Mostafiz v Toll [2020] NSWLEC 1672

Mostafiz v Toll [2020] NSWLEC 1672

On the balance of probabilities, the respondents’ tree caused the damage to the applicants’ sewer pipe. Cutting the offending root is a sufficient remedy. The tree need not be removed, and the applicants bear the repair costs because the damage was not reasonably foreseeable by the respondents.

Parties
First Applicant: Mohammad Mostafiz; Second Applicant: Shormin Mostafiz; First Respondent: Graham Toll; Second Respondent: Gail Toll
Jurisdiction
Australia
Judgment Date
23 December 2020
Procedural Posture
Tree Dispute (damage to Property) / Judgment
Outcome
Order made for root cutting; no order for removal or compensation.
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Tree Root Damage, Property Damage, Sewer Pipes, Orders for Root Pruning
Environment and Planning Law Trees (disputes Between Neighbours) Act 2006 Tree Root Damage Property Damage Sewer Pipes Orders for Root Pruning

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Parties

Mohammad Mostafiz

First Applicant

Shormin Mostafiz

Second Applicant

Graham Toll

First Respondent

Gail Toll

Second Respondent

Procedural Posture

Tree Dispute (damage to Property) / Judgment

Legal Issues

  1. 1 Whether the respondents' tree caused damage to the applicants' sewer pipe
  2. 2 Whether the tree should be removed or orders for root pruning should be made
  3. 3 Whether the respondents should pay for pipe repairs

Ratio Decidendi

On the balance of probabilities, the respondents’ tree caused the damage to the applicants’ sewer pipe. Cutting the offending root is a sufficient remedy. The tree need not be removed, and the applicants bear the repair costs because the damage was not reasonably foreseeable by the respondents.

Court Disposition

Order made for root cutting; no order for removal or compensation.

Orders

  • The applicants (or a suitably qualified horticulturist or arborist engaged by the applicants) are to cut the woody root that has damaged their sewer pipe, at any preferred point between the pipe and the common boundary they share with the respondents. The root must be cut cleanly with a saw.