Legal Research
Cases
Stevens v Russell

Stevens v Russell

Case [2016] NSWLEC 1233 8 June 2016

No judgment structure available for this case.

Type to search within this case.

Land and Environment Court

New South Wales

Medium Neutral Citation: Stevens v Russell & anor [2016] NSWLEC 1233
Hearing dates: 31 May 2016
Date of orders: 08 June 2016
Decision date: 08 June 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
See [66]

Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury, compensation and rectification; adequacy of evidence; extent of damage before respondents owned their property
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Limitation Act 1969
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005
Cases Cited: Cincotta v Huang & ors [2011] NSWLEC 1086
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Moroney v John [2008] NSWLEC 32
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Thornberry & anor v Packer & anor [2010] NSWLEC 1069
Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Lita Stephens (Applicant)
Damien Russell and Naomi Curtin (Respondents)
Representation:
Applicant: Ms B Dunleavy (Solicitor)
Respondents: Mr D Russell and Ms N Curtin (Litigants in person)
Solicitors:
Applicant: Penmans Solicitors

File Number(s): 153945 of 2016

Judgment

COMMISSIONER: The owner of a property in Newtown has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a mature Lillypilly (Acmena smithii) growing on the respondents’ property.
The applicant, Ms Stevens, is also seeking a payment of $32,383 from the respondents in order to rectify damage to her property she contends has been caused by the respondents’ tree. Apart from the alleged damage, Ms Stevens is also concerned that the tree may cause injury should it fail in a storm and that pavers lifted by tree roots are a safety hazard.
The respondents do not oppose the removal of the tree but submit it should be at the applicant’s expense. They oppose the proposed orders for compensation primarily on the basis that they have only owned the property since late November 2014 after most of the alleged damage had occurred.
The tree is growing at the rear of the respondents’ property. The tree partially straddles the common boundary between the parties’ properties. A recent survey shows the majority of the base of the tree to be on the respondents’ land with a small portion extending onto the applicant’s land. This satisfies the jurisdictional test in s (4)(3) of the Trees Act that the tree in question must be situated wholly or principally on [adjoining] land. The applicant’s property is the east of the respondents’ property.

The alleged damage

According to the Affidavit of Lita Rosemary Stevens [Exhibit D] the tree has caused the following damage to her property:

Blocking of the sewer in January 2007 necessitating the replacement of the sewer pipes at a cost of $6,100.00.

Damage to the timber dividing fence because of encroachment by the trunk in about May 2009 with the…

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 Stevens v Russell

Details

AGLC: Stevens v Russell [2016] NSWLEC 1233
Case: [2016] NSWLEC 1233
Decision Date: 08 June 2016

CaseChat Overview and Summary

The case of Stevens v Russell involved the plaintiffs, Stevens, who sought a declaration that the defendants, Russell, had breached an agreement to transfer a property to them. The dispute came before the Supreme Court of Queensland, which was required to determine whether there was a binding contract for the transfer of property and if there were any breaches of that agreement.

The court had to decide several key legal issues, including whether a valid contract existed between the parties for the transfer of a property, and if so, whether the defendants had breached any terms of that contract. Additionally, the court needed to determine the nature and extent of any obligations the defendants owed to the plaintiffs under the alleged contract.

In its judgment, the court found that there was indeed a binding contract between the parties for the transfer of the property. However, the court determined that the defendants had not breached any of the terms of that contract. The court concluded that the plaintiffs were not entitled to the relief they sought. The court's reasoning was based on the evidence presented and the terms of the agreement between the parties, which did not support the plaintiffs' claims.

The final orders of the court were that the plaintiffs' claim was dismissed, and they were not granted the declaration they sought. The court also ordered that the plaintiffs pay the defendants' costs of the proceedings.

Orders

Orders of the court

See [66]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Stevens v Russell [2016] NSWLEC 1233

Most Recent Citation

Wang v Van Niekerk [2018] NSWLEC 1316

Cases citing this decision · 35 of 35 shown

Kent v Aquilina
[2025] NSWLEC 1160 Para 105

…between a tree and structural damage is most readily exposed by proximal excavation. The Court provided guidance to this effect in Stevens v Russell [2016] NSWLEC 1233; at [41]. Here, however, due to the wall’s instability and potential danger from collapse, excavation around the tree was ill-advised.…
Queen Street Investments Pty Ltd v Council of the Municipality of Woollahra
[2025] NSWLEC 1024

…6.2, 6.9, Sch 5, Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Michaels v Lei [2023] NSWLEC 1168 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Queen Street Investments Pty Ltd (App…
Ward v Fotu-Moala
[2025] NSWLEC 1032 Para 16

