Kacarovski v Stewart [2024] NSWLEC 1725

Land and Environment Court New South Wales

Medium Neutral Citation: Kacarovski v Stewart [2024] NSWLEC 1725 Hearing dates: 23 July 2024 Date of orders: 12 November 2024 Decision date: 12 November 2024 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court orders that: (1) Within 30 days of the date of these orders, the respondents shall pay the applicant $1815.00 (50% of $3630.00) by Electronic Fund Transfer (EFT) as compensation for the cost of tile, ceiling and wall repairs. (2) The respondents, initially at their expense, shall contract Draper Fencing or another licenced fencing contractor with all appropriate insurance, to construct a 1.8 m tall, treated pine fence approximately 41 m long, along the surveyed boundary between the southern end of the common front fence and the common rear boundary corner, in accordance with the specifications of the Draper Fencing Quote Number QU-1301 of 25 January 2024, for $8,663.60. The works shall be completed within 90 days of the date of these orders. (3) The $8,663.60 Draper Fencing quote shall form the basis for apportionment of cost between the parties, but a 5% allowance shall be made for inflation as the quote expired in February 2024 and will likely need to be updated. Therefore, the maximum base price for apportionment of cost shall be $8,663.60 plus $443.18 = $9,096.78 and the applicant's maximum liability shall be 25% of the maximum base price = $2,274.00, even if the respondents choose a more expensive contractor. (4) Within 7 days of the completion of the fencing works, the respondents shall email the applicant a copy of an itemised paid invoice for the fencing works. Within 7 days of receipt of the paid invoice, the applicant shall pay the respondents by EFT; 25% of the total if the invoice total is less than $9,096.00, or, $2,274.00 if the invoice total is more than $9,096.00. (5) In April 2025 and during April of each subsequent year, the respondents, at their expense, shall prune the height of the Murraya hedge in front of W2 to a maximum of 1.6 m above ground level. (6) The applicant shall grant access to the respondents' chosen licenced fencer or arborists to complete works or tidy the site, upon 72 hours' notice by email. (7) The tree works are to be undertaken in accordance with the guidelines of the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016, and all works shall be completed during reasonable daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves falling onto roofs and into gutters – alleged severe obstruction of sunlight and views Legislation Cited: Dividing Fences Act 1991 ss 4, 7, 11, 13 Limitation Act 1969 ss 14(1)(d) Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F Cases Cited: Ball v Bahramali & Anor [2010] NSWLEC 1334 Barker v Kyriakides [2007] NSWLEC 292 Fang v Lee & anor [2017] NSWLEC 1503 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus [2012] NSWLEC 192 Lazarus v Lee [2010] NSWLEC 1118 Moroney v John [2008] NSWLEC 32 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Steber v Job [2019] NSWLEC 1308 Stevens v Russell [2016] NSWLEC 1233 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Zhang v Long [2007] NSWLEC 632 Texts Cited: Burwood Development Control Plan 2021 Category: Principal judgment Parties: Tom Kacarovski (Applicant) June Williams (Second Applicant) Douglas Stewart (First Respondent) Andrea Stewart (Second Respondent) Representation: Counsel: T Kacarovski (Self-represented) (Applicant) S Hanscomb (Respondents)