Ding & anor v Phillips [2008] NSWLEC 1268

Ding & anor v Phillips [2008] NSWLEC 1268

The application was dismissed because, at each point where roots were shown in the sewer pipe and in relation to the path damage, there were alternative possible vegetation causes and no evidence sufficient to satisfy the Court on the balance of probabilities that the Coral tree caused the damage. In relation to the path, the Court also was not prepared to hold the respondent liable for past damage where the matter was not drawn to her attention until the end of 2007 and there was no evidence of subsequent significant damage.

Jurisdiction
Australia
Judgment Date
03 July 2008
Procedural Posture
Application for Compensation and Rectification for Alleged Tree Damage Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['tree Root Damage' 'sewer Pipe Damage' 'path Damage' 'causation' 'notice to Tree Owner' 'alternative Vegetation']
['trees (disputes Between Neighbours)' 'property' 'compensation'] ['tree Root Damage' 'sewer Pipe Damage' 'path Damage' 'causation' 'notice to Tree Owner' 'alternative Vegetation']

Case Brief

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Procedural Posture

Application for Compensation and Rectification for Alleged Tree Damage Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether roots from the Coral tree on the adjacent property intruded into and damaged the applicants' sewer pipe." "Whether the Coral tree caused lifting or damage to the applicants' path." 'Whether alternative vegetation causes prevented satisfaction on the balance of probabilities that the Coral tree caused the alleged damage.' 'Whether the respondent should be held liable for past path damage where notice was not given until the end of 2007.']

Ratio Decidendi

The application was dismissed because, at each point where roots were shown in the sewer pipe and in relation to the path damage, there were alternative possible vegetation causes and no evidence sufficient to satisfy the Court on the balance of probabilities that the Coral tree caused the damage. In relation to the path, the Court also was not prepared to hold the respondent liable for past damage where the matter was not drawn to her attention until the end of 2007 and there was no evidence of subsequent significant damage.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']