Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Land and Environment Court New South Wales

Medium Neutral Citation: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Hearing dates: 24 June 2010, 25 June 2010, 7 July 2010 Decision date: 04 March 2011 Before: Craig J Decision: 1. Application dismissed 2. Notice of Motion dated 23 November 2010 is dismissed 3. Exhibits may be returned 4. No order as to costs Catchwords: ENVIRONMENT AND PLANNING:- trees and vegetation - Trees (Disputes Between Neighbours) Act 2006 - causation - "preponderance of probability" to determine causation - tree found not to be cause of damage - not satisfied that causal connection between tree and damage established - application dismissed

COSTS:- LEC rule 3.7(2) - fair and reasonable - application for departure from rule that no costs order be made - application refused - ordinary costs rule applies - no costs ordered - costs burden to lie where it falls Legislation Cited: Land and Environment Court Act 1979 Land and Environment Court Rule 3.7(2) Trees (Disputes Between Neighbours) Act 2006 Cases Cited: McDonald v Director-General of Social Security (1984) 1 FCR 354 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291 Category: Principal judgment Parties: David Smith (Applicant) Sharon Hannaford (Applicant) Jinming Zhang (First Respondent) Guichang Zhou (First Respondent) Winston Chu (Second Respondent) Connie Chen (Second Respondent) Representation: Counsel: M D Seymour (Applicants) G A Moore (First Respondents) S M Berveling (Second Respondents) Solicitors: Booth & Boorman Solicitors (Applicants) Dennis Wong & Co (First Respondents) Wintergate & Associates (Second Respondents) File Number(s): 20228 of 2010