Liang v Marsh & anor [2017] NSWLEC 1208

Land and Environment Court New South Wales

Medium Neutral Citation: Liang v Marsh & anor [2017] NSWLEC 1208 Hearing dates: 19 April 2017 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Tree removal ordered see [20] Catchwords: TREES [NEIGHBOURS] Damage to property, injury; compensation; dead tree; procedural matters; actions of the parties; removal at applicant's expense Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Joaquim v Adamson [2009] NSWLEC 1312 Liang & anor v Marsh & anor [2011] NSWLEC 1026 Category: Principal judgment Parties: Jia Liang (Applicant) Paul Marsh (First Respondent) Diane Gibbins (Second Respondent) Representation: Applicant: Jia Liang (Litigant in person) Respondents: Paul Marsh (Litigant in person) File Number(s): 33848 of 2017

judgment 1. COMMISSIONER: Mr Liang, who owns a property in Denistone, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a dead tree from the respondents' property. He is also seeking compensation for fixing an antenna and roof tiles, which he contends were damaged when a branch fell from the tree during a storm on 24 January 2017. Mr Liang is claiming an estimated sum of $500 for each item. 2. The orders are sought on the basis of actual and potential damage and the risk of injury. 3. Before proceeding with the substantive matters, Mr Liang made opening submissions seeking to prevent the tendering of the respondents' material for the reason that the respondents had failed to observe the timetable set down in the directions made by Justice Moore at the Directions Hearing on 21 March 2017. The respondents were given until 12 April 2017 to file and serve any material they intended to rely upon. For the reasons explained by Mr Marsh, the first respondent, on site during the hearing, the attempt to serve the applicant was made on 13 April, being the earliest date after returning from a trip. In the circumstances, I consider it reasonable to allow the tendering of the respondents' evidence. I am satisfied that Mr Liang has had sufficient time to read the material and respond to it and thus is not unduly or unreasonably prejudiced.