Worthing v Medojevic [2011] NSWLEC 1052

Worthing v Medojevic [2011] NSWLEC 1052

The Act was enlivened only because the lifting of several pavers near the avocado tree was likely caused by that tree and constituted damage to the applicants' property. Since the overhanging limbs had been removed, injury was unlikely; shade and vermin were not damage to property; there was no evidence of likely near-future garage damage; and the olive tree's lean did not equate to damage. Compensation was therefore limited to the portion of driveway damage likely attributable to the respondent's tree, approximately one sixth of the quoted repair section.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Class 2 Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application to prune dismissed; application for compensation upheld in part.
Legal Topics
['damage to Property by Tree Roots' 'pruning of Overhanging Branches' 'compensation for Damaged Paving' 'risk of Injury From Tree Limbs or Fruit']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Property by Tree Roots' 'pruning of Overhanging Branches' 'compensation for Damaged Paving' 'risk of Injury From Tree Limbs or Fruit']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ["Whether the respondent's avocado tree had caused, was causing, or was likely in the near future to cause damage to the applicants' property, or was likely to cause injury to any person." 'Whether orders should be made for pruning, removal of roots, or compensation for repair to damaged paving and potential garage damage.']

Ratio Decidendi

The Act was enlivened only because the lifting of several pavers near the avocado tree was likely caused by that tree and constituted damage to the applicants' property. Since the overhanging limbs had been removed, injury was unlikely; shade and vermin were not damage to property; there was no evidence of likely near-future garage damage; and the olive tree's lean did not equate to damage. Compensation was therefore limited to the portion of driveway damage likely attributable to the respondent's tree, approximately one sixth of the quoted repair section.

Court Disposition

Application to prune dismissed; application for compensation upheld in part.

Orders

  • ['The application to prune the tree is dismissed.' 'The application for compensation is upheld in part.' 'The applicants are to organise and pay for repair to their driveway (removal of uneven pavers, cutting of roots, replacing pavers on a level surface).' 'The respondent is to pay to the applicants a sum of $110...