tab 5.

4. Report by Shirley Consulting dated 27 August 2014 refers to inspections of 11 March and 25 June 2014 – Tab 6.

5. Report by Shirley Consulting dated 12 February 2015 comments critically on observation of Craig J when his Honour is summarising the evidence of arborists at [42](iii) – Tab 7.

6. Report by Shirley Consulting dated 18 February 2016 concerning costs of repair of footings and foundations – Tab 8.

7. Report by Ms Mackenzie arborist dated 28 March 2016 relies on reports of Shirley Consulting concluding that the Tree roots through pressure and movement are likely to be affecting the structures which support the Applicants’ property. Ms Mackenzie recommended that the Tree be removed in its entirety and warned that the decaying of roots could cause future movement and displacement – Tab 9.

8. Report by Shirley Consulting dated 22 April 2016 identifying risks of proposed development on the Respondents’ land – Tab 10.

9. Report by Shirley Consulting dated 13 April 2017 noting that the Tree had been cut to a stump and that the stump appeared to have been poisoned. The report recorded additional damage to the Applicants’ property since the previous inspection prior to the Tree being cut down. Shirley Consulting was of the opinion that such damage was “directly related to the removal of the tree” and that the footings beneath the Applicants’ property should be stabilised to avoid future damage – Tab 11.

1. Quote by Grater Construction Group Pty Ltd dated 10 March 2016 to carry out remedial building works on the Applicants’ premises – Tabs 12.

2. Correspondence between the Applicants, their solicitors, the respondents in the matter before Craig J and their solicitors between April 2011 and March 2015 – Tabs 13-19.

3. Letter from the Applicants’ solicitors to the respondents in the matter before Craig J dated 27 May 2015 – Tab 20. The letter alleged four relevant changes of circumstance since the decision of Craig J which it said entitled the Applicants to commence fresh proceedings in this Court:

1.   The two major roots from the tree have enlarged and the footing underneath the eastern wall of the study at the southern end [of] our clients’ house has been further lifted.

2.    The cracking in the brickwork over the footing underneath the east wall window in our clients’ house has widened.

3.   A substantial new crack has appeared in the detached block of sandstone in the exploratory pit on the eastern side of our clients’ house as a result of the growth of a tree root under that rock.

4.   The diagonal stepwise crack on the southern side of our clients’ house has further increased in size and has widened.

13. The letter also noted the respondents’ intention to sell their property and suggested rewording a special condition in the draft contract for sale related to the removal of the Tree.

14. Letter from the Applicants’ solicitors to the respondents in the matter before Craig J dated 28 August 2015 restating the key points in the letter dated 27 May 2015 – Tab 21. This letter was also forwarded to the Respondents in the present proceedings as the incoming purchasers of the property upon which the Tree is situated – Tab 22.

15. Respondents’ purchase finalised in September 2015.

16. Letter from the Respondents’ solicitors to the solicitors’ for the Applicants dated 1 September 2015 – Tab 23.

17. Council approval for removal of the tree issued on 2 December 2015.

18. Letter from the First Applicant to the solicitors for the Respondents dated 22 February 2016 stating the Applicants’ intention to commence proceedings in this Court as the parties were unable to reach agreement on the Tree removal – Tab 24.

19. Letter from the Council to the First Applicant dated 17 June 2016 – Tab 25.

20. Respondents cause the Tree to be cut to a stump on 1 August 2016.

21. Letter from the First Applicant to the Respondents dated 2 May 2017 alleging further damage to the Applicants’ property caused by the Tree and asking whether complete removal of the Tree is intended – Tab 26.

22. Letter from the First Respondent to the First Applicant dated 19 May 2017 stating that the Tree was removed in the interests of neighbourly relations – Tab 27.

No power to make orders against Council

10. Part of the objection of the Respondents to the Applicants’ application can be shortly dealt with. The application seeks an order to restrain Willoughby City Council from dealing with a development application lodged by the Respondents (prayer 1) or requiring the Council to approve the proposed development with certain conditions imposed, as identified in prayers 2-4 set out in par 5 above. The Court has no power to make such orders under ss 7, 9 or in light of s 12 of the Trees Act. Nor can the Court make orders under the Trees Act requiring compliance with the requirements of the Council as prayer 5 seeks.

