Zhang v Long

[2007] NSWLEC 632

Land and Environment Court

of New South Wales

CITATION:	Zhang & anor v Long & anor [2007] NSWLEC 632
PARTIES:	APPLICANTS Rou Lan Zhang & Guo Xiong He RESPONDENTS Jeffery & Kathryn Long
FILE NUMBER(S):	20503 of 2007
CORAM:	Moore C - Murrell C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Compensation v rectification Apportionent when multiple causes of damage Contribution because of applicants' inaction
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	22 August and 18 September 2007
DATE OF JUDGMENT:	28 September 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Kildea, barrister INSTRUCTED BY Jack Rigg Solicitors RESPONDENTS Mr M Bonanno, solicitor McMahons National Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
MURRELL C
THYER AC

28 September 2007

07/20503 Rou Lan Zhang & Guo Xiong He v Jeffery & Kathryn Long

JUDGMENT

The consequence of the Court’s decision in this application is the making of formal Orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These formal orders are not reproduced as part of this decision but their terms are set out at the conclusion of this decision.

A copy the Court’s formal Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

The application

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The application is made by Ms Zhang and Mr He, residents of 1A Clissold St, Ashfield. The principal role taken for the applicants was undertaken by Ms Zhang and, for convenience we will refer only to her in the body of this decision.

3 The application concerns a Camphor Laurel (Cinnamomum camphora) (the tree) located near to the boundary of Ms Zhang’s property but located on the adjacent property to the west, 3 Clissold Street, owned by Mr and Ms Long (the Longs).

4 The application seeks two remedies. These are:

• First, that the tree and its roots be removed; and
• Second, that the Longs pay Ms Zhang $80,000 compensation for cracking and damage which she says has been caused to her dwelling because of tree root intrusion into and disturbance of the footings of her dwelling (this sum also includes a number of costs associated with the application).

The need for this determination

5 Although, as discussed below, at the site view, the Longs agreed to remove the tree at their expense, we note at the commencement of this decision that the Longs’ position of resisting, entirely, any liability whatsoever for rectification was pressed even to the final submissions of their advocate (and despite the concession on causation made by their own structural engineering expert during his evidence on the second day of the hearing).

Removal of the tree

6 As a result of discussions between the representatives of the parties, Mr Kildea, barrister for Ms Zhang, and Mr Bonanno, solicitor for the Longs, the first of the issues has been resolved and the Longs have agreed to remove the tree at their expense.

7 With respect to the Longs' proposed orders for removal of the tree, as will be obvious from the discussion in the remainder of this decision and the photographs which form part of it, we are satisfied that the tree has, in the past, caused damage to Ms Zhang's property. This finding gives us jurisdiction pursuant to s 10(2)(a) of the Act to order that the tree be removed.

8 The orders for the removal of the tree will be, therefore, be made, generally in the terms proposed by the Longs.

9 During the course of the site inspection on the first day of the hearing, we had the opportunity of inspecting:

• the interior and exterior of Ms Zhang's dwelling;
• cracking to the interior of the Longs’ dwelling (immediately to the west and slightly uphill of Ms Zhang's dwelling); and
• cracking to the interior of Ms O’Keefe's dwelling (which is the dwelling immediately to the east of and slightly downhill from Ms Zhang's dwelling).

10 The extent of the cracking of each of these three dwellings was different as, indeed, was the standard of maintenance, evidenced during these inspections, of dwelling and grounds of each of these three dwellings.

11 Ms O’Keefe is clearly a houseproud resident who pays considerable attention to the interior and exterior maintenance of her property which was, generally, in meticulous condition.

12 The other two residences each evidenced a much less responsible attitude by their owners to dwelling and grounds maintenance – indeed attitudes which showed scant regard to what might be societal norms in this regard.

13 In the case of the Longs, that is not a significant matter of relevant consideration in these proceedings except to the extent that the informality of their attitude to, for example, clearing leaves and other material from gutters (that was evidenced by the informal growth of several Camphor Laurel seedlings in the Longs’ gutters) limits, at least to some extent, the conclusions that we can draw, absent specific detailed expert evidence about cracking of the Longs’ dwelling, concerning the causation of that cracking.

14 Ms Zhang’s property maintenance also showed a number of deficiencies. Relevant to these proceedings, they primarily related to the unsatisfactory maintenance and repair of the guttering and roof drainage system for the western and north-western roof elements of the dwelling and the tree root damaged section of path along her northern boundary with the Longs’ property.

15 During the course of the inspection, our attention was also drawn, as was the attention of those taking part in the inspection, to cracking to the exterior side elevation of a two-storey freestanding Victorian-era residence located on the north-eastern corner of Clissold Street and Victoria Square – virtually opposite Ms Zhang’s and the Longs’ residences.

