Choi v Elliston & anor [2013] NSWLEC 1185

Choi v Elliston & anor [2013] NSWLEC 1185

Photographic evidence, the engineers' reports and the site inspection showed that pressure exerted by the palms displaced and cracked a masonry wall at the front of the applicant's property, satisfying s 10(2) and engaging the Court's power under s 9. The evidence did not establish that the distant vertical crack identified by the applicant's engineer was attributable to the palms, so no order was made for its rectification at the respondents' expense. Consent orders were made for demolition and reinstatement of the agreed damaged sections and related stump removal, with reimbursement by the respondents.

Jurisdiction
Australia
Judgment Date
01 October 2013
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Consent Orders
Outcome
Application upheld; wall to be repaired at respondents' expense.
Legal Topics
['damage to a Wall' 'risk of Injury' 'consent Orders' 'palm Tree Stumps' 'costs Jurisdiction']
['land and Environment' 'trees Disputes' 'neighbour Disputes'] ['damage to a Wall' 'risk of Injury' 'consent Orders' 'palm Tree Stumps' 'costs Jurisdiction']

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 Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Consent Orders

Legal Issues

  1. 1 ["Whether the palms caused damage to the applicant's property sufficient to engage the Court's power to make orders under the Trees (Disputes Between Neighbours) Act 2006." "The extent of the wall to be removed and replaced at the respondents' expense." 'Whether a distant vertical crack in the wall was attributable to the palms.' 'Whether the Commissioner could award costs.']

Ratio Decidendi

Photographic evidence, the engineers' reports and the site inspection showed that pressure exerted by the palms displaced and cracked a masonry wall at the front of the applicant's property, satisfying s 10(2) and engaging the Court's power under s 9. The evidence did not establish that the distant vertical crack identified by the applicant's engineer was attributable to the palms, so no order was made for its rectification at the respondents' expense. Consent orders were made for demolition and reinstatement of the agreed damaged sections and related stump removal, with reimbursement by the respondents.

Court Disposition

Application upheld; wall to be repaired at respondents' expense.

Orders

  • ['Within 30 days of the date of the orders the parties are each to obtain 2 itemised quotes from licensed contractors for demolition and reinstatement of the damaged section of wall, being the northern wall from the eastern corner to 800mm west, the eastern wall from the northern corner to a distance 3.6 metres...