Hinde v Anderson and anor (No 2) [2009] NSWLEC 1258

Hinde v Anderson and anor (No 2) [2009] NSWLEC 1258

The Court was not satisfied, to the required civil standard, that the applicant had demonstrated that the Chinese Elm caused the ridge cap damage after the earlier decision. The presence of a Eucalypt branch in the applicant's courtyard, capable of causing the damage and consistent with wind carriage from a nearby Eucalypt, meant causation by the Chinese Elm was not established. There was also no evidence that the tree was currently causing damage or was a risk of injury, and the applicant elected not to present further evidence on likely near future damage.

Jurisdiction
Australia
Judgment Date
21 July 2009
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning a Chinese Elm Tree / Ex Tempore Judgment on a Second Application; Preliminary Jurisdictional Issue Considered and Application Dismissed After the Applicant Elected Not to Present Further Evidence
Outcome
Application dismissed.
Legal Topics
['jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'damage to Property by Trees' 'res Judicata' 'burden of Proof on the Civil Standard' 'near Future Damage']
['trees Disputes' 'property Law' 'civil Procedure' 'evidence'] ['jurisdiction Under the Trees (disputes Between Neighbours) Act 2006' 'damage to Property by Trees' 'res Judicata' 'burden of Proof on the Civil Standard' 'near Future Damage']

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning a Chinese Elm Tree / Ex Tempore Judgment on a Second Application; Preliminary Jurisdictional Issue Considered and Application Dismissed After the Applicant Elected Not to Present Further Evidence

Legal Issues

  1. 1 ['Whether a second application concerning a tree previously the subject of proceedings was competent and required changed circumstances since the earlier decision.' 'Whether the applicant proved, to the required civil standard, that the Chinese Elm had caused additional damage to her property since the earlier decision.' 'Whether any jurisdictional requirement in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 was satisfied.']

Ratio Decidendi

The Court was not satisfied, to the required civil standard, that the applicant had demonstrated that the Chinese Elm caused the ridge cap damage after the earlier decision. The presence of a Eucalypt branch in the applicant's courtyard, capable of causing the damage and consistent with wind carriage from a nearby Eucalypt, meant causation by the Chinese Elm was not established. There was also no evidence that the tree was currently causing damage or was a risk of injury, and the applicant elected not to present further evidence on likely near future damage.

Court Disposition

Application dismissed.

Orders

  • ['The application was dismissed.']