The witnesses

16 We heard evidence from two structural engineers, Mr Abelas for Ms Zhang and Mr Fisher for the Longs. They provided written reports and also gave informal evidence during the course of the site view and gave concurrent oral evidence in the course of the Court hearing on the second day.

17 The evidence of these experts was often in significant disagreement. However, a deal of it, particularly from Mr Fisher (as discussed in detail below), was of assistance to us in reaching a conclusion concerning the cracking of Ms Zhang's dwelling and how we should understand its causation.

18 In addition, we had the assistance of affidavits from Ms Zhang and the Longs, although the Longs were not required for cross-examination. We also had the assistance of oral evidence from Ms Zhang. Although her evidence was given with the assistance of an interpreter when needed (as Ms Zhang's primary language is not English), we are satisfied that she suffered no disadvantage as a consequence.

19 During the early stage of the proceedings, there was a deal of contest between the parties as to how we should treat the differences in the evidence of Mr and Ms Long, on one hand, and Ms Zhang, on the other hand. This was about the significantly different versions of conversations between them concerning the tree and cracking to Ms Zhang's residence. However, later, Mr Bonanno and Mr Kildea agreed that we should proceed on the basis that such differences should be regarded as arising out of the language barrier. As a consequence, we draw no conclusions or inferences, adverse to either party, from that conflicting evidentiary material. The only matters which we could consider appropriate to take into account are various dates or time periods when such communication took place rather than the content or any such communication. However, in the end, it was not necessary to do so.

20 There was one matter arising from Ms Zhang's oral evidence, to which we will return, in the context of our analysis of the issues, that is pertinent to note at this stage. That matter is that, in late 2003, Ms Zhang had internal rendering and/or plastering work undertaken in a number of rooms in the front half of her residence.

21 She was asked why she did not have this work undertaken in bedroom 3, the bedroom in the north-western corner of the main part of the dwelling (this bedroom being the room in which there is the most significant structural wall cracking). She indicated that she had considered having such work undertaken in this room but that the builder who was undertaking the work had told her that there was no point in doing so because cracking would simply continue to occur unless something had been done to deal with the cause of cracking (namely the tree located on the Longs’ property).

The tree

22 At this point, it is appropriate to give a brief description of the tree; its root structure; and the extent of the roots’ intrusion into and beyond the perimeter footings of Ms Zhang’s residence. It is also appropriate to make some comment as to the extent of the cracking to the exterior and interior walls of the residence.

23 The tree is, it is agreed, apparently self-sown and is likely to be somewhat more than 30 years old.

24 Neither the Longs nor Ms Zhang were able to give any evidence of any greater precision about the age of the tree. This is because both families had purchased their dwellings in the mid-1990s at, generally, the same time – with the Longs having purchased in 1995, a short time prior to Ms Zhang doing so in 1996.

25 The tree, as earlier noted, is on the Longs’ property immediately adjacent to the boundary between the two properties with its outer trunk only some 900 mm or so from the western wall of Ms Zhang's dwelling.

26 It has an extensive root system which has grown, inter alia, in the direction of and lapping around the north-western corner of the footings of Ms Zhang’s residence. A number of roots have also penetrated or passed under the footings and grown underneath the residence.

27 Attachment 1 was taken by Ms Zhang and shows a root which has been uncovered by excavation in the sub-floor space under Ms Zhang’s dwelling. It was her evidence that this root was located in the vicinity of and leading to a supporting pier for the kitchen of her dwelling.

28 Attachment 2 shows roots on the outside of Ms Zhang’s dwelling, in the immediate vicinity of the tree, which have cracked and lifted the concrete path which had been laid along the western side passage adjacent to Ms Zhang’s residence and between that residence and the somewhat dilapidated boundary fence with the Longs’ property

29 Part of this damaged path had been removed, by direction of the Court, in the period between the two days of the hearings of this matter, so that we could have some appreciation of the extent of the roots growing in this vicinity. However, no excavation was undertaken to show the size and depth of the roots within any lower elements of the root system as, we were informed, the density of the root growth had rendered such an exercise futile.

The compensation claim

30 The claim made by Ms Zhang is that the cost of complete rectification of the cracking of her dwelling should be met by the Longs as Ms Zhang says the cracking had been entirely caused by the roots of the tree.

31 The cost of this rectification was estimated to be ~ $80,000 inclusive of various expenses (other than legal costs). Mr Abelas gave evidence in support of this claim.

32 The nature of the works required and costings for them were provided in a report by Sydney Building Reports. Mr Abelas also provided a higher estimate but no detailed costings to support it.

