Keiselis v Park & anor [2017] NSWLEC 1648

Keiselis v Park & anor [2017] NSWLEC 1648

The Court was satisfied under s 10(2)(a) that the respondents' Pine tree caused damage to the applicant's pool. The photographic evidence indicated the tree was dead and disintegrating when it failed, and it was self evident that a tall dead tree close to an adjoining property posed some risk; accordingly the damage was foreseeable. Because the respondents were notified, inspected the damage, and maintained that they should not pay, the applicant had no alternative but to pay for the repairs and seek reimbursement under the Trees Act.

Jurisdiction
Australia
Judgment Date
14 November 2017
Procedural Posture
Class 1 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders
Outcome
Application allowed to the extent of ordering reimbursement for rectification of damage to the applicant's property.
Legal Topics
["damage Caused by Neighbour's Tree" 'compensation for Rectification Works' 'foreseeability of Tree Failure' "commissioner's Jurisdiction as to Costs"]
['trees Disputes Between Neighbours' 'property Damage'] ["damage Caused by Neighbour's Tree" 'compensation for Rectification Works' 'foreseeability of Tree Failure' "commissioner's Jurisdiction as to Costs"]

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Procedural Posture

Class 1 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders

Legal Issues

  1. 1 ["Whether the respondents' tree caused damage to the applicant's property so as to engage the Court's jurisdiction under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the failure of the respondents' tree was foreseeable or an unforeseeable natural disaster." 'Whether the respondents should reimburse the applicant for the cost of repairing and reinstating the pool.' 'Whether a Commissioner could order reimbursement of legal costs.']

Ratio Decidendi

The Court was satisfied under s 10(2)(a) that the respondents' Pine tree caused damage to the applicant's pool. The photographic evidence indicated the tree was dead and disintegrating when it failed, and it was self evident that a tall dead tree close to an adjoining property posed some risk; accordingly the damage was foreseeable. Because the respondents were notified, inspected the damage, and maintained that they should not pay, the applicant had no alternative but to pay for the repairs and seek reimbursement under the Trees Act.

Court Disposition

Application allowed to the extent of ordering reimbursement for rectification of damage to the applicant's property.

Orders

  • ["Within 21 days of the date of these orders the respondents are to reimburse the applicant the sum of $4310.00 for the rectification of damage caused to the applicant's property as a consequence of the failure of the respondents' tree."]