Ruoso v Hoang & anor [2014] NSWLEC 1062

Ruoso v Hoang & anor [2014] NSWLEC 1062

The exposed large roots beneath the applicant's paving were from the two trees on the respondents' property and were the primary cause of the damage. The applicant had made reasonable efforts to notify and reach agreement with the respondents, and the jurisdictional tests in s 10 were satisfied. The damage warranted removal and replacement of the affected paving and concrete base, removal of roots below the paving, and removal of both trees because cutting large roots close to the trees would increase the risk of failure. The applicant could be reimbursed for the concrete removal expense as part of remedying the damage, but the Commissioner could not order costs of expert reports or...

Jurisdiction
Australia
Judgment Date
09 April 2014
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment With Proposed Orders, Subject to Respondents Being Given an Opportunity to Make Submissions
Outcome
Application upheld in part by proposed orders, with the respondents to be given 21 days to indicate whether they wished to make submissions before the proposed orders were made.
Legal Topics
['tree Root Damage' 'compensation for Paving Repairs' 'tree Removal' 'substituted Service' 'costs of Expert Reports']
['environmental Law' 'trees Disputes Between Neighbours' 'property Damage'] ['tree Root Damage' 'compensation for Paving Repairs' 'tree Removal' 'substituted Service' 'costs of Expert Reports']

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment With Proposed Orders, Subject to Respondents Being Given an Opportunity to Make Submissions

Legal Issues

  1. 1 ["Whether roots from two trees on the respondents' property caused damage to paving on the applicant's property." 'Whether the jurisdictional tests in s 10 of the Trees (Disputes Between Neighbours) Act 2006 were satisfied so that orders could be made under s 9.' 'Whether removal of the two trees and replacement of damaged paving were warranted.' 'Whether the applicant could recover costs for expert reports, making the application, and concrete cutting.']

Ratio Decidendi

The exposed large roots beneath the applicant's paving were from the two trees on the respondents' property and were the primary cause of the damage. The applicant had made reasonable efforts to notify and reach agreement with the respondents, and the jurisdictional tests in s 10 were satisfied. The damage warranted removal and replacement of the affected paving and concrete base, removal of roots below the paving, and removal of both trees because cutting large roots close to the trees would increase the risk of failure. The applicant could be reimbursed for the concrete removal expense as part of remedying the damage, but the Commissioner could not order costs of expert reports or...

Court Disposition

Application upheld in part by proposed orders, with the respondents to be given 21 days to indicate whether they wished to make submissions before the proposed orders were made.

Orders

  • ['Within 30 days of the date of the orders the respondents are to engage a suitably qualified and insured arborist to remove the two trees near the common boundary to ground level and apply herbicide containing glyphosate to the stumps or, alternatively, grind out the stumps.' 'Within 14 days of the date of the...