33 Mr Fisher, on the other hand, gave evidence on behalf of the Longs to dispute the extent and method of the rectification required and the causation of the damage.

Contradictions in the engineers’ evidence

34 It is in this context that we can turn to consider the contradictory engineering evidence in those proceedings.

35 There were a number of significant and contradictory differences, on critical matters, in the evidence between the two engineering witnesses.

36 As a consequence, we are obliged to consider whether or not there is some basis upon which we should prefer the evidence of one witness over the other on the significant differences of professional opinion between them. We are satisfied that there are a number of bases, including our own observations of them during the course of the site view and during the course of the concurrent evidence, which permit us to reach such a conclusion.

37 The first such basis concerned cracking to the northern facade of the freestanding Victorian-era residence located on the north-eastern corner of Clissold Street and Victoria Square. This was expressly drawn to the attention of those taking part in the site view. However, Mr Abelas indicated that he was not aware of it. This is, however, only a minor element in our conclusion that we should prefer Mr Fisher's evidence to that from Mr Abelas where there is a direct contradiction between their positions and there is no other evidence on the same point upon which we could rely.

38 More tellingly, during the course of their oral evidence, a discussion took place as to the extent of the cracking in the walls of the outside toilet structure in the north-western corner of Ms Zhang’s dwelling.

39 In light of this exchange (outlined in the following paragraphs) and his general demeanour when giving oral evidence, we consider that he was, to a significant extent, acting as an advocate on his client’s behalf rather than providing his professional opinion in a dispassionate fashion. We note Mr Abelas had, at the commencement of his oral evidence, remedied the defect in his written statement arising from the absence of acknowledgement and adoption of the obligations of witnesses giving expert evidence in proceedings such as these,

40 Mr Fisher gave evidence that there was extensive cracking to the toilet structure. He considered that this had, in part, been caused by maintenance defects in the vicinity and, in part, by the growth of the tree’s roots but that this growth may have been stimulated by the paucity of maintenance at that point of the dwelling.

41 Mr Abelas, on the other hand, initially indicated that there was no cracking to the walls of the structure (he having undertaken a detailed inspection of Ms Zhang’s dwelling during preparation of his written report).

42 At our request, Mr Abelas was shown a copy of a number of photographs which formed part of Mr Fisher's written statement of evidence – two of which are Attachments 3 and 4. These photographs clearly show the extent of interior cracking of the southern and western walls of this outside toilet structure.

43 After being asked whether he still considered that there was no cracking to the structure, Mr Abelas conceded that cracking was present but he indicated that he considered that such cracking was merely “minor”.

44 In light of what is clearly shown in the photographs, such an assertion sits uncomfortably with the content of those photographs.

45 The second important matter which causes us to prefer Mr Fisher’s evidence on matters in conflict arises from the supplementary reports prepared at our direction on the second day of the hearing.

46 Mr Fisher made a significant (and quite proper) concession, contrary to the interests of his client, concerning the extent of the tree’s causation of damage to the north-western corner of Ms Zhang’s residence. Mr Fisher conceded that the north-western corner was the most significantly damaged area of the dwelling and that 50% to 75% of this damage had been or is being caused by the Longs’ tree. He explained that this damage has been caused by lifting because of upward pressure from the tree roots rather than by any subsidence or movement of the underlying soil profile upon which the footings were constructed. This explanation provides us with a significantly greater degree of confidence in his evidence than we could have in the evidence given by Mr Abelas.

Causation of damage to the north-western corner

47 Both experts agree that the damage to the north-western corner was the most significant damage to Ms Zhang’s dwelling. However, they disagreed as to the extent of causation by the tree – Mr Fisher giving the percentages outlined above and Mr Abelas giving a percentage range of 90% to 95% for causation by the tree.

48 We therefore accept the proposition that a significant portion of the damage to that part of the dwelling was, in fact, caused by the tree and causation by the tree’s roots would be in the 50% to 95% range defined by the conflicting expert opinions.

Causation of damage to Ms Zhang’s kitchen tiles

49 With respect to the extent to which the tree may have caused cracking to the kitchen tiling, we observed differences in the internal partitioning in the corresponding locations in Ms Zhang’s dwelling and in Ms O’Keefe’s dwelling. These two dwellings had, effectively, identical original designs.

50 Ms O’Keefe’s dwelling retains its original character. This includes, in its north-eastern corner, a kitchen and an adjacent but separate laundry divided from the kitchen by an internal wall.

51 In Ms Zhang’s dwelling the internal wall between the laundry and the kitchen has been removed to expand the kitchen area and the original fenestration of the kitchen and laundry areas has been removed and replaced with a single larger window to the kitchen area.