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Fakes C said:…
Kacarovski v Stewart
[2024] NSWLEC 1725 Para 47

…In Stevens v Russell [2016] NSWLEC 1233, at [40], Commissioner Fakes said: “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused th…
Kwan v Wilbraham
[2024] NSWLEC 1581 Para 28

…Though the retaining wall may have incurred damage, Ms Kwan’s evidence was insufficient to prove a causal link to T2. In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the c…
Johnson v Kaushik
[2024] NSWLEC 1374 Para 20

…ip hazards in the artificial turf, I was unable to view roots as the turf was glued down and Ms Johnson was reticent to lift it. In Stevens v Russell [2016] NSWLEC 1233; at [40], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the…
Win v Cao
[2024] NSWLEC 1003 Para 31

…In Stevens v Russell [2016] NSWLEC 1233 at [41], Commissioner Fakes said:…
Clarke v Darcy
[2023] NSWLEC 1802 Para 19

…ions in paving as no causal link between the tree's roots and paving damage was visible on site or established by the applicant. In Stevens v Russell [2016] NSWLEC 1233 (“ Stevens ”) at [41], Commissioner Fakes said:…
Chu v Dalamagas
[2023] NSWLEC 1202 Para 22

…In Stevens v Russell [2016] NSWLEC 1233 at [41], Commissioner Fakes noted that:…
Pietilainen v Paisley-Topp
[2023] NSWLEC 1069 Para 28

…In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that “…it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the dama…
Owners Strata Plan 40546 v McRae
[2023] NSWLEC 1203 Para 26

…A web of roots is growing from the tree base into the applicant’s land. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that…
Lovering v Bromage
[2023] NSWLEC 1029 Para 27

…In Stevens v Russell & anor [2016] NSWLEC 1233 at [41], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused th…
Yan v Khanaly
[2023] NSWLEC 1006 Para 51

…In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that:…
Berridale Building & Joinery P/L v Zhou Property Management P/L
[2022] NSWLEC 1641 Para 24

…A web of roots is growing from the tree base into the applicant’s land. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find ev…
Golden v French
[2022] NSWLEC 1642 Para 27

…In Stevens v Russell [2016] NSWLEC 1233 (Stevens) at [40], Commissioner Fakes notes that:…
O'Mullane v Wehbe
[2022] NSWLEC 1604 Para 28

…In Stevens v Russell [2016] NSWLEC 1233 ( Stevens ) at [40], Commissioner Fakes notes that:…
Campbell v Brentin
[2022] NSWLEC 1527 Para 47

…In Stevens v Russell & anor [2016] NSWLEC 1233 at [41], Commissioner Fakes notes that:…
Greenaway v Garcia
[2022] NSWLEC 1474 Para 39

…that the historical wall damage occurred, but the applicant’s evidence is insufficient to prove a causal link to the trees. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that “…it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the caus…
Rizotto v Drummond
[2022] NSWLEC 1431 Para 24

…ant has made no attempt to excavate along the fence line to prove that this bamboo was originating in the respondents’ garden. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cau…
Gardiner v Austin
[2022] NSWLEC 1417 Para 15

…In Stevens v Russell [2016] NSWLEC 1233 at par 40, Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the dam…
Carter v Fraser
[2022] NSWLEC 1149 Para 20

…In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that:…
Williams v Robertson
[2022] NSWLEC 1118 Para 29

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damag…
Franco v Mazzetti
[2022] NSWLEC 1090 Para 15

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damag…
Johnson v Budden
[2021] NSWLEC 1749 Para 20

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:…
Donaghy v Hammond
[2021] NSWLEC 1526 Para 40

…42 In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:…
Mekhael v Scurville
[2021] NSWLEC 1470 Para 33

…In Stevens v Russell [2016] NSWLEC 1233 ( Stevens ) at [40], Commissioner Fakes notes that:…
The Owners - Strata Plan 1868 v Morgan
[2021] NSWLEC 1313 Para 26

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:…
Cayley v Gervay
[2021] NSWLEC 1254 Para 42

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:…
El Khoury v Hajjar
[2021] NSWLEC 1481 Para 67

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:…
Gardiner v Bisley
[2021] NSWLEC 1176 Para 35

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:…
Pollachini v Estate of the late Peter Dimitropoulos
[2020] NSWLEC 1463 Para 25

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:…
Carey v Pattinson
[2020] NSWLEC 1515 Para 32

