Tan & anor v Ramakrishna & anor [2017] NSWLEC 1423

Tan & anor v Ramakrishna & anor [2017] NSWLEC 1423

The tree failed during a severe storm and there was no evidence the respondents had any knowledge (actual or constructive) of risk or that the tree showed signs of instability visible to an owner. No act or omission of either party contributed to the tree's failure. Therefore, consistent with the principle in Robson v Leischke, the loss remains with the applicants and compensation is refused. The Ironbark is causing, and will likely continue to cause, minor damage to the fence with little amenity value, so its removal is ordered at the respondents’ expense.

Jurisdiction
Australia
Judgment Date
08 August 2017
Procedural Posture
Tree Disputes (damage to Property and Compensation) / Judgment Following Contested Hearing
Outcome
Application for compensation dismissed; orders for removal of Ironbark and fence replacement granted
Legal Topics
['trees Act Neighbour Disputes' 'damage to Property From Trees' 'compensation' 'removal of Trees' 'replacement of Fence']
['property Law' 'tort Law'] ['trees Act Neighbour Disputes' 'damage to Property From Trees' 'compensation' 'removal of Trees' 'replacement of Fence']

Case Brief

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Procedural Posture

Tree Disputes (damage to Property and Compensation) / Judgment Following Contested Hearing

Legal Issues

  1. 1 ['Whether respondents are liable to compensate applicants for damage caused by fallen tree under Trees (Disputes Between Neighbours) Act 2006' 'Whether respondents must remove Ironbark tree and replace damaged fence section']

Ratio Decidendi

The tree failed during a severe storm and there was no evidence the respondents had any knowledge (actual or constructive) of risk or that the tree showed signs of instability visible to an owner. No act or omission of either party contributed to the tree's failure. Therefore, consistent with the principle in Robson v Leischke, the loss remains with the applicants and compensation is refused. The Ironbark is causing, and will likely continue to cause, minor damage to the fence with little amenity value, so its removal is ordered at the respondents’ expense.

Court Disposition

Application for compensation dismissed; orders for removal of Ironbark and fence replacement granted

Orders

  • ['The application for compensation is dismissed.' 'Within 30 days, the respondents or their agent to engage and pay for an arborist (minimum AQF Level 3) with insurance to remove the Ironbark to ground level; roots to be ground to at least 200mm; area to be made good.' 'Tree removal to be conducted in accordance...