52 Cracking to the kitchen tiles in this area appeared to be along or in the vicinity of the prior internal wall between the original kitchen section and the original laundry section.

53 Although the photographic evidence of the tree roots shows a significant root (see Attachment 1) in the vicinity of a pier which Ms Zhang gave evidence supported the kitchen floor, we cannot be satisfied, on the basis of all the evidence before us and our observation of the differing impacts on the present internal layouts of the two otherwise identically designed dwellings, that this damage was not caused by or as a consequence of the internal wall alterations and/or as a consequence of shrinking and an expansion, over time, of the underlying reactive clay soil profile.

54 In this respect, we have also had regard to the sub-floor examination which was undertaken by Shirley and Partners, commissioned by Mr Fisher on behalf of the Longs, which is consistent with the conclusion which we have drawn on this point.

Causation of damage to other parts of Ms Zhang’s dwelling

55 It is now pertinent to consider matters relating to the causation of cracking in other parts of Ms Zhang’s dwelling.

56 Although cracking of the other parts of the dwelling is not as extensive as in the north-western corner, it was Mr Abelas’s evidence that this cracking, too, was caused by the tree.

57 Mr Fisher, on the other hand, attributed this cracking to the reactive clay upon which Ms Zhang’s dwelling and its neighbouring dwellings were constructed and the standard of footing construction (in the 1920’s era when these dwellings were constructed) which is not, in contemporary design terms, regarded as the appropriate design for footings constructed above such a soil profile

58 Mr Fisher said that this cracking to Ms Zhang’s dwelling was broadly consistent with that of the residences to the immediate east and west (which, as earlier noted, were also inspected during the site view).

59 He explained the nature of the process, which he described as “dishing and doming”, arose from the differential rates of drying out or moistening of the centre and outer perimeters of structures erected on such a reactive clay soil profile. Mr Abelas disputed the existence of such a phenomenon.

60 In this regard, we are left with a stark contradiction between the experts on the existence of such a phenomenon.

61 We consider it appropriate to accept Mr Fisher's evidence on this point in preference to that of Mr Abelas for two reasons.

62 The first of these is that which arises from the matters canvassed earlier relating to the contrast in the manner in which the two experts gave their evidence and the conclusion we drew about the comparative reliability of these two witnesses.

63 The second is that the proposition advanced by Mr Fisher is, in itself, inherently logically probable compared to the position advanced by Mr Abelas whose position we consider lacks such logic and, indeed, is counter-intuitive.

64 In support of this conclusion, while there were some degrees of minor difference in the extent of the cracking in the Long dwelling; the cracking in Ms Zhang’s dwelling (other than in the north-western corner); and in Ms O’Keefe’s dwelling (to the east), we are satisfied that it is appropriate to conclude that, broadly, the differences in this cracking could be explained by the differing degrees of grounds maintenance and external house maintenance undertaken on the three properties – particularly as the best maintained of these three properties, that owned by Ms O’Keefe, although showing cracking, showed significantly less cracking than either of the other properties viewed

65 Although Mr Abelas attempted to suggest that a small shrub or bush located in the south-western garden bed of Ms O’Keefe’s property may have contributed to the cracking of her dwelling, its size was such that we are not prepared accept this inference in the absence of other evidence in support of this proposition.

Conclusion on causation of cracking of Ms Zhang’s dwelling

66 We have, therefore, concluded that, with respect to the extent of the cracking in Ms Zhang's dwelling, other than in the north-western corner, we are unable to be satisfied that that cracking has been or is being contributed to by the growth of the roots of the tree.

67 As a consequence, we have concluded that the only element of the cracking to Ms Zhang’s dwelling which should be attributed to the tree is that which has taken place in the north-western corner of Ms Zhang’s dwelling.

Factors on apportionment of responsibility

68 We now turn to consider the factors which impact on the extent to which liability should be apportioned between the applicants and the respondents for the damage to the north-western corner of Ms Zhang’s dwelling.

69 In doing so, we note, before making our analysis, that Mr Bonanno submitted that proper consideration of all countervailing factors (Mr Fisher’s range; the existence of cracking we should accept was present in 1996; failure of Ms Zhang to act when she became properly informed of the problem; and her inadequate maintenance standards) should lead to a total extinguishment of Ms Zhang’s claim against the Longs.

70 Mr Kildea, on the other hand, adopted Mr Abelas’s general approach and also put, by inference, that, if we were minded to accept that causation of damage by the tree was confined to the north-western corner, we should adopt the upper end of Mr Abelas’s range (95%) and not apply any discount to it.

