Wei v Borello & ors [2016] NSWLEC 1003

Wei v Borello & ors [2016] NSWLEC 1003

The application was dismissed because the Court was not satisfied that the respondents' trees caused, were causing, or were likely to cause the alleged property damage or injury. There was no sufficient evidence that overhanging branches, berries, spiders or birds justified orders, no proof that roots caused the uneven playground surface, lost earnings and staffing costs were outside the Court's compensation jurisdiction, and no proven nexus between the trees and the cracked boundary wall; the wall damage was more likely associated with footing movement and inadequate construction.

Jurisdiction
Australia
Judgment Date
05 January 2016
Procedural Posture
Class 2 Application Under Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing and Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['damage or Injury From Trees' 'overhanging Branches' 'compensation Under the Trees (disputes Between Neighbours) Act 2006' 'causation Between Tree Roots and Property Damage' 'unsafe Boundary Wall']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Jurisdiction'] ['damage or Injury From Trees' 'overhanging Branches' 'compensation Under the Trees (disputes Between Neighbours) Act 2006' 'causation Between Tree Roots and Property Damage' 'unsafe Boundary Wall']

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Procedural Posture

Class 2 Application Under Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing and Principal Judgment

Legal Issues

  1. 1 ["Whether the respondents' fig tree and murraya caused, were causing, or were likely in the near future to cause damage to the applicant's property or injury to any person." 'Whether overhanging branches justified orders for removal of or interference with the trees or compensation for past trimming.' 'Whether berries, spiders or birds associated with the trees could support orders under the Trees (Disputes Between Neighbours) Act 2006.' 'Whether uneven ground in the childcare centre playground was caused by tree roots and was damage covered by the Trees (Disputes Between Neighbours) Act 2006.' 'Whether claimed lost earnings and extra staffing costs were compensable under the Trees (Disputes Between Neighbours) Act 2006.' "Whether there was a sufficient nexus between the respondents' trees and cracking or unsafe condition of the applicant's boundary wall."]

Ratio Decidendi

The application was dismissed because the Court was not satisfied that the respondents' trees caused, were causing, or were likely to cause the alleged property damage or injury. There was no sufficient evidence that overhanging branches, berries, spiders or birds justified orders, no proof that roots caused the uneven playground surface, lost earnings and staffing costs were outside the Court's compensation jurisdiction, and no proven nexus between the trees and the cracked boundary wall; the wall damage was more likely associated with footing movement and inadequate construction.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']