The Owners - Strata Plan 52066 v Trudgian

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Owners – Strata Plan 52066 v Trudgian & anor [2015] NSWLEC 1017
Hearing dates:	28 January 2015
Date of orders:	04 February 2015
Decision date:	04 February 2015
Jurisdiction:	Class 2
Before:	Fakes C, Galwey AC, Durland AC
Decision:	The application is dismissed
Catchwords:	TREES [NEIGHBOURS]: Damage to property, location of previous stump, sufficiency of evidence, contributing factors
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Act 2005
Cases Cited:	Awad v Hardie (No 2) [2010] NSWLEC 1258 Baker v Grabovac [2010] NSWLEC 1289 Drolz v Sinclair [2008] NSWLEC 34 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	The Owners Strata Plan 56066 (Applicant) Karen and John Trudgian (Respondents)
Representation:	Counsel: Applicant: Mr B McKenzie (Agent) Respondents: Mr J Doyle (Barrister) Solicitors: Respondents: Robert Silberberg
File Number(s):	20935 of 2014

Judgment

1. COMMISSIONERS:   The applicant contends that trees growing on the respondents’ property in Bellevue Hill have caused damage to a stone retaining wall on the applicant’s property. The applicant asks the Court to make the following orders:

1. That the respondents, at their own costs, remove the trees (T1 and T2) causing damage to the applicant’s retaining wall.

2. That the respondents, at their own cost, create a trench close to the boundary between the lands to prevent invasive roots from trees causing damage to the applicant’s retaining wall in future.

3. That the respondents contribute 80% of the costs to repair the applicant’s damaged retaining wall. Quotes and recommendations for the works are enclosed.

4. That the respondents contribute 50% of the costs to dismantle and rebuild the dividing fence between the lands in the cause of removing the trees and repairing the applicant’s retaining wall. (Cost to be determined.)

5. That the respondents refrain from planting any tree in close proximity to the dividing fence.

6. That the respondents pay the applicant’s costs in relation to this application. (Invoices enclosed.) [The claim form includes a figure of $14,375.22.]

2. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). With respect to the last element of the claim, Commissioners of the Court do not have the power to order the payment of legal costs, costs of expert reports, application fees and other similar expenses. Costs must be ‘costs’ within the meaning of the Uniform Civil Procedure Act 2005 and the Land and Environment Court Rules 2007. Should any party wish to claim costs, a separate Notice of Motion must be heard and determined by a Judge or the Registrar of the Court.

3. By way of background, the respondents purchased their property in November 2007. The applicant contends that the damage to the retaining wall was drawn to the respondents’ attention in 2009 by Mr McKenzie, an owner of one of the units in the applicant’s property. According to Mr McKenzie, the damage was discovered by a…