71 The first relevant issue for us to consider is what was the state of the cracking of the dwelling at the time it was purchased by Ms Zhang in 1996. This is a matter where, on first blush, there is a direct conflict in evidence between Ms Zhang and Ms Long.

72 First, Ms Zhang’s evidence is that there was no cracking of which she was aware when she purchased the dwelling.

73 We had no evidence as to whether or not she obtained a pre-purchase building inspection report. Attempts to ascertain whether this was done have failed, understandably, as the response from the solicitors who acted on her behalf at the time of purchase advised that documents relating to the purchase have not been retained as there was no statutory obligation for them to be so retained.

74 Ms Long, on the other hand, gave evidence that she had observed filling taking place to cracks on the exterior of Ms Zhang’s dwelling at about the time when it was being prepared for sale (in the process which led to its purchase by Ms Zhang).

75 Mr Bonanno endeavoured to obtain evidence from the previous owner of the property concerning its state at the time of its sale by him but he was not prepared to provide a statement and he has not been able to be subpoenaed to give evidence. We are not invited to draw any inference from the failure to call him to give evidence and we do not do so.

76 However although the evidence is, apparently, inconsistent, it is in fact not so.

77 Mr Fisher has given evidence of his inspection disclosing repairs to cracking including some tuck-pointing of external brickwork.

78 We are satisfied that Ms Long’s evidence establishes that, at the time when the property was being prepared for sale, in the mid-1990s, the vendor made an effort to repair or disguise external cracking to the dwelling and, indeed, previous crack filling was evident during the inspection.

79 We also consider it reasonable to assume, on the basis the vendor addressed that external cracking, that similar work was done to repair or disguise internal cracking to the dwelling.

80 Ms Zhang’s evidence that she did not notice any cracking at the time she purchased is, in fact, in our view, merely consistent with the fact that the efforts of the vendor to repair or disguise such cracking were, at least in the case of Ms Zhang, successful.

81 This conclusion fits with the evidence of Mr Fisher that, with respect to the north-western corner of Ms Zhang’s dwelling, the extent of the cracking now evidenced is consistent with such cracking having been caused since the time Ms Zhang purchased the dwelling.

82 On site, we observed the general state of the gutters as indicating considerable lack of maintenance and that, specifically in the north-western corner, in the guttering of the outside toilet, there was a hole in the gutter where water discharged directly to the cracked concrete paving below adjacent to the corner of the house.

83 The effect of this discharge was compounded by the fact that there was what can be described, at best, as an informal and structurally uncertain arrangement to transfer water from parts of the main building’s roof to the outside toilet on the north-western corner of the dwelling. These unaddressed deficiencies in the guttering ensured significant additional water supply to the roots of the tree in this vicinity.

84 We are satisfied that, had there been an appropriate maintenance regime to the roof plumbing in this area of Ms Zhang’s residence, although growth of the tree roots would not have been prevented, growth would not have been unnecessarily stimulated by the additional availability of water.

85 On the basis of this evidence and the earlier discussion of the evidence of Mr Fisher and Mr Abelas, we have reached the following conclusions with respect to the cracking in the north-western corner of the dwelling:

• First, cracking which is instantly visible to that portion of the dwelling has occurred since the dwelling was purchased by Ms Zhang;
• Second, the first occasion on which we can be reasonably satisfied that Ms Zhang was aware of the cracking and of the causation of the cracking by the tree was when she was informed by the person undertaking plastering or rendering work that she should not have that work undertaken in bedroom 3 (with that occurring in approximately September 2003);
• Third, the cracking to the north-western corner of the dwelling was, to at least 50% and up to 95%, occasioned by the growth of the roots of the tree since Ms Zhang purchased her dwelling; and
• Fourth, a significant element of the causation of the cracking to the north-western corner of the dwelling was the lack of appropriate maintenance by Ms Zhang of roof and ground drainage in the vicinity of that corner.

Method of rectification

86 Mr Fisher's proposed method of rectification for the cracking in the north-western corner was the demolition of the significantly cracked areas of bedroom 3 and the outside toilet structure and their reconstruction on a sounder basis after the tree (and its root pressure in the vicinity) had been removed [as earlier noted removal of the tree by the Longs has been agreed to by the parties].

87 Mr Abelas proposed not merely a more extensive range of works but a different methodology (including underpinning).

88 For the same suite of reasons to which we have earlier referred concerning differences in evidence between these witnesses, we accept Mr Fisher's evidence as the appropriate path to be followed in the north-western corner of the dwelling in preference to that proposed by Mr Abelas on this point.

