Zangari v Miller [2010] NSWLEC 1012

Zangari v Miller [2010] NSWLEC 1012

The applicants bore the onus of proving a connection between the Liquidambar and the alleged damage. Although it was possible that the pavement had been lifted by roots, neither the engineer nor the arborist confirmed the presence of roots and the evidence did not prove, on the balance of probabilities, that roots of the Liquidambar caused the problem. Because the tests in s10(2) were not adequately satisfied, the Court dismissed the application.

Jurisdiction
Australia
Judgment Date
19 January 2010
Procedural Posture
Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application dismissed in its entirety.
Legal Topics
['damage to Property' 'compensation' 'tree Removal' 'risk of Injury']
['trees (neighbours)' 'property'] ['damage to Property' 'compensation' 'tree Removal' 'risk of Injury']

Case Brief

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Procedural Posture

Application Pursuant to S7 of the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the respondents' Liquidambar caused, is causing, or is likely in the near future to cause damage to the applicants' property." 'Whether the tree posed a risk of injury to persons.' 'Whether the Court should order removal of the tree and compensation for damage to the pool surround.' 'Whether leaf and fruit drop from the tree justified intervention by the Court.']

Ratio Decidendi

The applicants bore the onus of proving a connection between the Liquidambar and the alleged damage. Although it was possible that the pavement had been lifted by roots, neither the engineer nor the arborist confirmed the presence of roots and the evidence did not prove, on the balance of probabilities, that roots of the Liquidambar caused the problem. Because the tests in s10(2) were not adequately satisfied, the Court dismissed the application.

Court Disposition

Application dismissed in its entirety.

Orders

  • ['The application in its entirety is dismissed.']