Lindsay v Williams as the Executor to the Estate of Janne Patricia Flarrety [2024] NSWLEC 1165

Land and Environment Court New South Wales

Medium Neutral Citation: Lindsay v Williams as the Executor to the Estate of Janne Patricia Flarrety [2024] NSWLEC 1165 Hearing dates: 13 February 2024 Date of orders: 09 April 2024 Decision date: 09 April 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. (2) The exhibits are returned, other than Exhibit A. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the tree has caused damage – actions taken by the parties – whether compensation should be paid – application refused Legislation Cited: Limitation Act 1969, s 14 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 9, 10, 12 Cases Cited: Moroney v John [2008] NSWLEC 32 Category: Principal judgment Parties: Carmen Lindsay (Applicant) Suzanne Williams as the Executor to the Estate of Janne Patricia Flarrety (Respondent) Representation: Counsel: C Koikas (Applicant) S Williams (Executor) (Respondent) File Number(s): 2023/179060 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Carmen Lindsay (the applicant) lives at her Merrylands West property. Suzanne Williams (the respondent, as executor to the estate of Janne Patricia Flarrety) has lived at the neighbouring property for 22 years. Until January 2017, a liquidambar (Liquidambar styraciflua) (the tree) grew in her front garden. Areas of Ms Lindsay's property, including concrete paving and a garden wall, are cracked and displaced. Ms Lindsay says this damage was caused by the tree and must be repaired to prevent injury that might be caused by tripping over uneven concrete, or should the wall fall over. She has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the respondent to pay her $20,380 for repairing property and $1,320 for the cost of a building report. I note that Commissioners of the Court do not have the power to make orders for costs, such as the cost of the report. 2. The hearing took place onsite, allowing the Court to observe the damage to Ms Lindsay's property and relevant issues.