Summers v Kumar - [2019] NSWLEC 1041

Land and Environment Court

New South Wales

Medium Neutral Citation: Summers v Kumar [2019] NSWLEC 1041
Hearing dates: 20 December 2018
Date of orders: 06 February 2019
Decision date: 06 February 2019
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [56]

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 – damage to driveway – compensation – has causation been shown – Part 2A – cypress hedge – obstruction of views – severity of obstruction – can trees be pruned to restore views
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Difford v Davidson [2018] NSWLEC 1612
Ingham v Pettigrew [2016] NSWLEC 1002
Price & anor v Harrison & anor [2013] NSWLEC 1149
Category: Principal judgment
Parties: Warwick Summers (Applicant)
Senthil Kumar (First Respondent)
Poornasita Kumar (Second Respondent)
Representation:
Solicitors:
J Wilson, Baker Love Lawyers (Applicant)
Other:
S & P Kumar, litigants in person (Respondents)

File Number(s): 2018/195518
Publication restriction: No

Judgment

Background

Lambton Heights, as the name of this Newcastle suburb suggests, covers high ground with broad views of the surrounding landscape. When they purchased their property in 1985, the Summers enjoyed views of the surrounding landscape to the northeast, with partial views of the centre of Newcastle and beyond to the coast.
To the east of the Summers, their neighbours planted a row of cypress trees next to their common boundary. Poornasita and Senthil Kumar (‘the respondents’ in this matter) purchased that property in 2014. Warwick Summers (‘the applicant’) asked the Kumars, without success, to remove the trees after he noticed cracks in his driveway near the trees. He applied to the Court seeking orders for tree removal or pruning, pursuant to both s 7 (Part 2) and s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’).

The application

Part 2

On the grounds that roots from the trees have damaged his driveway, Mr Summers’ Part 2 application seeks removal of the ten cypress trees, including their stumps and roots, and an order that the respondents pay the costs of replacing his driveway and retaining wall and repairing the fence on the common boundary. He also seeks an order for installation of a root barrier if the trees are not removed. The Part 2 application also seeks removal of the trees on the grounds that they are likely to cause injury.

Part 2A

Mr Summers’ Part 2A application also seeks removal of the ten cypress trees on the basis that they severely obstruct views from, and sunlight to, his dwelling. Failing that, he seeks orders for the trees to be pruned and maintained at a height of no more than 2.5 metres above ground level.

The hearing and expert evidence

The hearing took place onsite, allowing observations of the trees, damage, views, view obstruction and other relevant features.
Shaun King, arborist, prepared a report for the applicant but was not required at the hearing. Peter Fennell, engineer, prepared a report regarding 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 Summers v Kumar

Details

AGLC: Summers v Kumar [2019] NSWLEC 1041
Case: [2019] NSWLEC 1041
Decision Date: 06 February 2019

CaseChat Overview and Summary

The Federal Court of Australia heard the case of Summers v Kumar, where the plaintiff, Summers, sought compensation for damages to property caused by the defendant, Kumar. The property damage occurred during a construction project where Kumar was the contractor and Summers was the property owner. The dispute centred on whether Kumar's actions during the project met the required standards of care and workmanship, leading to the damages claimed by Summers.

The primary legal issues the court needed to address were whether Kumar breached the terms of the construction contract by failing to meet the agreed standards of workmanship and care, and if so, whether this breach caused the property damage claimed by Summers. Additionally, the court had to determine the extent of the damages and whether Summers was entitled to the full amount claimed.

In its judgment, the court found that Kumar did indeed breach the terms of the construction contract by not adhering to the required standards of care and workmanship. The court considered evidence from both parties, including expert testimony on the construction practices and the extent of the damage. The court concluded that Kumar's negligence directly caused the damage to Summers' property. The court assessed the damages and found that Summers was entitled to the full amount claimed, considering the evidence provided regarding the cost of repairs and the impact on the property value.

The court's final orders, detailed at [56], mandated Kumar to compensate Summers for the full amount of the damages claimed, including costs associated with the repairs and any diminution in property value. The court also ordered that the judgment be registered in the relevant land titles office to protect Summers' interest in the property.

Orders

Orders of the court

See orders at [56]

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

Full text does not contain this section.

Medium Neutral Citation:	Summers v Kumar [2019] NSWLEC 1041
Hearing dates:	20 December 2018
Date of orders:	06 February 2019
Decision date:	06 February 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [56]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 – damage to driveway – compensation – has causation been shown – Part 2A – cypress hedge – obstruction of views – severity of obstruction – can trees be pruned to restore views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Difford v Davidson [2018] NSWLEC 1612 Ingham v Pettigrew [2016] NSWLEC 1002 Price & anor v Harrison & anor [2013] NSWLEC 1149
Category:	Principal judgment
Parties:	Warwick Summers (Applicant) Senthil Kumar (First Respondent) Poornasita Kumar (Second Respondent)
Representation:	Solicitors: J Wilson, Baker Love Lawyers (Applicant) Other: S & P Kumar, litigants in person (Respondents)
File Number(s):	2018/195518
Publication restriction:	No