Cheng v He (No 2)

Texts Cited: Australian Standard 4373:2007 ‘Pruning of amenity trees’

Category: Principal judgment

Parties: Kuiyu Cheng (Applicant)
Jiade He (First Respondent)
Fang Zheng (Second Respondent)

Representation: Counsel:
K Cheng (Self-represented) (Applicant)
J He (Self-represented) (First Respondent)
F Zheng (Second Respondent)

File Number(s): 2026/00003572

Publication restriction: Nil

JUDGMENT

Introduction and outcome

1. On 20 April 2026, Acting Commissioner Galwey delivered judgment and made orders in Class 2 Tree Dispute proceedings that concerned damage caused by a tree to a roof of a neighbouring property in Beecroft: Cheng v He [2026] NSWLEC 1245 (‘Judgment’). Before the Court is a notice of motion filed by Kuiyu Cheng (‘applicant’) on 1 September 2026 (‘contempt motion’) seeking orders that his neighbours, Jiade He and Fang Zheng (the first and second respondents, together the ‘respondents’) each be punished for contempt of this Court for breaching the orders made by Commissioner Galwey.

2. The applicant’s primary allegation in these contempt proceedings is that certain works and conduct that were, pursuant to the orders of 20 April 2026, required to be undertaken by the respondents, have not been carried out. The respondents have accepted they did not comply with the Court’s orders within the time required however maintain that the works required by the orders have now been completed, and, in those circumstances, they have substantively complied with their obligations pursuant to the orders.

3. For the reasons that follow, I find that the respondents are guilty of contempt of this Court and consider that the appropriate punishment for each respondent is the imposition of a fine in the sum of $1,000 and that the respondents are to pay the costs incurred by the applicant in filing the contempt motion in the sum of $285.

Background

4. By application filed 5 January 2026, the applicant commenced Class 2 Tree Dispute proceedings seeking orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) for pruning and maintenance in relation to a large Sydney blue gum (the ‘tree’) being some 25 to 30 metres tall, with a stem diameter of 80 centimetres, situated on the respondents’ land, close to the common boundary. In the Judgment, Commissioner Galwey found that branches from the tree had fallen and broken roof tiles on the roof of the applicant’s dwelling and the Court found that although the tree had no structural defects, certain branches above the applicant’s dwelling were overextended and likely to fail in the foreseeable future and likely to cause damage and/or injury.

5. The orders made by the Commissioner were as follows:

“(1) The application is granted to the extent of the following orders.

(2) The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the tree near the southwest corner of their property during May every 3 years, beginning in May 2026, as follows:

(a) remove dead branches greater than 25 mm in diameter;

(b) reduce overextended branches above the applicant’s property by pruning them back to suitable lateral branches or to their branch collars, removing no more than 20% of live crown mass; and

(c) remove any broken or damaged branches, or any other branches identified by the arborist as being hazardous.

(3) The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondents are to give the applicant at least 7 days notice of each event of the works in Order (2).

(5) On at least 7 days notice from the respondents, the applicant is to allow access to their property during reasonable hours of the day for each event of the works in Order (2).

(6) The exhibits are returned, other than Exhibit A.”

(the ‘Orders’)

6. The applicant claims that the Orders have not been complied with by the respondents. In the contempt motion, the applicant seeks the following relief against the respondents:

“(1) An order that the First and Second Defendants are in contempt of this Honourable Court by reason of their continuing failure to comply with Order (2), Order (3) and Order (4) of the Orders made by this Court on 20 April 2026 (the Orders), as particularised in the accompanying Statement of Charge.

(2) An order that the First and Second Defendants pay the Plaintiff’s costs of an incidental to this motion.

(3) An order for such further steps as the Court considers appropriate to secure completion of the outstanding tree works required by the Orders, including, if the Court considers appropriate, orders authorising the outstanding works to be carried out by a suitably qualified arborist and requiring the First and Second Defendants to pay the reasonable costs of those works.

(4) Such further or other orders as this Honourable Court deems appropriate.”

7. In the Statement of Charge filed with the contempt motion, the applicant specifies three discrete charges being, first, breach of Order (2), being a failure to prune the tree; second, breach of Order (4), being a failure of the respondents to give the mandatory 7 days’ notice of pruning works; and third, breach of Order (3), being a failure to comply with Australian Standards in relation to pruning of amenity trees.

8. When the contempt motion proceeded before me on 12 October 2026, the respondents admitted their guilt in relation to each of the charges.

