Xuereb v Ott [2016] NSWLEC 1409

Xuereb v Ott [2016] NSWLEC 1409

While storm-damaged limbs did likely cause property damage thus meeting jurisdictional tests, there is insufficient evidence to justify removal of the trees. Pruning deadwood is appropriate and partial compensation for the insurance excess should be paid.

Jurisdiction
Australia
Judgment Date
26 August 2016
Procedural Posture
Tree Dispute Application / Principal Judgment
Outcome
Application to remove trees dismissed; application for compensation upheld; orders for pruning and partial compensation made.
Legal Topics
['trees (disputes Between Neighbours)' 'tree Removal' 'pruning' 'insurance Excess Compensation' 'property Damage']
['environmental Law' 'property Law'] ['trees (disputes Between Neighbours)' 'tree Removal' 'pruning' 'insurance Excess Compensation' 'property Damage']

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Procedural Posture

Tree Dispute Application / Principal Judgment

Legal Issues

  1. 1 ['Whether the trees caused or are likely to cause damage to property or injury to persons' 'Whether the trees should be removed or pruned' 'Whether compensation for insurance excess is payable']

Ratio Decidendi

While storm-damaged limbs did likely cause property damage thus meeting jurisdictional tests, there is insufficient evidence to justify removal of the trees. Pruning deadwood is appropriate and partial compensation for the insurance excess should be paid.

Court Disposition

Application to remove trees dismissed; application for compensation upheld; orders for pruning and partial compensation made.

Orders

  • ['The application to remove the two Eucalyptus moluccana trees is dismissed.' 'The application for compensation for the insurance claim excess is upheld.' 'Within 21 days, applicant to provide respondent a Tax Invoice for $300 insurance excess; within 28 days, respondent shall pay applicant $150 if invoice is...