Liu v Jiang [2021] NSWLEC 1571

Liu v Jiang [2021] NSWLEC 1571

Tree T3 caused some damage to the retaining wall and was likely to cause further damage, justifying its removal. However, the retaining wall's principal defects resulted from inadequate design and construction, added loads from the applicant's raised land and possible pool, and lack of drainage, with T3 contributing...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Orders After Hearing
Outcome
Application granted to the extent of the orders made.
Legal Topics
['neighbouring Tree Damage to Property' 'retaining Wall on Boundary' 'removal of Tree' 'repair or Replacement of Dividing Fence' 'apportionment of Costs']
['trees Disputes Between Neighbours' 'land and Environment' 'dividing Fences'] ['neighbouring Tree Damage to Property' 'retaining Wall on Boundary' 'removal of Tree' 'repair or Replacement of Dividing Fence' 'apportionment of Costs']

Source-derived case record

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Procedural Posture

Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Orders After Hearing

Legal Issues

  1. 1 ["Whether tree T3 damaged the applicant's property." 'Whether tree T3 needed to be removed.' 'Who owns the retaining wall.' 'Whether the retaining wall is a dividing fence.' 'Whether the retaining wall required repair or replacement.' 'What orders for repair or replacement were appropriate.' 'Who should pay for any works ordered.']

Ratio Decidendi

Tree T3 caused some damage to the retaining wall and was likely to cause further damage, justifying its removal. However, the retaining wall's principal defects resulted from inadequate design and construction, added loads from the applicant's raised land and possible pool, and lack of drainage, with T3 contributing at most 10% to the wall's condition. Because the pool fence relied on the retaining wall for support, the retaining wall was a fence for the purposes of the Dividing Fences Act 1991, permitting orders for replacement of the whole wall and apportionment of costs 90% to the applicant and 10% to the respondents.

Court Disposition

Application granted to the extent of the orders made.

Orders

  • ['The application is granted to the extent of the orders below.' 'Within 4 weeks of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist with all appropriate insurances to remove to ground level the cypress tree T3 located near the retaining wall on the southern boundary...