Kunz v Palgi [2013] NSWLEC 1015

Land and Environment Court New South Wales

Medium Neutral Citation: Kunz v Palgi [2013] NSWLEC 1015 Hearing dates: 17 January 2013 Decision date: 17 January 2013 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; tree not shown to be cause of damage; application dismissed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: APPLICANT Walter Kunz

RESPONDENT Silva Palgi Representation: APPLICANT Ugo Parente (Marsdens Law Group)

RESPONDENT Lynne Worrall (Solicitor) File Number(s): 20994 of 2012

Judgment 1ACTING COMMISSIONER: Approximately seven years ago Mr Walter Kunz first noticed that a section of concrete paving near a rear corner of his Lansvale property was cracked and lifting. In February 2012 he received advice from an arborist that the damage was caused by roots of a neighbouring tree. He has applied to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the owner of the tree to pay for the its removal, poisoning of roots, compensation for the cost of repairing the damaged concrete and also for the applicant's legal costs. 2Regarding the last matter, Commissioners do not have the power to award costs, so that would require a Notice of Motion to be heard by a Judge. For the Court to make the other orders I must first be satisfied that the neighbour's tree has caused the damage. I must then consider a range of matters set in s 12 of the Act before making any orders as I see fit according to s 9. 3Mrs Palgi owns the neighbouring property on which stands the dead trunk of the tree that Mr Kunz says has caused the damage. She refutes that the damage is caused by her tree. 4The onsite hearing allowed a view of the paving, the tree and other relevant evidence from within both properties. Both parties were represented by solicitors and Mr Tarmo Rae, Mrs Palgi's son, provided additional information on behalf of his mother.