Lister & Anor v Hong & Anor [2006] NSWSC 1135

New South Wales Supreme Court

CITATION : Lister & Anor v Hong & Anor [2006] NSWSC 1135

HEARING DATE(S) : 27 July 2006

JUDGMENT DATE : 31 October 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) The appeal is upheld ; (2) The decision of Magistrate Schurr dated 23 May 2005 in relation to tree root damage is affirmed ; (3) The decision dated 23 August 2005 in relation to tree branch damage is set aside; (4) The matter is remitted to the Local Court to be dealt with according to law, on the issue of nuisance caused by the overhanging branches; (5) The defendants are to pay the plaintiffs' costs as agreed or assessed. The defendants are to have a Certificate under the Suitor's Fund Act, if applicable.

CATCHWORDS : Appeal decision of Local Court Magistrate - trees on adjoining property - nuisance - Limitation Act - should different limitation periods arise with roots and branches or should the tree be treated as a whole

Limitation Act 1969 (NSW) - s 54 Local Courts Act 1982 (NSW) - ss 73, 74, 75 Supreme Court Act 1970 (NSW) - s 68 LEGISLATION CITED : Uniform Civil Procedure Rules (NSW) 2005 - Rule 46.3(1) Clerk & Lindsell on Torts, 19th ed The Law of Torts 9th ed Neighbour and Neighbour Relations (NSWLRC Report 88, November 1998)

Barton v Chhibber (1988) Aust Torts Reports 80-195 Davey v Harrow Corporation [1958] 1 QB 60 Leakley v National Trust for Places of Historic Interest or Natural Beautyc [1980] 1 QB 485 Noble v Harrison [1926] 2 KB 332 CASES CITED : Peisley v Ashfield Municipal Council (1970) 21 LGRA 243 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 Sparke v Osborne (1908) 7 CLR 51 51 State of South Australia v Simionato & Ors [2005] SASC 412 The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Young v Wheeler (1987) Aust Torts Rep 80-126