St Clair v Kilham [2018] NSWLEC 1071

St Clair v Kilham [2018] NSWLEC 1071

On the balance of probabilities, the root crowns of respondents' trees T1, T2, and T3 put pressure on the boundary wall and contributed to its damage; other factors such as wall age and poor drainage also contributed. Orders are made for replacement of both sections of the wall, with repair costs apportioned: 60% respondents/40% applicant for the front section, 50% each for the rear section. No causation found for damage to path or gate; those elements are dismissed.

Parties
Applicant: Paul St Clair; First Respondent: Henry Kilham; Second Respondent: Gaye Kilham
Jurisdiction
Australia
Judgment Date
13 February 2018
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment
Outcome
Application upheld as to boundary wall; dismissed as to path and gate.
Legal Topics
Damage to Property, Root Damage, Boundary Wall, Apportionment of Repair Costs, Dividing Fences Act
Property Law Environmental Law Neighbour Disputes Damage to Property Root Damage Boundary Wall Apportionment of Repair Costs Dividing Fences Act

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Paul St Clair

Applicant

Henry Kilham

First Respondent

Gaye Kilham

Second Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment

Legal Issues

  1. 1 Did trees planted by the respondents cause damage to the boundary wall, path, and gate on the applicant's property?
  2. 2 What apportionment of repair costs is appropriate given the contributing factors?
  3. 3 Should orders be made for replacement or repair of the boundary wall under the Trees Act and Dividing Fences Act?

Ratio Decidendi

On the balance of probabilities, the root crowns of respondents' trees T1, T2, and T3 put pressure on the boundary wall and contributed to its damage; other factors such as wall age and poor drainage also contributed. Orders are made for replacement of both sections of the wall, with repair costs apportioned: 60% respondents/40% applicant for the front section, 50% each for the rear section. No causation found for damage to path or gate; those elements are dismissed.

Court Disposition

Application upheld as to boundary wall; dismissed as to path and gate.

Orders

  • Gaye Lesley Kilham joined as Second Respondent.
  • Parties to obtain at least two quotes each from structural engineers for wall replacement within 30 days.