Wang v Geyer [2024] NSWLEC 1257

Wang v Geyer [2024] NSWLEC 1257

Some of the respondents' trees caused and were likely to cause damage to the applicants' fence and retaining wall, engaging s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006; respondents must remove/prune certain trees and pay compensation for retaining wall repair. The existing fence was in significant need of replacement, primarily due to natural weathering and with both parties contributing equally to its decline; a Colorbond fence (Ironstone) must be installed, with costs apportioned equally. The applicants' wire mesh fence works were not urgent, no proper notice was served, and so no compensation is ordered for those works. No risk of injury to persons sufficient to...

Jurisdiction
Australia
Judgment Date
16 May 2024
Procedural Posture
Tree and Dividing Fence Dispute (class 2, Land and Environment Court of Nsw) / Judgment After Final Hearing
Outcome
Orders made for removal/pruning of trees by respondents, compensation for retaining wall damage, replacement of fence posts and erection of Colorbond fence (Ironstone) with costs to be shared equally. Applicants to remove wire mesh fence at their own cost; no compensation for urgent fencing works. No order as to...
Legal Topics
['dividing Fences' 'tree Disputes Between Neighbours' 'compensation for Property Damage' 'jurisdiction and Procedure Under Trees (disputes Between Neighbours) Act' 'urgent Fencing Works' 'apportionment of Costs']
['property Law' 'environmental Law' 'civil Procedure'] ['dividing Fences' 'tree Disputes Between Neighbours' 'compensation for Property Damage' 'jurisdiction and Procedure Under Trees (disputes Between Neighbours) Act' 'urgent Fencing Works' 'apportionment of Costs']

Case Brief

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Procedural Posture

Tree and Dividing Fence Dispute (class 2, Land and Environment Court of Nsw) / Judgment After Final Hearing

Legal Issues

  1. 1 ["Whether the respondents' trees caused or are likely to cause damage to the applicants' property under s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006" 'Whether risk of injury to persons is posed by the trees under s 10(2)(b)' 'Whether compensation is payable for urgent fencing works and damage to the fence and retaining wall' 'Whether the wire mesh fence constitutes urgent fencing work under s 9 Dividing Fences Act 1991' "Whether the current fence constituted a 'sufficient dividing fence'" 'Allocation of costs of tree removal, fence, and associated works']

Ratio Decidendi

Some of the respondents' trees caused and were likely to cause damage to the applicants' fence and retaining wall, engaging s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006; respondents must remove/prune certain trees and pay compensation for retaining wall repair. The existing fence was in significant need of replacement, primarily due to natural weathering and with both parties contributing equally to its decline; a Colorbond fence (Ironstone) must be installed, with costs apportioned equally. The applicants' wire mesh fence works were not urgent, no proper notice was served, and so no compensation is ordered for those works. No risk of injury to persons sufficient to...

Court Disposition

Orders made for removal/pruning of trees by respondents, compensation for retaining wall damage, replacement of fence posts and erection of Colorbond fence (Ironstone) with costs to be shared equally. Applicants to remove wire mesh fence at their own cost; no compensation for urgent fencing works. No order as to...

Orders

  • ['Within 7 days, respondents to pay applicants $1,870.00 as compensation for retaining wall repairs per MDC Bricklaying Contractors quote.' 'Respondents to remove Trees 1, 2, 9, 14, 17 (dead), and 18 (per Coulter report) and poison Trees 1 and 18 at their expense, within 50 days, using AQF Level 3 arborists.'...