Hui v Gu [2021] NSWLEC 1335

Land and Environment Court New South Wales

Medium Neutral Citation: Hui v Gu [2021] NSWLEC 1335 Hearing dates: 31 May 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [27] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to boundary fence – trees have caused damage – orders to remove two trees – orders to replace fence – reimbursement for half of survey cost – remainder of application dismissed Legislation Cited: Dividing Fences Act 1991, s 13A Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 9, 10, 12 Texts Cited: Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work' Category: Principal judgment Parties: Fong C Hui (First Applicant) Yuk K Lo (Second Applicant) Charles Gu (First Respondent) Ronnie Ji (Second Respondent) Representation: F C Hui (Litigant in Person) (First Applicant) D Hui (Agent) (Second Applicant) C Gu (Litigant in Person) (First Respondent) R Ji (Litigant in Person) (Second Respondent) File Number(s): 2021/43012 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application 1. This dispute between neighbours in Epping has, at its core, a fence along a common boundary, and vegetation alongside the fence, but has become clouded by other issues over the years. To resolve this dispute as much as might be possible, the Court can make orders to deal with the fence and vegetation, but cannot make orders to address some of the surrounding issues. 2. Fong Hui and Yuk Lo have applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for replacement of the fence along the common boundary they share with their neighbours, Charles Gu and Ronnie Ji ('the respondents'), with the cost of the fence shared by the parties. They also want orders for the respondents to remove all overhanging branches and trees that might obstruct fence installation, along with all trees on the respondents' property within 3.5 metres of the applicants' dwelling. They also want reimbursement of costs for an earlier application made to the NSW Civil and Administrative Tribunal ('NCAT'), the cost of making this application to the Land and Environment Court, for medical costs, and for the cost of a boundary survey. 3. The respondents agree that the boundary fence needs replacing but refute the other elements of this application. They recently replaced the fence along the boundary on the other side of their property, a process they say was straightforward. They have an agreement with another neighbour to replace the fence further along the boundary that is the subject of this application, where it is shared with that neighbour. The respondents have been unable to resolve the other issues surrounding the replacement of this remaining section of their boundary fence. 4. A new fence is the agreed outcome, but a path to get there has not been found. Both parties have obtained quotes to demolish the existing paling fence along their common boundary and replace it with a Colourbond fence. With surrounding issues unresolved, the applicants applied to NCAT seeking to resolve the matter. NCAT's orders of 5 January 2021 simply stated: "1. The application is withdrawn in accordance with the NCAT ACT." Below the order was a Note: "The respondent maintained the trees between [the two properties] are not on or near the dividing fence boundary. Surveyors report is required."