Boustany v Kondos [2018] NSWLEC 1194

Boustany v Kondos [2018] NSWLEC 1194

The tree caused the damage to the garage, so the Court had power to make orders, but the applicants built the garage close to an existing tree with awareness of its presence and the resulting growth-related damage was foreseeable. Because the Court was not satisfied, in the absence of written correspondence and given conflicting evidence, that the respondents knew of the damage before Council's 2017 advice, and because the respondents then removed the tree promptly at their own expense, there was no basis to shift any repair cost to the respondents or make compensation orders.

Jurisdiction
Australia
Judgment Date
19 April 2018
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Onsite Hearing; Application for Orders Requiring Respondents to Pay for Garage Repairs
Outcome
The application is dismissed.
Legal Topics
['damage to Garage Caused by Tree' 'cost of Rectifying Tree Damage' 'existing Tree Near Later Built Structure' 'notice of Damage to Tree Owner']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court'] ['damage to Garage Caused by Tree' 'cost of Rectifying Tree Damage' 'existing Tree Near Later Built Structure' 'notice of Damage to Tree Owner']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 (nsw) / Onsite Hearing; Application for Orders Requiring Respondents to Pay for Garage Repairs

Legal Issues

  1. 1 ["Whether the Norfolk Island Pine caused damage to the applicants' garage within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether, after considering s 12 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), the respondents should bear the cost of repairing the garage.' 'Whether the respondents knew of the damage early enough that inaction by them justified apportioning repair costs to them.']

Ratio Decidendi

The tree caused the damage to the garage, so the Court had power to make orders, but the applicants built the garage close to an existing tree with awareness of its presence and the resulting growth-related damage was foreseeable. Because the Court was not satisfied, in the absence of written correspondence and given conflicting evidence, that the respondents knew of the damage before Council's 2017 advice, and because the respondents then removed the tree promptly at their own expense, there was no basis to shift any repair cost to the respondents or make compensation orders.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']