Evidence

Applicant’s position

9. In support of his contempt motion, the applicant read his two affidavits affirmed 31 August and 7 October 2026 and provided written and made oral submissions. I note the following by way of summary only.

10. In his first affidavit affirmed 31 August 2026, the applicant detailed the background of the proceedings before Commissioner Galwey and noted that despite the Orders, works had not been undertaken by the respondents. As such, he took photographs of the tree on 23 June 2026 (which he annexed to his affidavit) and thereafter obtained legal advice in relation to these proceedings. On 12 July 2026, he observed a man undertaking some pruning works on the tree who informed the applicant that he was unaware of the Orders and, as such, unaware of the scope of the works required to be undertaken by the Court. The applicant further deposes that the pruning works carried out on 12 July 2026 addressed only part of the works required by the Orders and he took further photographs of the tree which he also annexed to his affidavit in support of his claim. On 22 July 2026, he sent an email to the respondents in relation to his concerns as to the outstanding pruning works to which he received no reply. On 10 August 2026, he noticed that certain branches had fallen onto his property from the tree and was concerned in relation to the risks that remained after the partial pruning works were undertaken on 12 July 2026.

11. In his second affidavit affirmed 7 October 2026, the applicant deposes that he had not received any response from the respondents to a number of his emails and requests until after he had served the “contempt documents” on about 2 September 2026. He noted that at a directions hearing of this motion on 11 September 2026, Justice Pain indicated to the first respondent that the respondents were required to comply with the Orders. The applicant deposes that, having seen the respondents’ affidavits filed in these contempt proceedings (considered further below), he then contacted Mr Yu, the arborist who had previously undertaken some works on behalf of the respondents (including the works undertaken on 12 July 2026) and that Mr Yu informed him that he had not been aware of, nor seen, the Orders at the time he undertook the pruning works on 12 July 2026, and that he had no agreement with the respondents to do any further works.

12. The applicant further deposes that on 21 September 2026 further pruning works were carried out to the tree and the arborist who had undertaken that work had indicated to the applicant that he had seen the Orders. At that time the applicant raised with the arborist his concern that some of the branches that had been considered in the Orders had not been pruned, and although he had remaining concerns, he was not in a position to confirm whether the Orders had been fully complied with. However, after the pruning works on 21 September 2026, he compared the works that had been undertaken with the Orders (and the Court’s “pruning diagram”) and on 25 September 2026, he took further photographs of the tree which he annexed to his affidavit along with screenshots from CCTV footage showing the tree before and after the pruning works.

13. The applicant does not accept that the Orders have been “100% completed” and when he corresponded by email with the first respondent to that effect, the first respondent did not respond. The applicant noted that some branches continued to fall before the pruning works on 21 September 2026 and he took photographs of those branches. He deposes that on 30 September 2026, that is, after the pruning works on 21 September 2026, his CCTV recorded footage of a branch falling onto his driveway.

14. In his written submissions, the applicant repeated that he had received no response from the respondents until after he had commenced the contempt proceedings and that, by the time the further pruning been undertaken on 21 September 2026, 113 days had passed since the Orders were made. In his written submissions, he asked the Court, first, to find that the contempt had occurred; and second, to make an order that his costs of filing the motion, being a $285 filing fee, be paid and that the Court “consider my claim for compensation for property damage” and to determine, finally, whether Order (2)(b) had been fully complied with.

Respondents’ position

15. The first respondent stated that he appeared for himself and that the second respondent, his wife, who did not attend the hearing, gave the first respondent instructions to appear on her behalf. The first respondent read his affidavit affirmed 29 September 2026 and the affidavit of the second respondent affirmed 23 September 2026. He also made oral submissions. I note the following by way of summary only.

16. In his affidavit of 29 September 2026, the first respondent deposes that before the Orders were made by the Court, he had sought professional assistance regarding the tree and that after the Orders were made, on 20 April 2026, he sought further arborist advice in relation to the pruning works that were required to be undertaken. He accepts that the required pruning works were not carried out at the appropriate time in non-compliance with the Orders and that he subsequently had engaged an arborist, Mr Yu, to undertake the pruning. He deposes that by July 2026, the pruning works had already been delayed for several weeks, which resulted in him pressing Mr Yu to attend to undertake the works. Mr Yu thereafter become available and attended on 12 July 2026 with an assistant. The first respondent states that, contrary to the applicant’s evidence, at that time, his wife, the second respondent, showed one of the workers a copy of the Orders and thereafter left the pruning works to be undertaken by the arborist. He accepts that during the pruning operation, a number of tiles on the applicant’s property were damaged and that the works, although not completed, had been stopped temporarily “for safety reasons”.