Calculation of the rectification costs

89 With respect to the north-western corner, Mr Abelas, when asked, indicated that, if Mr Fisher's methodology were to be adopted, he expected that the cost of its implementation would be between $35,000 and $40,000.

90 At this point, we should note that, for reasons of professional indemnity insurance, Mr Fisher declined to give any cost estimates on matters of repair or rectification.

91 However, although Mr Fisher would not express a precise opinion on the cost of rectification of the north-western corner, he was prepared to say that he considered that the above range of estimates was not unreasonable.

92 To provide a comparison of costs, we have referred to the relevant rectification calculations in the Sydney Building Reports report, commissioned for Ms Zhang. Confining the rectification works to this area of the dwelling without any underpinning – as Mr Fisher did not consider this necessary given his proposed method of rectification [which we have adopted]), the costings in this report are generally consistent with Mr Abelas’s range.

93 On this basis, with some hesitancy, we have decided to adopt the upper limit of Mr Abelas’s range of costs (as Mr Fisher did not demur from that range). Therefore, we propose to proceed on the basis of necessary rectification to the north-western corner costing $40,000.

Apportionment of costs of rectification

94 We now turn to consider what proportion we should adopt to ascribe responsibility to Ms Zhang for the damage, rather than to the tree.

95 The relevant factors are, in our view:

• to what extent, if any, should the lack of maintenance of Ms Zhang’s dwelling result in a discount to the amount which might otherwise be ordered; and
• what, if any, discount should apply as a consequence of the omission by Ms Zhang to deal with the matter after she became aware, in late 2003, that the tree was an ongoing cause of cracking in the north-western corner of her dwelling.

96 On the first issue, we are satisfied that the lack of appropriate maintenance of Ms Zhang’s property must result in a significant discount.

97 Any problems caused by the tree would have been much less if Ms Zhang’s property had been reasonably maintained and the tree roots not promoted by discharge of roof water to the ground near the tree, and by additional soil moisture from water pooled by and entering through defective house perimeter paving. We note here, parenthetically, that Ms Zhang’s arboricultural report, from Dr Treegood, was of no assistance on this matter – a critically relevant issue.

98 We have decided that, on a combination of the range proposed by Mr Fisher (50% to 75% ascribable to the tree) and our observations above concerning the lack of appropriate maintenance stimulating root growth unnecessarily, we should adopt the lower end of Mr Fisher’s range.

99 We therefore conclude that, on this issue, the proportion of the cost of rectification for the north-western corner applicable to the tree is $20,000.

100 As to any discount for time, we are satisfied that Ms Zhang had sufficient and adequate notice, from late 2003, that the tree was a significant and ongoing cause of problems in the north-western corner of her dwelling – a fact established by the builder/renderer communicating this to her at that time. We consider that, as a consequence of this knowledge, she took (at best) limited and insufficient steps to deal with this matter of some importance to the structural integrity of her dwelling.

101 Although there may have been language difficulties and significantly more complex procedural requirements to pursue remedies available prior to the passage and commencement of the Act, we are of the opinion that the effort made by Ms Zhang since that time was disproportionately low when compared to the certainty of ongoing damage of which she was then aware. As a consequence, a discount for this four-year hiatus leading up to the consideration of this application under the Act should apply.

102 We therefore conclude that it is appropriate to apply a one-third discount to the cost of rectification for the north-western corner applicable to the tree. This discount reflects the proportion of the period of time when she has been on notice of the seriousness of the problem in the north-western corner of her dwelling compared to the period of time for which she has owned the dwelling.

103 Applying this discount to the residual amount which would otherwise be ordered as a consequence of the tree-applicable cost of rectification for the north-western corner, gives $13,350 [rounded to the nearest $50] – being two-thirds of $20,000.

104 Hence, we conclude that the Longs have a liability to Ms Zhang of $13,350 for their tree’s damage to Ms Zhang’s dwelling.

Compensation or re-imbursement?

105 Having reached the above conclusions about quantum, we now turn to deal with the question of whether we should make a direct order for payment of financial compensation or whether we should make any payment contingent on completion of the necessary works to effect rectification of the damage in the north-western corner of Ms Zhang’s dwelling.

106 The Act draws a distinction between payment for or reimbursement of the cost of works [s 9(2)(h)] and compensation for damage [s9(2)(j)].

107 Mr Kildea submitted that, in the present circumstances, we should order compensation rather than re-imbursement based on completion of rectification.

108 Although, to date, the Court has generally dealt with such matters by requiring complete or proportionate reimbursement of the cost of works carried out, we accept that each case should be considered on its merits and that no “Tree Dispute Principle” has yet been developed by the Court which should be considered for application in these circumstances.

