New South Wales Supreme Court CITATION : YONIN v MORMUL [2000] NSWSC 587 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12187/99 HEARING DATE(S) : 09/06/00 JUDGMENT DATE : 9 June 2000 PARTIES : Zinaida YONIN v Sabina MORMUL JUDGMENT OF : Barr J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT 9115/98 FILE NUMBER(S) : LOWER COURT Price LCM JUDICIAL OFFICER : COUNSEL : Plaintiff/Appellant: J Busuttil Defendant/Respondent: G Van Der Vlag SOLICITORS : Plaintiff/Appellant: Otto Stichter & Associates Defendant/Respondent: McGrath Dicembre & Co DECISION : Summons dismissed; Orders of the court below confirmed; Plaintiff must pay defendant's costs in an amount to be agreed or assessed THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J Friday, 9 June 2000 12187/99 - Zinaida YONIN v Sabina MORMUL JUDGMENT 1 HIS HONOUR: This is a summons by way of appeal to this Court under the provisions of Pt 5 of the Justices Act in which the findings of a magistrate, Mr Price, and the judgment based thereon are attacked. 2 The plaintiff seeks orders effectively reversing the result achieved in the Local Court. At all relevant times the plaintiff, Mrs Zinaida Yonin, resided in a house at 22 Ligar Street, Fairfield Heights. The defendant, Mrs Sabina Mormul, lived next door at 24 Ligar Street. 3 The structure of Mrs Mormul's house was damaged and she brought proceedings in the Local Court against Mrs Yonin asserting that the cause of the damage to her premises was the action of roots of trees growing on Mrs Yonin's premises. 4 As the learned magistrate observed, this was a most unfortunate case. Both parties were elderly and in poor health and the resentment of Mrs Mormul for what she perceived as the plaintiff's responsibility for the damage to her premises had existed for many years. There were complaints to the Council and a great deal of time and money were spent on obtaining reports of engineers and architects as to the cause or causes of the damage to Mrs Mormul's property. 5 In due course the magistrate found a verdict for Mrs Mormul. He found in particular that there were two causes of the damage, namely movement of supporting clay soils and the effect of the roots of trees growing on the plaintiff's property. 6 His Worship attributed, as he said arbitrarily, fifty per cent of the responsibility to the tree roots and went on to assess damages against the plaintiff according to that apportionment. 7 In bringing this summons Mrs Yonin sets out fifteen grounds which assert in one way and another that in coming to his conclusion the learned magistrate erred in law. It can be said in general terms that not all the grounds of appeal on their face reveal any error of law. However, it is not necessary to say much about that matter because only three grounds of appeal have been argued. 8 The first ground of appeal argued was ground 4, which is in the following terms: "The learned Magistrate erred in law in the exercise of his discretion in that he failed to take into account a relevant factor, being the level of expertise of the defendant's expert witnesses and in particular the precise nature, standing and quality of the defendant's expert witnesses." 9 As appears from his Worship's reasons for judgment there were put before the Court nine experts' reports. Some of them favoured Mrs Yonin and concluded that the tree roots were in no way responsible for the damage. Others favoured the other side. None said that the tree roots were solely to blame. 10 All reports which said that the tree roots were responsible said also that there were other causes, principally the state of the supporting soil (that being clay and subject to expansion and contraction with changes in moisture levels), faulty construction and the presence of water. 11 Early in his reasons for judgment his Worship listed by name and date the nine reports which were put into evidence before him. During the course of summarising the evidence his Worship dealt with the content of some of them. 12 The reports have not been put before this Court. It is not to be supposed that his Worship was doing anything other than select relevant passages from the reports. There was no attempt to set out the reports in full. 13 One of the reports which favoured Mrs Mormul was of an architect, Mr Lawrence Bower. One of the things that it said was that the plaintiff's trees were Eucalypts and that Eucalypts had a well-known propensity for withdrawing substantial quantities of water from the soil with resulting problems of desiccation, settlement and the like. 14 One of the reports the plaintiff filed in response was of Mr Ford. Mr Ford observed among other things that Mr Bower was wrong when he said the trees were Eucalypts. In fact, he said, they were Melaleucas. The inference was that the roots of Melaleucas did not have the dangerous propensity that Eucalypt roots had. 15 Which of the two reports is correct it is impossible for me to say and it seems equally likely that the magistrate might have thought that Mr Bower was right in saying that the trees were Eucalypts or that Mr Ford was right in saying that they were not. 16 The criticism made on appeal is that his Worship did not refer in terms to Mr Ford's criticisms of Mr Bower's opinion. 17 There will be cases where the failure of a judicial officer to mention a particular matter may give rise to the inference that some important evidence which might bear upon the result has been overlooked and a miscarriage of justice may have occurred. 18 However, I would not draw such an inference in the present case. As I have said, the reports were voluminous and all the learned Magistrate could do was to summarise certain parts of them. I would not infer that his Worship did not consider that particular difference of opinion between the two experts. 19 It does not seem to me that it was necessary for him to express a conclusion about it, particularly in view of the fact that Mr Bower's opinion was that tree roots were partly responsible, and that that opinion was shared by other experts. His Worship may well have taken the view that the question whether the tree roots were Eucalypt or Melaleuca was of minor importance. This ground of appeal fails. 20 The next ground of appeal asserted that his Worship erred in law in attributing fifty per cent of the damage to the tree roots. There was evidence upon which his Worship was entitled to come to that view. It has not been demonstrated that the apportionment made was outside the range of his Worship's proper discretion. There was no error of law. 21 The final ground argued was that his Worship failed altogether to comment upon one of the reports. As I said earlier in this judgment, his Worship began by listing the reports which had been put into evidence. The last such report was one of W G Scott made on 9 October 1998. Following the listing his Worship summarised the contents of the reports. There is no summary of the report of Mr Scott. The report of Mr Scott favoured the plaintiff. 22 I am asked to infer that his Worship failed to consider Mr Scott's report and the opinion contained in it. I would not draw that inference in the present case. Mr Scott's report has not been put before this Court. In summarising the reports his Worship dealt with a number of opinions favouring the plaintiff's case. I can only think that this was just such another opinion and that his Worship considered it unnecessary to set out the detail of it. This ground of appeal also fails. 23 The summons is dismissed. The orders of the court below are confirmed. The plaintiff is to pay the defendant's costs in an amount to be agreed or assessed. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.