17. The first respondent also acknowledges that he did not give the applicant the required seven days’ notice prior to the pruning works on 12 July 2026, and he did not do so because of his understanding that the works had already been delayed for several weeks. He deposes that he understands he should have given notice as required by the Orders and he did not intend to disregard the Orders. He accepts that he did not respond to the applicant’s communications and again notes that he did not intend to appear to abandon the pruning works that he accepts were outstanding.

18. The first respondent deposes that in September 2026, he retained a Level 3 arborist and thereafter engaged a further arborist in an effort to have the outstanding works completed and purge the contempt. He states that by 21 September 2026, he had engaged the new arborist (not Mr Yu) to ensure that the Orders in relation to the pruning works would be completed. He deposes that he was of the understanding that the pruning works required by the Orders had been completed on 21 September 2026 in full, and he annexed to his affidavit an email from the arborist and photographs which seek to show the works were completed in accordance with the Orders.

19. The first respondent deposes that he accepts that “completion” of the Orders occurred after the time specified in the Court’s Orders, and that the earlier pruning (on 12 July 2026) did not complete the required pruning works and that after that time he continued to arrange arboricultural assistance which was ultimately undertaken on 21 September 2026.

20. In his affidavit affirmed 29 September 2026, the first respondent sincerely apologises for his failure to complete the pruning works and his failure to give the applicant seven days’ prior notice as required by the Orders. In relation to charge one, the applicant deposes that he understands that the pruning required was not completed within the period specified by the Court; in relation to charge two, he acknowledges that he did not give Mr Cheng seven days’ notice prior to the pruning works being undertaken on 12 July 2026 (noting that that works had already been delayed); and in relation to charge three, although he does not express an opinion in relation to compliance with Australian Standard 4373:2007 ‘Pruning of amenity trees’, he repeats that he did not intend to disregard any of the Court’s Orders and continued to take steps to obtain professional assistance until the remaining pruning works were carried out on 21 September 2026.

21. In her affidavit affirmed 23 September 2026, Fang Zheng, the second respondent, deposes as follows. She acknowledges that she was aware of the Orders and notes that Mr Yu attended (with an assistant) on 12 July 2026. At that time she showed Mr Yu’s “assistant” the photographs and diagrams concerning the tree and the pruning works required by the Orders and thereafter observed Mr Yu undertaking various pruning works on the tree, in particular, two branches. She further deposes that on 21 September 2026, a different arborist “team” attended in relation to the remaining works, and she observed that team carrying out pruning works on the tree on 21 September 2026. In her affidavit she deposes that she did not intend to disregard or disobey the Court’s Orders nor did she instruct Mr Yu to disregard the Court’s Orders nor to deliberately leave works, that were otherwise required to be done, incomplete.

22. The second respondent attended Court at the time this judgment was to be given and confirmed that she had not complied with the Orders as the Court had been informed of by the first respondent, her husband, and that she understood the nature of these proceedings.

Consideration

Legal principles

23. Pursuant to r 6.3 of the Land and Environment Court Rules 2007 (NSW) (‘Court Rules’), the Court’s power to punish for contempt is derived from Pt 55 of the Supreme Court Rules 1970 (NSW). Its purpose is to protect the effective administration of justice by, first, demonstrating that the Court’s orders will be enforced (Georges River Council v Hamade [2023] NSWLEC 71 at [32]; Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105 at [62]; Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797 (‘Pannowitz*’)*; (2006) 153 LGERA 126 at [20]); and second, vindicating the Court’s authority: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 (‘Mudginberri Station’) at [20] per Gibbs CJ, Mason, Wilson and Deane JJ; Pannowitz at [21].

24. Contempt of court can be constituted by a breach of an order of a court. The liability for breach of an order is strict. It does not require proof of deliberate disobedience, and it is not enough that a person made “genuine and reasonable” attempts to comply with the order.

25. A penalty for breach of an order may be imposed at general law even absent deliberate defiance, where the conduct was not merely “causal, accidental or unintentional”. Conduct cannot be said to be “casual, accidental or unintentional” if a person is required to take certain steps and fails to do so. The required steps do not need to be “reasonable”: Lade & Co Pty Ltd v Black [2006] QCA 294 at [66] (Keane JA); Ali v Collection Point Pty Ltd, in the matter of Collection Point Pty Ltd (No 2) [2010] FCA 1125 at [13] (Gordon J); Bryant v Keith Harris & Co Ltd [1980] FCA 173 at 139 (Franki J) and 151 (Lockhart J).

