St Clair v Kilham - [2018] NSWLEC 1071

Land and Environment Court

New South Wales

Medium Neutral Citation: St Clair v Kilham [2018] NSWLEC 1071
Hearing dates: 20 December 2017
Date of orders: 13 February 2018
Decision date: 13 February 2018
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)   The application is upheld.
(2)   Gaye Lesley Kilham is joined as the Second Respondent in these proceedings.
(3)   Within 30 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably qualified and experienced structural engineers, with appropriate professional indemnity insurance, for designing and specifying a wall to replace the existing boundary wall from Pier 1 to Pier 7, using similar or equivalent materials.
(4)   The cheapest quote from (3) is to be selected, unless the parties agree on another of the quotes.
(5)   Within 45 days of the date of these orders the applicant is to engage and pay for the selected engineer from (4) to design and specify the construction of the replacement wall (Pier 1 to Pier 7).
(6)   Within 90 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably experienced contractors, with appropriate insurances, for demolishing the existing wall and building the replacement wall as specified. Each quote must show separately the amounts for demolishing and constructing Pier 1 to Pier 4, and Pier 4 to Pier 7.
(7)   The cheapest quote from (6) is to be selected, unless the parties agree on another of the quotes.
(8)   Within 120 days of the date of these orders the applicant is to engage and pay for the selected contractor from (7) to demolish the existing wall (Pier 1 to Pier 7) and construct its replacement.
(9)   Within 14 days of receiving copies of receipted invoices for the engineer’s design (see order (5)) and the contractor’s demolition and construction (see order (8)), the respondents are to pay the applicant 50% of the engineer’s invoice, 50% of the cost of demolishing and building Pier 4 to Pier 7 of the wall, and 60% of the cost of demolishing and building Pier 1 to Pier 4 of the wall.
(10)   If the respondents do not receive receipted invoices for the works within 6 months of the date of these orders, order (9) lapses.
(11)   Liberty to relist on 7 days’ notice for the purpose of working out these orders.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; root damage; boundary wall; whether roots caused damage to the entire wall; Dividing Fences Act; orders for replacing the boundary wall.
Legislation Cited: Dividing Fences Act 1991 No 72 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties: Paul St Clair (Applicant)
Henry Kilham (First Respondent)
Gaye Kilham (Second Respondent)
Representation:
B Campbell (solicitor) (Applicant)
H Kilham (self-represented) (Respondents)
Fox & Staniland Lawyers (Applicant)

File Number(s): 2017/00308287

Judgment

Background

On sloping land in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading St Clair v Kilham

Details

AGLC: St Clair v Kilham [2018] NSWLEC 1071
Case: [2018] NSWLEC 1071
Decision Date: 13 February 2018

CaseChat Overview and Summary

In the matter of St Clair v Kilham, the parties involved were the applicant, St Clair, and two respondents, the first being the neighbour, Kilham, and the second being a subsequent party, Gaye Lesley Kilham. The dispute centred on the repair and replacement of a boundary wall between the parties' properties. The matter was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issues the court had to address were whether the application to join a new respondent, Gaye Lesley Kilham, should be granted, and if so, what orders should be made to facilitate the repair and replacement of the boundary wall. The applicant argued that Gaye Lesley Kilham, who had an interest in the property, should be joined as a party to ensure that all relevant parties were included in the proceedings. Additionally, the applicant sought orders to mandate the repair and replacement of the boundary wall, including steps for obtaining quotes, selecting contractors, and setting timelines for payment.

The court found that Gaye Lesley Kilham should indeed be joined as a respondent due to her interest in the property. The court then proceeded to make detailed orders to manage the repair and replacement process. It mandated that both parties obtain quotes from engineers and contractors for the necessary works and stipulated timelines for selecting the most cost-effective quotes. Furthermore, the court directed that the applicant engage the selected engineer and contractor and set out a payment schedule for the respondents based on the receipted invoices for the works. The court granted liberty to relist to ensure compliance with these orders.

