Bhuta v Cefai [2023] NSWLEC 1330

Bhuta v Cefai [2023] NSWLEC 1330

The Court found that roots from the Weeping Fig caused uplift damage to one fence panel and restricted use of lawn but did not present a likely risk of injury, and that removal of the trees was not appropriate where limited, practical remedial measures would suffice. Orders for pruning, topdressing, and fence repair—at respondents' expense—were adequate to remedy the proven hinderances, and full removal or root restriction was not justified.

Parties
First Applicant: Arun Bhuta; Second Applicant: Anita Bhuta; First Respondent: Martin Cefai; Second Respondent: Rita Cefai
Jurisdiction
Australia
Judgment Date
22 February 2023
Procedural Posture
Civil (tree Disputes Between Neighbours) / Final Judgment and Orders After Hearing
Outcome
Remedial orders granted for pruning, topdressing, and limited fence repair at the respondents' expense. No order for tree removal. Applications for broader orders or orders not relating to proven damage dismissed.
Legal Topics
Tree Disputes, Damage to Property, Dividing Fences, Corporal Hereditaments
Property Law Environmental Law Tree Disputes Damage to Property Dividing Fences Corporal Hereditaments

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Arun Bhuta

First Applicant

Anita Bhuta

Second Applicant

Martin Cefai

First Respondent

Rita Cefai

Second Respondent

Procedural Posture

Civil (tree Disputes Between Neighbours) / Final Judgment and Orders After Hearing

Legal Issues

  1. 1 Whether trees situated on the respondents' land have caused or are likely to cause damage to the applicants' property under the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the applicants are entitled to orders for tree removal, pruning, or other remedial work
  3. 3 Whether there is risk of injury to persons from the trees

Ratio Decidendi

The Court found that roots from the Weeping Fig caused uplift damage to one fence panel and restricted use of lawn but did not present a likely risk of injury, and that removal of the trees was not appropriate where limited, practical remedial measures would suffice. Orders for pruning, topdressing, and fence repair—at respondents' expense—were adequate to remedy the proven hinderances, and full removal or root restriction was not justified.

Court Disposition

Remedial orders granted for pruning, topdressing, and limited fence repair at the respondents' expense. No order for tree removal. Applications for broader orders or orders not relating to proven damage dismissed.

Orders

  • Respondents, within 60 days, to employ AQF level 3 arborists to prune Weeping Fig to raise canopy by approximately 2 metres and prune Japanese Photinia branches to provide at least 200mm clearance from fence.
  • Respondents, within 60 days, to employ a licenced landscape gardener to top dress area where Weeping Fig roots are present in respondents' lawn with an 80:20 sand:soil mix to cover the roots by 10mm and provide a relatively flat, useable surface.