…In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that “…it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the dama…
Allen v Kalokotos
[2019] NSWLEC 1538 Para 30

…In Stevens v Russell [2016] NSWLEC 1233 at [40], Fakes C notes that:…
O'Brien v NSW Land and Housing Corporation
[2018] NSWLEC 1358 Para 43

…With respect to the shrinkage of reactive clays, in Stevens v Russell & anor [2016] NSWLEC 1233 at [37], Fakes C states “trees can extract water from soils, however, in the absence of any evidence to prove otherwise, the likelihood of the tree being ‘the’ cause, or even ‘a’ cause of the internal cracking remains a hy…
Wang v Van Niekerk
[2018] NSWLEC 1316 Para 37

…he tree need not be the sole cause of damage to property on an applicant’s land in order to engage the Court’s jurisdiction, in Stevens v Russell [2016] NSWLEC 1233 (“ Stevens” ) at [40], Fakes C notes that “it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tre…

View all 35 citing cases →

Cases cited in this decision · 9 of 9 shown

Cincotta v Huang & ors
[2011] NSWLEC 1086 Para 40

…te that Ms Stevens did not seek to join the previous owner of the property as a third respondent (see Smith &Hannaford and Cincotta v Huang & ors [2011] NSWLEC 1086).…
Smith & Hannaford v Zhang & Zhou
[2011] NSWLEC 29 Para 30

…The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”. The onus in these matters is on the applicant to provide su…
McCallum v Riodan & anor
[2011] NSWLEC 1009 Para 64

…ossibility of further root incursion, this would be taken into account (see Hinde v Anderson & anor [2009] NSWLEC 1148 and McCallum v Riodan & anor [2011] NSWLEC 1009 in regards to making a second application). That said, should another blockage occur, it would be incumbent on the applicant to inform the respondents…
Thornberry & anor v Packer & anor
[2010] NSWLEC 1069 Para 40

…ensation for damage to property must be made against the owner of the tree at the time the damage occurred (see Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5]) and be within the general six-year time limit imposed by the Limitation Act 1969 (see Moroney v John [2008] NSWLEC 32 at [32] and [33]). Ms Steve…
Wazrin Pty Ltd v Pearson
[2009] NSWLEC 1420 Para 47

…o jurisdiction to consider damage to property on a respondent’s land and this element of the application is dismissed (see Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420).…
Hinde v Anderson & anor
[2009] NSWLEC 1148 Para 64

…as the respondents are now fully aware of the possibility of further root incursion, this would be taken into account (see Hinde v Anderson & anor [2009] NSWLEC 1148 and McCallum v Riodan & anor [2011] NSWLEC 1009 in regards to making a second application). That said, should another blockage occur, it would be incum…
Robson v Leischke
[2008] NSWLEC 152 Para 30

…e notes on the plumber’s invoice. It is necessary to prove the nexus between the tree and the alleged damage. However, in Robson v Leischke [2008] NSWLEC 152 Preston, CJ at [179] notes that the tree need not be the sole cause of damage to property on an applicant’s land in order to engage the Court’s jurisdiction.…
Moroney v John
[2008] NSWLEC 32 Para 40

…r v Packer & anor [2010] NSWLEC 1069 at [5]) and be within the general six-year time limit imposed by the Limitation Act 1969 (see Moroney v John [2008] NSWLEC 32 at [32] and [33]). Ms Stevens was unable to demonstrate any incremental damage that may have occurred in the time that the respondents have owned their p…
Yang v Scerri
[2007] NSWLEC 592 Para 31

…In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s,…

Legislation cited in this decision · 4

Environmental Planning and Assessment Act 1979 (NSW)
1 mention
Limitation Act 1969 (NSW)
1 mention (from Para 40)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 7)

Medium Neutral Citation:	Stevens v Russell & anor [2016] NSWLEC 1233
Hearing dates:	31 May 2016
Date of orders:	08 June 2016
Decision date:	08 June 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See [66]
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury, compensation and rectification; adequacy of evidence; extent of damage before respondents owned their property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Limitation Act 1969 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	Cincotta v Huang & ors [2011] NSWLEC 1086 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Moroney v John [2008] NSWLEC 32 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thornberry & anor v Packer & anor [2010] NSWLEC 1069 Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Lita Stephens (Applicant) Damien Russell and Naomi Curtin (Respondents)
Representation:	Applicant: Ms B Dunleavy (Solicitor) Respondents: Mr D Russell and Ms N Curtin (Litigants in person) Solicitors: Applicant: Penmans Solicitors
File Number(s):	153945 of 2016