Phillips v Kyong Holdings Pty Ltd [2016] NSWLEC 1293

Phillips v Kyong Holdings Pty Ltd [2016] NSWLEC 1293

The Court was satisfied on the evidence that the Spotted Gum had caused damage to the retaining wall and that, as the tree continued to grow, further deflection could occur and lead to structural failure of part of the block work onto the applicant's house. Having considered the tree's proximity to the boundary, its amenity value, the applicant's purchase of the property with awareness of some wall deflection, and the likely difficulty and expense of rectification, the Court held that the tree should be removed and that the applicant should reimburse 30% of the removal cost because he essentially came to the nuisance.

Jurisdiction
Australia
Judgment Date
18 July 2016
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Orders Seeking Removal of a Tree Growing on an Adjoining Property / Principal Judgment Following Hearing
Outcome
Application granted.
Legal Topics
['damage to Property' 'tree Removal' 'retaining Wall Damage' 'apportionment of Tree Removal Costs']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Property' 'tree Removal' 'retaining Wall Damage' 'apportionment of Tree Removal Costs']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 for Orders Seeking Removal of a Tree Growing on an Adjoining Property / Principal Judgment Following Hearing

Legal Issues

  1. 1 ["Whether the tree has caused, is causing, or is likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree should be removed.' 'Whether the applicant should contribute to the cost of removal.']

Ratio Decidendi

The Court was satisfied on the evidence that the Spotted Gum had caused damage to the retaining wall and that, as the tree continued to grow, further deflection could occur and lead to structural failure of part of the block work onto the applicant's house. Having considered the tree's proximity to the boundary, its amenity value, the applicant's purchase of the property with awareness of some wall deflection, and the likely difficulty and expense of rectification, the Court held that the tree should be removed and that the applicant should reimburse 30% of the removal cost because he essentially came to the nuisance.

Court Disposition

Application granted.

Orders

  • ['The application to remove the tree is granted.' 'Within 60 days of the date of these orders the respondent is to obtain up to three quotes from an arborist with a minimum AQF level 3 qualification in Arboriculture, and with appropriate insurance cover, to remove the tree to ground level and treat the stump to...