NSW Caselaw
Land and Environment Court of New South Wales
CITATION : Awad v Hardie [2010] NSWLEC 1213 This decision has been amended. Please see the end of the judgment for a list of the amendments.
APPLICANT F Awad PARTIES : RESPONDENT Ms L Hardie
FILE NUMBER(S) : 20160 of 2010
CORAM: Moore SC
KEY ISSUES: EVIDENCE - TREES (NEIGHBOURS) :- inadequate survey; failure to comply with direction for survey of location of a trree on boundary; failure of expert to comply with directions for expert evidence; necessity to know proportions of tree on each property at point where trunk enters the ground for the purposes of determining upon which property the tree is "principally" situated as required by s 4(3) of the Trees (Disputes Between Neighbours) Act 2006
LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006, s 4(3) Uniform Civil Procedure Rules 2005, Part 31 r 27; Sch 7
DATES OF HEARING: 11 June and 23 July
EX TEMPORE JUDGMENT DATE : 23 July 2010
APPLICANT Mr S Mir, agent LEGAL REPRESENTATIVES: RESPONDENT Ms D-M Hardie, agent
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
MOORE SC
23 July 2010
10/20160 Awad v Hardie
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: In this matter, directions were given on 23 April 2010 for Ms Awad to have a survey undertaken of the location of the tree, a Camphor Laurel, that is on the boundary between Ms Awad's property and Ms Hardie's property. The survey was to be undertaken in order to determine which of the properties was the property upon which the tree was principally situated as required by s 4(3) of the Trees Act. The survey that was provided in response to that direction indicated, in the survey report, that that survey had been taken in a point significantly above ground level rather than at ground level. On 11 June when the first site inspection was undertaken by me and Acting Commissioner Galwey, we pointed out the deficiency in the survey and granted an adjournment until a second hearing to permit a new survey to be undertaken at ground level.
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