Kulendran & anor v De Silva & anor [2015] NSWLEC 1035

Kulendran & anor v De Silva & anor [2015] NSWLEC 1035

The Court was not satisfied that the tree had caused damage sufficient to enliven or justify orders, and after considering s 12 it was not appropriate to order intervention based on minor fence damage. There was no evidence observed or presented indicating likely limb failure or whole tree failure in the near future, so the requirements of s 10(2) for likely future property damage or injury were not met.

Jurisdiction
Australia
Judgment Date
26 February 2015
Procedural Posture
Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['removal of Tree' 'future Damage to Property' 'future Injury to Persons' 'section 10(2) Threshold' 'minor Fence Damage']
['trees Disputes Between Neighbours' 'property'] ['removal of Tree' 'future Damage to Property' 'future Injury to Persons' 'section 10(2) Threshold' 'minor Fence Damage']

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Procedural Posture

Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the Callistemon salignus tree has caused, is causing or is likely in the near future to cause damage to the applicants' property." 'Whether the tree is likely to cause injury to a person.' 'Whether minor contact with or damage to the timber boundary fence warranted orders for intervention with the tree.']

Ratio Decidendi

The Court was not satisfied that the tree had caused damage sufficient to enliven or justify orders, and after considering s 12 it was not appropriate to order intervention based on minor fence damage. There was no evidence observed or presented indicating likely limb failure or whole tree failure in the near future, so the requirements of s 10(2) for likely future property damage or injury were not met.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']