109 During the course of Ms Zhang’s oral evidence, we were provided with evidence of her family’s financial circumstances. We do not need to set these out in great detail but there are a number of relevant points, in our assessment. These are:

• Ms Zhang does not work but looks after her children fulltime;
• Mr He, the second applicant and Ms Zhang’s husband, works full-time but earns only a modest income;
• Ms Zhang thought that, if the family had to contribute to rectification works, they would be able to afford about $6,600 per annum for this (her evidence being she expected the family could save about $20,000 over three years); and
• The house is unencumbered as it had been purchased with the assistance of funds from two sources – a gift from her father and a legacy she had inherited.

110 From these factors (assuming Ms Zhang’s employment status did not change), the family could reasonably be expected to fund its portion of the necessary rectification works to the north-western corner of the dwelling (accepting that this proportion would be confined to the balance of the cost after deduction of the Longs’ contribution) by savings or a modest mortgage within their capacity to service.

111 Mr Kildea asked us to consider the costs of the proceedings to Ms Zhang as part of our consideration of her financial capacity. It is certain from the amount of documentary material and this being a two-day hearing with counsel and an instructing solicitor for Ms Zhang (with no criticism to be inferred from this observation of fact) that Ms Zhang’s legal costs will be substantial. However, these costs, too, could be accommodated within the amount of such a modest mortgage on an otherwise unencumbered property.

112 We therefore turn to whether or not we should proceed on a rectification regime utilizing s 9(2)(h) of the Act or a compensation regime utilizing s 9(2)(j).

113 It was obvious from the site view that the present state of bedroom 3 makes it virtually uninhabitable. Unless rectified not merely by removal of the tree (which is to occur) but also with repair of the cracking and rectification of the roof and ground drainage issues in the north-western corner of the dwelling, this problem would only continue to increase.

114 We consider that, on balance, the likely attendant health and occupation risks, if the Court does not frame its orders in a fashion which promotes proper rectification, are unacceptable.

115 The consequence is that we are satisfied that, in the circumstances of this case, it is appropriate to require that the payment to be made by the Longs should be contingent upon Ms Zhang having undertaken the necessary works to deal with the damage to the north-western corner of her dwelling.

Time for effecting rectification

116 The parties differed on how much time Ms Zhang should be permitted to effect rectification if we were to follow the path adopted immediately above.

117 Mr Kildea sought two years and Mr Bonanno proposed that the period should be limited to completion within one year.

118 We have decided that neither position is appropriate and that a longer period – three years – should be allowed. Such a longer period, in our view, provides greater choice and opportunity for Ms Zhang to save toward her portion of the rectification as well as digesting the costs of these proceedings. In reaching this conclusion, we have had particular regard to her family circumstances set out earlier.

119 It is not clear whether development consent from Ashfield Council is required for the necessary rectification works. The longer period will also lessen any pressure on Ms Zhang if consent is required.

120 There is no prejudice to the Longs in this position given our conclusions below concerning capping of the quantum for which they are liable.

If Ms Zhang decides to sell

121 We have also considered whether we should allow for the possibility that Ms Zhang decides that the burden of rectification is beyond her – whether or not for financial or other family reasons – and she decides to sell the dwelling on an “as is” basis.

122 We are satisfied that, if so offered for sale, the selling price would be affected by the cracking – particularly in bedroom 3 – and be discounted as a consequence.

123 We consider it equitable, if these circumstances were to arise within three years from the date of the orders, the Longs should pay Ms Zhang the determined amount. This payment would be (at least some) compensation for any discount to the selling price.

124 There is no prejudice to the Longs in this position given our conclusions immediately below concerning capping of the quantum for which they are liable.

Capping of the quantum

125 We have considered whether or not we should propose orders based on a defined percentage of the lowest of multiple quotes for the rectification works rather than setting the simple quantum as calculated earlier.

126 Given that we have accepted the upper end of Mr Abelas’s estimate and that we have concluded, for the reasons set out above, to permit Ms Zhang an extended period of time within which to complete the works, we have decided that the desirable corollary of these is that the Longs’ financial exposure should be capped at the amount calculated earlier. Our proposed orders reflect this conclusion.

Costs of reports commissioned by Ms Zhang

127 Three reports have been tendered on Ms Zhang’s behalf in these proceedings. These were from:

• An arborist trading as Dr Treegood. The initial inspection and subsequent report cost a total of $1,137;

• Mr Abelas. This report cost $420; and
• Sydney Building Reports who provided a report on costs of rectification. This report cost $975.

