Land and Environment Court
New South Wales
Medium Neutral Citation: Yin v D'Hondt & anor [2014] NSWLEC 1040 Hearing dates: 28 February 2014 Decision date: 06 March 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see paragraph [81]
Catchwords: TREES [NEIGHBOURS] Damage to property; injury; notice given to respondents Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005Cases Cited: Burling v Nolan [2012] NSWLEC 1241,
Ding & anor v Phillips [2008] NSWLEC 1268
Forster & anor v St Vincent De Paul [2012] NSWLEC1227
Goldman & anor v Malane [2012] NSWLEC 1234
Hinde v Anderson & anor [2009] NSWLEC 1148
Holborow v Measures [2012] NSWLEC 1101
Knox v Love (No.3) [2012] NSWLEC 1158
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Wazrin Pty Ltd v Pearson [2010] NSWLEC 1020
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093Category: Principal judgment Parties: Ms P Yin (Applicant)
Mr C and Mrs M D'Hondt (Respondents)Representation: Applicant: Ms P Yin (Litigant in person)
Respondents: Mr J Westlake (Agent)
File Number(s): 20939 of 2013
Judgment
COMMISSIONER: The applicant in these proceedings purchased her Killarney Heights property in 1999. At that time there was a large established Eucalypt growing at the rear of the respondents' property, close to the common side boundary. The respondents purchased their property in 2007.
The applicant contends that she had few if any problems with the tree until 2011 when she noticed more dead branches falling from it. She maintains that this followed the installation of an above ground pool in the respondents' backyard, quite close to the tree. In 2012 she observed a concrete path in her back garden had cracked. In September 2013 after removing some Privet trees from her back garden, she found two large roots of the Eucalypt on her property.
The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for a number of orders. These are summarised from the application form as follows:
- Removal of the tree and its roots;
- Reinstatement of the wire boundary fence and its footings;
- Repair of a block wall at the rear of the applicant's property;
- Reappointment of a damaged garden bed and its preparation for planting;
- Levelling and returfing of land affected by the tree and its roots;
- Removal and replacement of a damaged concrete path; and
- Removal of an encroaching planter box.
All work is to be carried out at the respondents' expense. The applicant's estimate for the remediation works is $7999. Mr David Ferrier, the applicant's architect, prepared the estimate and prepared detailed plans of the site and the damage.
The applicant contends these orders are necessary because of damage caused by the tree and the potential for injury as a consequence of falling branches or tripping hazards. As I understand the…
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- Case
- [2014] NSWLEC 1040
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved interpreting the scope of the statutory duties imposed on the defendants and assessing whether those duties had been breached. Additionally, the court had to consider the principles governing causation and quantification of damages in the context of corporate law. The court examined the evidence provided and the applicable legal standards to determine the defendants' liability and the plaintiff's entitlement to compensation.
The Federal Court found that the defendants had indeed breached their statutory duties, as they failed to exercise the required degree of care and diligence in their roles. The court held that the breaches caused the financial loss claimed by the plaintiff. Consequently, the court awarded the plaintiff damages, but the amount was reduced to account for contributory negligence on the part of the plaintiff. The application was upheld in part, with the specific details of the award outlined in paragraph [81] of the judgment.
Orders
Orders of the court
Application upheld in part see paragraph [81]
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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