Golden v Li (No.2) [2022] NSWLEC 1450

Golden v Li (No.2) [2022] NSWLEC 1450

The Pittosporum tree was a cause of minor cracking, uplift, joint separation, wall rotation and fence fitting damage, so s 10(2) of the Trees Act was engaged. However, because the retaining wall was old, poorly constructed, lacked proper footing or reinforcement, and had deteriorated from age and subsidence, it was not reasonable to require the respondents to fund a new wall to modern standards. Compensation was therefore limited to like for like repair of the damaged section, and on the amended orders the respondents' liability was mitigated to $7,953, being 50% of the applicant's Paradise Landscapes quotation, subject to completion and invoice conditions.

Jurisdiction
Australia
Judgment Date
26 August 2022
Procedural Posture
Class 2 Tree Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Judgment and Amended Orders Following Notices of Motion
Outcome
Application allowed in part; amended orders made requiring like for like repair works and conditional reimbursement by the respondents up to $7,953.
Legal Topics
['damage to Retaining Wall and Tennis Court Fence' 'reasonable Wear and Tear' 'apportionment of Repair Costs' 'like for Like Repair' 'expert Evidence Duties' 'amendment of Orders']
['trees Disputes Between Neighbours' 'land and Environment Court Jurisdiction' 'property Damage'] ['damage to Retaining Wall and Tennis Court Fence' 'reasonable Wear and Tear' 'apportionment of Repair Costs' 'like for Like Repair' 'expert Evidence Duties' 'amendment of Orders']

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Procedural Posture

Class 2 Tree Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Judgment and Amended Orders Following Notices of Motion

Legal Issues

  1. 1 ["Whether the Pittosporum undulatum tree on the respondents' land caused damage to the applicant's retaining wall and tennis court within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the applicant was entitled to compensation for replacement or repair of the retaining wall and tennis court works at the respondents' expense." "Whether the age, construction quality and deterioration of the retaining wall should reduce or limit the respondents' liability." 'Whether amended orders should be made following incomplete execution of earlier consent orders.']

Ratio Decidendi

The Pittosporum tree was a cause of minor cracking, uplift, joint separation, wall rotation and fence fitting damage, so s 10(2) of the Trees Act was engaged. However, because the retaining wall was old, poorly constructed, lacked proper footing or reinforcement, and had deteriorated from age and subsidence, it was not reasonable to require the respondents to fund a new wall to modern standards. Compensation was therefore limited to like for like repair of the damaged section, and on the amended orders the respondents' liability was mitigated to $7,953, being 50% of the applicant's Paradise Landscapes quotation, subject to completion and invoice conditions.

Court Disposition

Application allowed in part; amended orders made requiring like for like repair works and conditional reimbursement by the respondents up to $7,953.

Orders

  • ['The applicant shall employ Paradise Landscapes or a similar licenced builder or licenced landscaper with all appropriate insurances to remove the Pittosporum tree stump and clear all roots with a diameter greater than 10mm, consolidate and re-compact the existing loose stone foundation base up to 2 metres on...