St Clair v Kilham [2018] NSWLEC 1071

Land and Environment Court New South Wales

Medium Neutral Citation: St Clair v Kilham [2018] NSWLEC 1071 Hearing dates: 20 December 2017 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is upheld. (2) Gaye Lesley Kilham is joined as the Second Respondent in these proceedings. (3) Within 30 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably qualified and experienced structural engineers, with appropriate professional indemnity insurance, for designing and specifying a wall to replace the existing boundary wall from Pier 1 to Pier 7, using similar or equivalent materials. (4) The cheapest quote from (3) is to be selected, unless the parties agree on another of the quotes. (5) Within 45 days of the date of these orders the applicant is to engage and pay for the selected engineer from (4) to design and specify the construction of the replacement wall (Pier 1 to Pier 7). (6) Within 90 days of the date of these orders the applicant and the respondents are to each obtain at least two quotes from suitably experienced contractors, with appropriate insurances, for demolishing the existing wall and building the replacement wall as specified. Each quote must show separately the amounts for demolishing and constructing Pier 1 to Pier 4, and Pier 4 to Pier 7. (7) The cheapest quote from (6) is to be selected, unless the parties agree on another of the quotes. (8) Within 120 days of the date of these orders the applicant is to engage and pay for the selected contractor from (7) to demolish the existing wall (Pier 1 to Pier 7) and construct its replacement. (9) Within 14 days of receiving copies of receipted invoices for the engineer's design (see order (5)) and the contractor's demolition and construction (see order (8)), the respondents are to pay the applicant 50% of the engineer's invoice, 50% of the cost of demolishing and building Pier 4 to Pier 7 of the wall, and 60% of the cost of demolishing and building Pier 1 to Pier 4 of the wall. (10) If the respondents do not receive receipted invoices for the works within 6 months of the date of these orders, order (9) lapses. (11) Liberty to relist on 7 days' notice for the purpose of working out these orders. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; root damage; boundary wall; whether roots caused damage to the entire wall; Dividing Fences Act; orders for replacing the boundary wall. Legislation Cited: Dividing Fences Act 1991 No 72 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Paul St Clair (Applicant) Henry Kilham (First Respondent) Gaye Kilham (Second Respondent) Representation: B Campbell (solicitor) (Applicant) H Kilham (self-represented) (Respondents)