Dimitrios Michos & Another v Council of the City of Botany Bay (No. 2) [2012] NSWSC 1464

Supreme Court New South Wales

Medium Neutral Citation: Dimitrios Michos & Another v Council of the City of Botany Bay (No. 2) [2012] NSWSC 1464 Hearing dates: 20 June 2012 Decision date: 20 June 2012 Jurisdiction: Equity Division Before: Slattery J Decision: Defendant will pay the plaintiffs damages in the sum of $124,000. Form of prohibitory and mandatory injunctions settled. Court declines to order the sequence of the work required under the mandatory injunction. The defendant will pay the plaintiffs' costs of the proceedings. Catchwords: PROCEDURE - Judgments and orders -issues as to form of orders to restrain nuisance caused by tree roots. Cases Cited: Dimitrios Michos & Another v Council of the City of Botany Bay [2012] NSWSC 625 McCombe v Read [1955] 2 QB 429 Category: Consequential orders Parties: First Plaintiff:- Dimitrios Michos Second Plaintiff:- Rene Michos Defendant:- Council of the City of Botany Bay Representation: Counsel: Plaintiffs:- Ian E Davidson SC; Andrew Connolly Defendant:- Paul S Jones Solicitors: Plaintiffs:- Francis Farmakidis - JSM Lawyers Defendant:- Gary Weetman - McCulloch & Buggy File Number(s): 2009/290790 Publication restriction: No

EX TEMPORE Judgment 1This is my second judgment in these proceedings. In my first judgment the Court found that the three fig trees growing on the defendant Council's land adjacent to the plaintiffs' residential property constituted a nuisance to the plaintiffs and that mandatory injunctive relief to put in a root barrier was warranted in the circumstances: Dimitrios Michos & Another v Council of the City of Botany Bay [2012] NSWSC 625. 2The Court also assessed damages in the proceedings for each of the heads of damage for physical loss and for the claimed loss of amenity, Dimitrios Michos & Another v Council of the City of Botany Bay [2012] NSWSC 625 at [118] to [157]. 3The parties are before the Court today to argue about the proper form of final orders and about indemnity costs. The matters of costs were argued but the parties will have an opportunity to put on further written submissions on that issue. This judgment therefore deals with the issues as to the form of final relief. The Court has been given competing short minutes of order as to final relief. The differences between the parties can be identified as a set of discrete issues. I will deal with these seriatim in this judgment. 4The first issue is whether a prohibitory injunction is required in addition to the form of mandatory injunction. The defendants argue that a negative injunction is not required because the agreed form of mandatory relief requires the root barrier to be effective and that will have the same effect as a negative injunction. 5I do not regard the issue of negative relief in addition to a mandatory injunction as foreclosed by my principal judgment. In my view, the plaintiffs' arguments upon this issue are the more persuasive, and for those reasons negative injunctive relief will be granted. 6First, the Court should bring the disputes between the parties to an end and finally quell their dispute. Unless negative relief is granted, notwithstanding the arguments about the extent of the meaning of the words "effective root barrier" advanced by the defendant, that the dispute may bubble up again in the future if a prohibitory injunction is not granted. Examples of this can be seen. The tree roots might penetrate into the plaintiffs' land under or around the root barrier, especially on the Florence Street side. On the evidence before me this is an unlikely but a not impossible scenario. 7If the Court can contemplate that as a possibility, then the Court should minimise litigation in the future about what is effectively the same subject matter as this suit. A negative injunction will be effective to define the rights of the parties in such a situation, which would not be covered by a mandatory injunction. 8Secondly, Mr Davidson of Senior Counsel points out that if a negative injunction is not granted that the mandatory injunction will need to be more prescriptive in relation to the future maintenance and inspection of the root barrier. 9There was evidence in the hearing about the frequency with which the root barrier would need to be inspected and maintained. Without a negative injunction it would be legitimate for the plaintiffs to argue for the inclusion of detail about such matters in the form of mandatory injunction. It is preferable for that kind of detail not to be included. A negative injunction will provide the flexibility to the defendant, to take such steps by way of supervision, inspection and checking as may be required to ensure the negative injunction is not breached. 10So for these reasons a prohibitory injunction, in the form of paragraph 2 of the plaintiffs short minutes of order, will be included in the final orders. 11The next issue is the form of order 3. The plaintiffs originally proposed that order 3 specify the depth of the root barrier down to 2 metres below the surface of the soil and five centimetres above the surface of the soil with severance of the fig tree roots that now enter the property. 12The defendant objected to those parts of the proposed order. But in light of the Court's ruling about order 2, these differences have disappeared. The plaintiffs do not now object to the form of order which the defendant proposes, which will be the form of order which the Court will make. 13Order 4 will remain in a form which contains the words for which the plaintiff contends, "to the extent if any reasonably required". These words are designed to make it clear that access may not necessarily be required for the purposes of constructing the root barrier but nevertheless, what is reasonably required shall be permitted. 14The last issue is that the defendant has sought to include in the final orders an order sequencing the building works. The order is to the effect that "Installation of the root barrier is to be carried out when the boundary fences on the property are demolished prior to reconstruction and once the sewer line connecting the property to the board sewer has been replaced". The plaintiffs contend this is not an appropriate final order. But the defendant explains the need for the order, so that a proper organisation and ordering of the works is undertaken. 15Both sides have some merit in this argument. But the Court will not specify the work sequence to this close extent, as part of its orders. To do so may require the Court to become enmeshed in supervision of the works through the Court orders, something which the Court will not do. Moreover, this degree of specification of the work sequence may not solve all the problems that the parties have about work related issues. The parties' joint interests are to ensure that the works are done within a time sufficient to allow the defendant to do what work is necessary, but sufficiently quick to provide effective relief for the plaintiffs. 16The best course is to nominate in the orders a date in November 2012 by which all the works will be done, in whatever sequence the parties ultimately decide is best. But they will have liberty to apply to the Court if necessary to extend that date. So the words, "by Friday November 23 November 2012 at 5pm shall" will be included in order 3. 17His Honour makes the following orders and directions:- 1. The defendant pay the plaintiffs damages of $124,352. 2. The defendant by itself, its servants and agents be restrained from causing or permitting the roots from any of the 3 Hills fig trees ("the Trees") standing in the nature strip outside the western and northern boundaries of the plaintiffs' property being Lot 127 in Deposited Plan 17209 ("the Property") to encroach on the Property. 3. The defendant by Friday 23 November 2012 by 5pm shall install an effective root barrier as close as possible to the outside line of the current boundary fences on the Plaintiffs' Property (the Property) such root barrier to extend: (i) For the full length of the Property on Florence Avenue; (ii) For the length of the frontage of the Property on Vernon Avenue from the point where it meets the barrier extending along the Florence Avenue frontage to the point perpendicularly in line with the rear (eastern) wall of the old residence on the Property. 4. The defendant is to be given reasonable access to the Plaintiffs' Property to the extent if any reasonably required for the purpose of constructing the root barrier. 5. The defendant shall give reasonable notice to the plaintiffs in advance of the timetable for the construction of the root barrier and the timing and extent of any likely disruption to free passage to and from the Property as a result of the construction work. 6. That exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. 7. Grant liberty to apply in relation to the carrying into effect of these orders. 8. The defendant will pay the plaintiff's costs of these proceedings. I reserve for further consideration whether the whole or part of those costs should be paid on the indemnity basis. 9. I will direct both parties to put in further written submissions on matters that they do not believe have been covered by their oral submissions together with any references they wish to make to other authority by 5pm on 3 July 2012. I will then reserve my decision.