128 Ms Zhang seeks reimbursement for the cost of each of these reports.

129 As to the report by Dr Treegood, after careful consideration of the matters canvassed in it and its general irrelevance to the issues between the parties, we do not consider that the cost should be reimbursed to Ms Zhang. It merely stated the totally obvious. It did not canvass any other relevant matters relating to drainage or other water access issues.

130 The imperative for the Longs to agree to the removal of the tree came, we consider, from the making of the application itself and the direction given at callover for the Longs to propose any alternative orders to those sought by Ms Zhang. This report would not have assisted that decision making process.

131 As to the report by Mr Abelas, we found this of limited reliability (consistent with our general assessment of his evidence over all). However, we do not consider that his report was entirely without value in the proceedings.

132 We are concerned that the report recommended an underpinning company of which his son was a director without this fact being disclosed – particularly when dealing with a client who, prima facie, is not commercially experienced and for whom English is her second, significantly less proficient language. However, on balance, we are satisfied that this reflects poorly on his ethics rather than his professional competence and we have not taken this into account on our assessment of his report or on the question of reimbursement for it.

133 On the other hand, again consistent with our general approach to his evidence over all, we would discount the amount to be reimbursed by the Longs to reflect the value of his participation and his report. We therefore propose to allow a claim for 50% of the cost of his report.

134 As to the report by Sydney Building Reports, we are satisfied that this was a proper and genuine, traditional professional report on the cost estimates of a range of possible rectification works. As noted earlier, we have found it useful in providing a check of the approach we have taken on quantum. It is appropriate that Ms Zhang be reimbursed the full cost of this report.

135 Therefore, the Longs should reimburse Ms Zhang a total of $1185 toward the cost of these reports.

136 As a consequence of the forgoing, noting the agreement of the respondents that the tree should be removed at their expense and noting that orders (1) to (12) broadly reflect the orders in this regard proposed by the respondents, the application is granted in part and the orders of the Court are:

1. The respondents are to remove the Camphor Laurel (Cinnamomum camphora) located adjacent to the boundary of the applicants’ property by cutting the two first order structural branches to 1 m stumps;
2. Immediately after cutting, both stumps are to be ringbarked;
3. The ringbark wound in (2) is to be 100mm in depth located 200mm from the top of each stump;
4. The ringbark wound area of each stump is to be applied uniformly by brush with undiluted herbicide with glyphosate as the active ingredient;
5. The stumps and their roots are not otherwise to be disturbed during the process in (2) to (4);
6. The work in (1) to (4) is to be completed within 28 days of these orders;
7. The work in (1) to (4) is to be carried out by an AQF level 3 equivalent or higher arborist with appropriate insurances;
8. For one month after the completion of the work in (1) to (4), the respondents are to monitor the stumps and any exposed roots for the development of new shoots;
9. If new shoots are observed, the respondents are to repeat the poisoning in (4) by ringbarking a further 200mm down the stump;
10. If further new shoots are observed one month after (9) is completed, (9) is to be repeated;
11. The arborist in (7) is to grind the stumps and all roots to the east of the stumps, to the boundary of the applicants’ property, to 300mm below ground level; and
12. The work in (11) is to be completed no later than 90 days after the date of these orders;
13. The respondents are to pay the applicants the sum of one thousand one hundred and eighty-five dollars ($1,185.00) within 28 days of the date of these orders;
14. The respondents are to pay the applicants the sum of thirteen thousand three hundred and fifty dollars ($13,350.00) within 28 days of service on the respondents of a receipted account for the demolition and reconstruction of the effected areas of the north-western corner of the applicants’ dwelling;
15. If the applicants sell the property without undertaking demolition and reconstruction of the effected areas of the north-western corner of the applicants’ dwelling with settlement and transfer of title taking place before the expiry of three (3) years from the date of these orders, the respondents are to pay the applicants the sum of thirteen thousand three hundred and fifty dollars ($13,350.00) within 28 days of service on the respondents of proof of transfer of title from the applicants to the purchaser;
16. Order (14) lapses at the expiry of three (3) years from the date of these orders if a receipted account for the demolition and reconstruction of the effected areas of the north-western corner of the applicants’ dwelling is not served on the respondents by that time;
17. Order (15) lapses at the expiry of three (3) years from the date of these orders if the applicants sell the property without undertaking demolition and reconstruction of the effected areas of the north-western corner of the applicants’ dwelling and a demand for payment pursuant to order (15) accompanied by proof of transfer of title from the applicants to the purchaser is not served on the respondents before the expiry of three (3) years from the date of these orders; and
18. The exhibits, other than Exhibit C, are returned.

Tim Moore

Commissioner of the Court

Jan Murrell

Commissioner of the Court

Peter Thyer

Acting Commissioner of the Court