11. No legal basis for the Council to be joined as a party in these proceedings has been demonstrated by the Applicants, which would be necessary if orders were able to be made in relation to the Council. There is provision in s 13 of the Trees Act for a local council to appear in proceedings before the Court if its authorisation is required to interfere with a tree, provided s 6(3) does not apply. Section 6(3) states that an order under Pt 2 has effect despite any requirement for consent or authorisation under the Environmental Planning and Assessment Act 1979 (which is likely to be a local council responsibility). The orders sought by the Applicants in relation to the Council are not authorised by s 13 of the Trees Act. No reasonable cause of action on this basis is identified as referred to in r 13.4(1)(b) of the UCPR.

Res judicata/issue estoppel

12. As prayers 2(a), 3 and 4 identify work which the Applicants want done (following the cutting down of the Tree to a stump) namely removal of the remaining parts of the Tree, site stabilisation and certification of remediation work, I will assume those are the orders sought under the Trees Act. No specific order for compensation for damage caused by the Tree as provided by s 9(2)(b) of the Trees Act is identified. The material in the Applicants’ bundle includes substantial quotes for repair work to their home which the Applicants said total about $450,000. If I understand the Applicants’ oral submissions correctly these costs of damage are being claimed in these proceedings.

13. On the assumption that the Applicants have articulated a claim that does fall within ss 7, 9 in light of s 12 of the Trees Act based on material lodged with the application, the Respondents submit that no such claim can proceed because of the principle of res judicata.

14. The Tree was reduced to a stump one year ago, a result the Applicants have sought for some time (for example, letter from the Applicants to the respondents in the matter before Craig J dated 12 March 2015 making an offer to cut the Tree to stump height at the Applicants’ expense). A stump is a tree per Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 at [147].

15. The Respondents submit that the issue of causation of damage was determined finally by Craig J in 2011 on the basis of expert engineering and other evidence. The Applicants are bound by those findings as are the Respondents, the successors in title to the property on which the Tree stump is located. No new circumstances are identified in the application and supporting material, with continued reliance on essentially the same evidence as was placed before Craig J.

16. The Applicants submit that they rely on changed circumstances. All the material on which they rely has been prepared since the judgment of March 2011 including evidence of new damage to their home.

Finding

17. The voluminous material filed by the Applicants in support of their new application includes the reports of different engineers and a different arborist to those briefed to give evidence in the 2011 litigation. They essentially seek to place fresh engineering and arboreal evidence before the Court to support the orders sought for work to be done and their substantial damages claim.

18. Avoiding the re-agitation of issues which have been determined in earlier proceedings and ensuring the finality of litigation are important public interest considerations fundamental to the efficient and fair operation of the justice system. “[C]ontroversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”, D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34].

19. This principle of law is reflected in the doctrine of res judicata. A decision by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, cannot be re-litigated except on appeal between persons bound by the judgment (Handley, KR, Spencer Bower and Handley: Res Judicata (4th ed, LexisNexis, 2009) at [1.01]). It is a complete bar to the claim being made, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 at 613. According to the rule of res judicata, an applicant cannot assert the existence of a cause of action where judgment had been entered in previous proceedings that held against the same cause of action, see Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406; [1992] FCA 377 at 409 citing Thoday v Thoday [1964] P 181 at 197-198. The legal principle of res judicata has been referred to as cause of action estoppel.

20. Public interest in ensuring the finality of judicial decisions is also reflected in the separate doctrine of issue estoppel. Issue estoppel arises where an issue in dispute has been raised and determined in earlier proceedings and is raised again in subsequent proceedings. The circumstances relied on by the Respondents here are most appropriately characterised as giving rise to an issue estoppel. As the Respondents submitted relying on Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] AC 853 cited in Blatchford v Clubley (No 2) [2015] NSWLEC 1040 issue estoppel arises where the same question has been decided finally by a judicial officer in previous proceedings involving the same parties. The Respondents submitted that they should not be precluded from raising an issue estoppel on the basis that the property in question has changed ownership since the decision of Craig J. I agree given that they are the subsequent owners of land where the Tree is located.

21. The Applicants are seeking to re-litigate the same issue of causality as Craig J determined. This issue was fundamental to his Honour’s ultimate decision that the respondents in that matter were not liable for any damage alleged to have been caused to the Applicants’ property by the Tree. In the absence of a material change of circumstance the issues already determined by Craig J cannot be re-litigated, see O’Donel v Commissioner for Road Transport and Tramways (1938) 59 CLR 744; [1938] HCA 15 at 763. The change of circumstance relied on by the Applicants of more damage to their home since 2011 is not the matter about which a material change of circumstance must arise to overcome issue estoppel. The relevant change in circumstance must relate to the issue of causation of damage to the Applicants’ property in light of Craig J’s decision. The many expert reports in the Applicants’ bundle do not engage with this requirement.

