Baker v Grabovac [2010] NSWLEC 1289

Land and Environment Court of New South Wales

CITATION : Baker v Grabovac [2010] NSWLEC 1289

APPLICANT G and E Baker PARTIES : RESPONDENT D Grabovac

FILE NUMBER(S) : 20666 of 2010

CORAM: Fakes C - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- compensation; damage to sewer

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 21/10/10

DATE OF JUDGMENT: 21 October 2010

EX TEMPORE JUDGMENT DATE : 21 October 2010

APPLICANTS G and E Baker [litigants in person] LEGAL REPRESENTATIVES:

RESPONDENT D Grabovac [litigant in person]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C Hewett AC

21 October 2010

20666 of 2010 Baker v Grabovac

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

1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Casula against the owner of tree on an adjoining property. 2 The applicants are seeking compensation of a total of $12,225. This sum includes plumbing costs of $11,470 associated with the removal and replacement of blocked sewer pipes and associated works to an ensuite bathroom. It also includes a sum of $755 for legal fees, the application filing fee and other costs associated with the cost of making the application. 3 Before proceeding, it is necessary to state that Commissioners do not have the delegation to award costs associated with the making of an application. 4 The tree is question was a Camphor Laurel growing adjacent to the boundary fence between the two properties and approximately 1.5 m from the applicants' ensuite bathroom. Photographic evidence tendered by the applicants shows the tree reduced to a stump with the remaining part on the ground. The tree was said by the applicants to be some 5-6 years old and was there when the respondent purchased his property. The tree removal appears to have taken place after the 11th June 2010. 5 Between the directions hearing and the on-site hearing, the respondent had the stump removed to prevent any further growth. Section 4(4) of the Act states that a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on the land for the purposes of the application. 6 The basis of this application is that in May 2010 a toilet in the applicants' ensuite bathroom became blocked. A plumber that the applicants had used previously inspected the problem on the afternoon of 24 May. Based on what he saw he advised that the blockage was likely to be caused by tree roots. 7 The plumber returned the next day (a Tuesday) and took a number of actions to rectify the problem. These actions included water jetting, inspection with CCTV and excavation of certain sections of plumbing. Roots of the Camphor Laurel were found in the PVC pipes and enough of the pipe was unblocked so that the toilet could function. The plumber advised the applicants that there were problems elsewhere in the pipe that would need attention at a later stage. The cost of the initial works was $2000. 8 In response to the blockage and the emergency plumbing works, the applicants approached the tenants of the respondent's property (on the following Saturday) in order to ascertain the owner's contact details. The tenants gave them the name of the real estate agent. 9 The agent was contacted by phone and asked the applicants to put their claims in writing. This was sent by fax on 31 May. 10 In that fax, the agent is advised of the works that had been carried out on 25 May and notice was given that further works to repair the damaged pipes would be completed in a few weeks. The applicants sought reimbursement from the respondent of 50% of the cost of the works completed on 25 May. That is, the amount sought from the respondent at that stage was $1000. 11 The applicants contend they had no response from the respondent. The respondent stated that he made two phone calls. The applicants said that no message was left on either occasion. 12 Some relatively short time later, the toilet became blocked again. The plumber who carried out the initial work returned on 10 June and undertook some further work. It appears that as a result of this work, the plumber became aware of a much greater problem and prepared a quote to remove roots from the pipes and fittings in the bathroom. It appears from the tax invoices and quotes that the initial work on 10 June cost $2600 and the quote for the additional work was estimated at $8,800. 13 The additional works to the interior of the bathroom were commenced on 10 June. These additional works included digging up the floor of the bathroom, removing the toilet bowl and floor waste and then reinstating the bathroom. 14 The applicants insist that they were very mindful of keeping costs to a minimum. They were very unhappy that the extent of the damage, as seen by one of the applicants on CCTV, was such that the roots had penetrated the fixtures and pipes to such an extent that they were incapable of being cleared in a more conventional and less destructive manner. 15 On 15 June, another fax was forwarded to the respondent's agent advising them of the subsequent works. We note that at the time this fax was sent the works to the bathroom were stated as being close to completion and the estimated final cost of the internal work was $7,900. This was in addition to the $2600 for the initial works on 10 June. 16 The respondent was asked to reimburse the applicants 50% of both these amounts. 17 In support of their application, the applicants included both the plumber's quotes and the tax invoices from 24/25 May, 10 June and 18 June. 18 These documents are very confusing. There are inconsistencies in the method and the notations used by the plumber to indicate if the works were paid for. An additional complication is that payments were made in instalments. As no other evidence was tendered, such as bank/credit card statements, we can only work on the evidence before us. 19 We are satisfied that $2000 was paid for the work on 25 May and $1000 was paid as a deposit for the internal works on 10 June and $3500 was paid on 24 June (on the tax invoice dated 18 June). We are unclear about the $2600 on 10 June as there is no notation on the invoice. We do note a sum of $2400 noted as a 'balance' paid on a tax invoice dated 18 June but we are very unclear as to what it relates to as it could relate to the overall 'total' of the invoice stated as $3500 which is noted as 'paid in full'. Given the confusion we consider the benefit of the doubt should go to the respondent.