Moase v MacMahon [2010] NSWLEC 1123

Moase v MacMahon [2010] NSWLEC 1123

The Court found the applicants failed to provide sufficient evidence that most alleged damage or risk was caused by the tree, except for two concrete slabs directly above an exposed fig root. Jurisdiction was enlivened only for these slabs, resulting in a partial allowance for replacement at shared cost, with all other claims dismissed for lack of evidence or because the risk was not sufficient to warrant intervention.

Jurisdiction
Australia
Judgment Date
20 May 2010
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment
Outcome
Application allowed in part; majority of claims dismissed; partial compensation for limited property damage granted.
Legal Topics
['tree Disputes' 'damage to Property' 'compensation' 'assessment of Risk' 'jurisdictional Limits']
['environmental Law' 'property Law'] ['tree Disputes' 'damage to Property' 'compensation' 'assessment of Risk' 'jurisdictional Limits']

Case Brief

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment

Legal Issues

  1. 1 ["Whether the tree owned by the respondent caused or is likely to cause damage to the applicants' property or injury to persons under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006" 'Whether compensation or orders for removal/pruning or root barriers are warranted' 'If the court has jurisdiction to make orders related to nuisances like leaf/fruit drop and impact from animals using the tree']

Ratio Decidendi

The Court found the applicants failed to provide sufficient evidence that most alleged damage or risk was caused by the tree, except for two concrete slabs directly above an exposed fig root. Jurisdiction was enlivened only for these slabs, resulting in a partial allowance for replacement at shared cost, with all other claims dismissed for lack of evidence or because the risk was not sufficient to warrant intervention.

Court Disposition

Application allowed in part; majority of claims dismissed; partial compensation for limited property damage granted.

Orders

  • ['Application for pruning of the tree and associated compensation is dismissed.' 'Application for installation of a root barrier and associated compensation is dismissed.' 'Application for repair of the driveway is dismissed.' 'Application for replacement of the low brick wall is dismissed.' "Application for...