Cincotta v Huang and ors [2011] NSWLEC 1086

Cincotta v Huang and ors [2011] NSWLEC 1086

The Court was satisfied that the first respondent had been validly served but that the original proposed second respondent, his wife, had not been personally served and was not a respondent. The Court accepted the applicant's evidence that a branch from the Eucalyptus nicholii fell onto his garage during high wind and caused damage, satisfying s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006. However, inspection showed the tree was a typical specimen and did not justify removal; only three dead branches directed toward the applicant's property should be removed. The fence repair claim was dismissed for lack of receipts or justification, but the roof repair reimbursement was...

Jurisdiction
Australia
Judgment Date
08 April 2011
Procedural Posture
Class 2 Tree Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Tree removal and fence compensation dismissed; pruning of three branches ordered; first respondent ordered to reimburse branch removal costs and roof repair costs subject to conditions.
Legal Topics
['removal or Pruning of Tree Branches' 'compensation for Damage Caused by Tree' 'service of Originating Process' 'cross Claim Between Respondents' 'expert Evidence Compliance']
['trees Disputes Between Neighbours' 'property Damage' 'civil Procedure'] ['removal or Pruning of Tree Branches' 'compensation for Damage Caused by Tree' 'service of Originating Process' 'cross Claim Between Respondents' 'expert Evidence Compliance']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the first respondent had been validly served and whether the person originally named as the second respondent had been validly served.' 'Whether leave should be granted for the second and third respondents to make a cross-claim against the first respondent.' "Whether a branch from the Eucalyptus nicholii had fallen and caused damage to the applicant's property so as to satisfy s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the tree should be removed or whether limited pruning should be ordered.' 'Whether compensation should be ordered for fence repairs and roof repairs, and who should bear the costs of the ordered works.']

Ratio Decidendi

The Court was satisfied that the first respondent had been validly served but that the original proposed second respondent, his wife, had not been personally served and was not a respondent. The Court accepted the applicant's evidence that a branch from the Eucalyptus nicholii fell onto his garage during high wind and caused damage, satisfying s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006. However, inspection showed the tree was a typical specimen and did not justify removal; only three dead branches directed toward the applicant's property should be removed. The fence repair claim was dismissed for lack of receipts or justification, but the roof repair reimbursement was...

Court Disposition

Tree removal and fence compensation dismissed; pruning of three branches ordered; first respondent ordered to reimburse branch removal costs and roof repair costs subject to conditions.

Orders

  • ['The application to remove the tree is dismissed.' 'The application for compensation of an amount of $162 for repairs to a fence is dismissed.' 'The second and third respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance to remove the three branches indicated by red bars on the...