Wang v Van Niekerk - [2018] NSWLEC 1316

Land and Environment Court

New South Wales

Medium Neutral Citation: Wang v Van Niekerk [2018] NSWLEC 1316
Hearing dates: 31 May 2018
Date of orders: 12 June 2018
Decision date: 12 June 2018
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
1)   The claim with respect to the building damage is dismissed.
2)   Mrs Van Niekerk is to pay Mr Wang for the full cost of reinstatement of a gently mounded surface over the roots of the 3 m2 rectangle located by measuring a one metre distance from the edge of the major woody root in a south, east and westerly direction. No roots are to be severed or damaged by these works. Mr Wang is to get 3 quotes for these works including removal of about 2.5m2 of the raised concrete pieces, and provide a paid invoice based on the least expensive quote to LJ Hooker within 28 days of the works being completed. Mrs Van Niekerk is to pay the sum of the invoice to Mr Wang within 28 days of receipt of invoice.
3)   If such receipt account is not presented to Mrs Van Niekerk within 12 months of the date of this hearing this order lapses.
4)   Mrs Van Niekerk is liable to pay $974.50 to Mr Wang within 28 days of the hearing, this being reimbursement of 50% of the Plumbing costs, the invoices of which are included in Mr Wang’s application
5)   The claim with respect to the tree removal is dismissed.

Catchwords: TREES [DISPUTES BETWEEN NEIGHBOURS]: Damage to property; compensation for damage.
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Heritage Act 1977
Land and Environment Court Act 1979
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Colling v Wilson [2009] NSWLEC 1061
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Stevens v Russell [2016] NSWLEC 1233
Woo v Chan [2010] NSWLEC 1317
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Andrew Wang (Applicant)
Anne Christine Van Niekerk (Respondent)
Representation:
Counsel:
Dr J Smith (Respondent)
Solicitors:
Litigant in person (Applicant)
Carrol and O’Dea Lawyers (Respondent)

File Number(s): 2018/80084
Publication restriction: No

Judgment

ACTING COMMISSIONER: This is an application, pursuant to s 7 Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Yi Pu Wang of Newtown. It concerns a Tallowood (Eucalyptus microcorys) (the tree) located very close to the common side boundary in the rear yard of the neighbouring property which is owned by Mrs Anne Christine Van Niekerk.

Background

The applicant’s son, Mr Andrew Wang, purchased this property at auction, without a building inspection, in late 2012. It is a two storey terrace attached to the respondent’s property, with a frontage facing approximately west. The shared boundary therefore runs approximately west to east. The property is currently tenanted. Both Mr Andrew Wang and the applicant, Mr Yi Pu Wang were…

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 Wang v Van Niekerk

Details

AGLC: Wang v Van Niekerk [2018] NSWLEC 1316
Case: [2018] NSWLEC 1316
Decision Date: 12 June 2018

CaseChat Overview and Summary

The dispute between Wang and Van Niekerk was heard in a tribunal, likely a small claims court, and involved issues of property damage and related costs. Wang, the plaintiff, alleged damage to his property due to the removal of a tree on Van Niekerk's property. Van Niekerk, the defendant, was accused of causing harm to Wang’s property by performing tree removal activities. Wang sought compensation for the damage to his property and for plumbing costs incurred due to the alleged tree removal.

The legal issues before the court were the extent of damage caused by the tree removal and the corresponding compensation due to Wang. The court had to determine if the tree removal by Van Niekerk indeed caused damage to Wang’s property, and if so, the appropriate measure of compensation. Additionally, the court examined whether Wang was entitled to reimbursement for his plumbing costs.

In its reasoning, the court concluded that while the tree removal activities did cause some damage, the extent of damage was not significant enough to warrant full compensation for the building damage. However, the court found that Wang was entitled to compensation for the reinstatement of a gently mounded surface over the roots of a specific area of his property. The court also ordered that Van Niekerk reimburse Wang for half of his plumbing costs. The specific order required Wang to obtain quotes for the reinstatement works, submit the least expensive quote to Van Niekerk, and be reimbursed within a stipulated period. The court dismissed the claim for tree removal costs.

The final orders mandated that Van Niekerk compensate Wang for the reinstatement of the property surface and half of the plumbing costs, with detailed instructions on how the compensation should be calculated and paid. The claims regarding the building damage and the full tree removal costs were dismissed.

Orders

Orders of the court

The orders of the Court are:

1) The claim with respect to the building damage is dismissed.

2) Mrs Van Niekerk is to pay Mr Wang for the full cost of reinstatement of a gently mounded surface over the roots of the 3 m2 rectangle located by measuring a one metre distance from the edge of the major woody root in a south, east and westerly direction. No roots are to be severed or damaged by these works. Mr Wang is to get 3 quotes for these works including removal of about 2.5m2 of the raised concrete pieces, and provide a paid invoice based on the least expensive quote to LJ Hooker within 28 days of the works being completed. Mrs Van Niekerk is to pay the sum of the invoice to Mr Wang within 28 days of receipt of invoice.

3) If such receipt account is not presented to Mrs Van Niekerk within 12 months of the date of this hearing this order lapses.

4) Mrs Van Niekerk is liable to pay $974.50 to Mr Wang within 28 days of the hearing, this being reimbursement of 50% of the Plumbing costs, the invoices of which are included in Mr Wang’s application

5) The claim with respect to the tree removal is dismissed.

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.

Medium Neutral Citation:	Wang v Van Niekerk [2018] NSWLEC 1316
Hearing dates:	31 May 2018
Date of orders:	12 June 2018
Decision date:	12 June 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: 1) The claim with respect to the building damage is dismissed. 2) Mrs Van Niekerk is to pay Mr Wang for the full cost of reinstatement of a gently mounded surface over the roots of the 3 m2 rectangle located by measuring a one metre distance from the edge of the major woody root in a south, east and westerly direction. No roots are to be severed or damaged by these works. Mr Wang is to get 3 quotes for these works including removal of about 2.5m2 of the raised concrete pieces, and provide a paid invoice based on the least expensive quote to LJ Hooker within 28 days of the works being completed. Mrs Van Niekerk is to pay the sum of the invoice to Mr Wang within 28 days of receipt of invoice. 3) If such receipt account is not presented to Mrs Van Niekerk within 12 months of the date of this hearing this order lapses. 4) Mrs Van Niekerk is liable to pay $974.50 to Mr Wang within 28 days of the hearing, this being reimbursement of 50% of the Plumbing costs, the invoices of which are included in Mr Wang’s application 5) The claim with respect to the tree removal is dismissed.
Catchwords:	TREES [DISPUTES BETWEEN NEIGHBOURS]: Damage to property; compensation for damage.
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Heritage Act 1977 Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Colling v Wilson [2009] NSWLEC 1061 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Woo v Chan [2010] NSWLEC 1317 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Andrew Wang (Applicant) Anne Christine Van Niekerk (Respondent)
Representation:	Counsel: Dr J Smith (Respondent) Solicitors: Litigant in person (Applicant) Carrol and O’Dea Lawyers (Respondent)
File Number(s):	2018/80084
Publication restriction:	No