Orders

Orders of the court

(1) The application is upheld.

(2) Gaye Lesley Kilham is joined as the Second Respondent in these proceedings.

(3) Within 30 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably qualified and experienced structural engineers, with appropriate professional indemnity insurance, for designing and specifying a wall to replace the existing boundary wall from Pier 1 to Pier 7, using similar or equivalent materials.

(4) The cheapest quote from (3) is to be selected, unless the parties agree on another of the quotes.

(5) Within 45 days of the date of these orders the applicant is to engage and pay for the selected engineer from (4) to design and specify the construction of the replacement wall (Pier 1 to Pier 7).

(6) Within 90 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably experienced contractors, with appropriate insurances, for demolishing the existing wall and building the replacement wall as specified. Each quote must show separately the amounts for demolishing and constructing Pier 1 to Pier 4, and Pier 4 to Pier 7.

(7) The cheapest quote from (6) is to be selected, unless the parties agree on another of the quotes.

(8) Within 120 days of the date of these orders the applicant is to engage and pay for the selected contractor from (7) to demolish the existing wall (Pier 1 to Pier 7) and construct its replacement.

(9) Within 14 days of receiving copies of receipted invoices for the engineer’s design (see order (5)) and the contractor’s demolition and construction (see order (8)), the respondents are to pay the applicant 50% of the engineer’s invoice, 50% of the cost of demolishing and building Pier 4 to Pier 7 of the wall, and 60% of the cost of demolishing and building Pier 1 to Pier 4 of the wall.

(10) If the respondents do not receive receipted invoices for the works within 6 months of the date of these orders, order (9) lapses.

(11) Liberty to relist on 7 days’ notice for the purpose of working out these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	St Clair v Kilham [2018] NSWLEC 1071
Hearing dates:	20 December 2017
Date of orders:	13 February 2018
Decision date:	13 February 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is upheld. (2) Gaye Lesley Kilham is joined as the Second Respondent in these proceedings. (3) Within 30 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably qualified and experienced structural engineers, with appropriate professional indemnity insurance, for designing and specifying a wall to replace the existing boundary wall from Pier 1 to Pier 7, using similar or equivalent materials. (4) The cheapest quote from (3) is to be selected, unless the parties agree on another of the quotes. (5) Within 45 days of the date of these orders the applicant is to engage and pay for the selected engineer from (4) to design and specify the construction of the replacement wall (Pier 1 to Pier 7). (6) Within 90 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably experienced contractors, with appropriate insurances, for demolishing the existing wall and building the replacement wall as specified. Each quote must show separately the amounts for demolishing and constructing Pier 1 to Pier 4, and Pier 4 to Pier 7. (7) The cheapest quote from (6) is to be selected, unless the parties agree on another of the quotes. (8) Within 120 days of the date of these orders the applicant is to engage and pay for the selected contractor from (7) to demolish the existing wall (Pier 1 to Pier 7) and construct its replacement. (9) Within 14 days of receiving copies of receipted invoices for the engineer’s design (see order (5)) and the contractor’s demolition and construction (see order (8)), the respondents are to pay the applicant 50% of the engineer’s invoice, 50% of the cost of demolishing and building Pier 4 to Pier 7 of the wall, and 60% of the cost of demolishing and building Pier 1 to Pier 4 of the wall. (10) If the respondents do not receive receipted invoices for the works within 6 months of the date of these orders, order (9) lapses. (11) Liberty to relist on 7 days’ notice for the purpose of working out these orders.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; root damage; boundary wall; whether roots caused damage to the entire wall; Dividing Fences Act; orders for replacing the boundary wall.
Legislation Cited:	Dividing Fences Act 1991 No 72 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Paul St Clair (Applicant) Henry Kilham (First Respondent) Gaye Kilham (Second Respondent)
Representation:	B Campbell (solicitor) (Applicant) H Kilham (self-represented) (Respondents) Fox & Staniland Lawyers (Applicant)
File Number(s):	2017/00308287