22. It is clear from the section of Craig J’s judgment headed “Cause: The Engineering Evidence” (at [48]-[60]) that evidence that ground movement due to geology was accepted as the probable cause of cracks and other damage in the Applicants’ home. His Honour was not satisfied in 2011 that the Tree had caused or was causing damage to the Applicants’ dwelling at [61] applying the test of satisfaction his Honour identified in [62]. This followed consideration of specific tree roots located in two trenches dug near the foundations of the Applicants’ home, see [17]-[28].

23. There are eight expert engineering reports ranging in date from 11 August 2011 to 13 April 2016 and one arborist report dated 28 March 2016 in the Applicants’ bundle. Five of the nine reports in the Applicants’ bundle predate the Respondents becoming the owners of the Tree. Further, I note that the engineering report dated 22 April 2016 commenting on the Respondents’ development application is irrelevant to an application under the Trees Act. None of the reports explicitly address the findings in the 2011 judgment concerning the investigation of tree roots. Some are inappropriately argumentative with the conclusions in the judgment. That an expert disagrees with Craig J’s conclusions is irrelevant. It is simply not open to the Applicants or their experts in light of Craig J’s findings to attribute the cause of any damage solely to the Tree. Rule 13.4(1)(c) of the UCPR applies in these circumstances.

24. Additionally, the Respondents became owners of the neighbouring land in September 2015. They cannot be liable for damage caused by the intact Tree before that date and arguably after that date given that there is no evidence that they did anything to cause any damage from the Tree, see Robson v Leischke at [222(h)], [225]-[226]. That the terms of the contract for sale with the previous owners included a condition recognising there was an issue with the Tree from the Applicants’ perspective (letter dated 27 May 2015) does not alter that position. The Applicants’ assertions in the letter to the Respondents dated 2 May 2017 that the Respondents are liable to remediate and rectify damage to the Applicants’ property are incorrect.

25. The Respondents reduced the Tree to a low stump in August 2016 at their expense and without any court or other legal requirement that they do so. This was done solely in the interest of good neighbourly relations given that the Tree was healthy as far as they were aware and not causing damage from their perspective (a view supported by the earlier judgment), see letter to the First Applicant dated 19 May 2017. As their solicitor submitted before me, the removal of the Tree is a result the Applicants have been seeking for a lengthy period having made that application in the proceedings which came before Craig J. Letters contained in the Applicants’ bundle of material confirms this continuing interest. Evidence that the stump appeared to have been poisoned was identified in the report of Shirley Consulting dated 13 April 2017.

26. The expert arborist’s report dated 28 March 2016 in the Applicants’ bundle states that further damage may occur if the Tree’s roots decay. This evidence does not presently assist the Applicants because of the findings of Craig J. Significantly for the Applicants, the evidence before Craig J was that the tree root initially considered to cause the damage was severed so that it could not have been the cause of damage. No other tree roots were identified to his satisfaction as causing or likely to cause damage to the Applicants’ house. His Honour considered movement of boulders was the more probable cause.

27. Theoretically a change of circumstance can give rise to fresh proceedings. The Trees Act can apply where a tree is a, not the sole, cause of damage, Robson v Leischke at [179]. Any new evidence must accept the finding of engineering evidence before Craig J that the probable cause of any damage was rock movement and that none of the tree roots investigated in the course of those proceedings were found to be the cause.

28. No part of this judgment should be considered as encouragement to the Applicants to commence fresh proceedings. If in the future the Applicant is intending to attribute a cause of damage to different tree roots to those identified by Craig J at [17]-[28] the question will arise of whether that should or could have been made available in evidence in the Court in 2011. As identified in Barbour v Stillianesis [2010] NSWLEC 1275 at [5] that is a relevant factor in light of the importance of the finality of litigation.

29. Were the matter to be argued before the Court the cause of damage as identified by Craig J would be highly relevant under s 12(h)(i). At any hearing the Court would also be required to consider the steps taken by the Respondents as the owners of the land where the Tree is located to rectify damage under s 12(h)(ii). They have essentially undertaken the action sought by the Applicants over several years.

30. The Court orders:

1. The Applicants’ application dated 30 June 2017 is dismissed.

2. The Applicants’ bundle of material be returned.

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Decision last updated: 19 September 2017