26. Civil contempt, as pursued in these proceedings, involves disobedience of a court order, as opposed to criminal contempt which involves contempt in the face of the court or interference with the course of justice: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 530, 538, 539 (McHugh J) (‘Witham’). I note however that the distinction between civil and criminal contempt has been found to be largely illusory as, in either case, the charge has to be proven by the moving party beyond reasonable doubt and the usual outcome is punishment: Wollondilly Shire Council v Khoder (No 2) [2025] NSWLEC 53 at [65] (Pritchard J).

27. A distinction is also drawn between a technical and non-technical contempt, and between a wilful or contumacious contempt, which serves to separate conduct that merits punitive sanction from conduct that does not: Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367 (‘Fairfax’). In making this differentiation, the intention of the contemnor is relevant, although not determinative: Bell v Stewart (1920) 28 CLR 419; [1920] HCA 68 at 419-432; cited in Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [41] (Preston CJ of LEC).

28. Technical contempt occurs when the contempt in question is casual, accidental or unintentional: Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [147]. Although constituting contempt, technical contempt does not warrant any punitive sanction: Fairfax at [16].

29. The elements of the offence of a civil contempt which must be proven beyond reasonable doubt have been identified by Perram J in Re. Group Pty Ltd v Kazal (No 4) [2017] FCA 1084 (‘Kazal’) at [73]-[74], and may be relevantly summarised, as follows:

30. the Orders made by the Court were sufficiently clear;

31. the respondent had knowledge of the terms of the Orders;

32. the respondent breached the Orders; and

33. the respondent took a deliberate step which, even if not intended to, breached the Orders.

34. Given each respondent’s evidence and the entry of pleas of guilty to each of the charges, I find that each of the elements noted at [29] above have been proven beyond reasonable doubt and that it is appropriate to consider the principles in relation to sentencing for contempt.

35. Non-compliance with an order or a judgment of a court necessarily constitutes an interference with the administration of justice (Witham at 533-534), and any punishment must therefore show that obedience to a court’s order is important and should reflect its gravity.

36. The underlying rationale of the exercise of a court’s power to punish for contempt is to protect the effective administration of justice by demonstrating that a court’s orders will be enforced: Mudginberri Station at [17]. The purpose of the law in civil contempt proceedings is to compel obedience, rather than to punish disobedience which is the domain of criminal contempt: Kazal at [73].

37. The Court’s power to punish a contemnor is inherent in its function as a superior court of record and, to the extent that there may previously have been some doubt, it is now clear that this power is not subject to criminal law sentencing statutes including the Crimes (Sentencing Procedure) Act 1999 (NSW); Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46]; Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 at [60] (‘Rollinson’).

38. The factors relevant to considering the appropriate penalty for contempt are well-known and are set out by Payne JA in Rollinson at [66]-[67], and generally reflect the factors earlier identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 (Dunford J). For present purposes, and in summary, the factors, which are overlapping, comprise: the seriousness of the contempt proven; the contemnor’s culpability; the reason or motive for the contempt; whether there has been any expression of genuine contrition by the contemnor; the character and antecedents of the contemnor; the contemnor’s personal circumstances; the need for deterrence of the contemnor and others of like mind; the need for denunciation of contemptuous conduct; and the likely effect that punishment will have on the contemnor, including any hardship it might cause.

39. I note that each of the parties conducted these proceedings and appeared without legal representation. I am conscious that, in the context of litigants in person, the Court must ensure that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented and that the Court has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair hearing.

Findings

36. I find the contempt has been made out in relation to each of the respondents and I accept each of the respondents’ admissions in relation to their respective conduct. I have considered the detailed photographic and documentary evidence including the correspondence between the parties. I have also considered the factors relevant to the determination of an appropriate penalty noted at [34] above and the principle of totality.

37. I consider that non-compliance with the Orders is relatively serious and that each of the respondents was aware of the consequences of non-compliance. Further, the Orders were made after a hearing where the Court found that the branches of the tree were likely to fall in the foreseeable future and, importantly, likely to cause damage and injury. The uncontested evidence is that branches did fall even after the Orders were made and indeed after some pruning works had been undertaken on 12 July 2026. While I am not satisfied that there were any material reasons for the delay in the respondents’ attendance to the Orders, I take into account that each of the respondents has offered an apology.

38. Despite the above, I consider that the offending is relatively serious and that there is a need for both personal and general deterrence. General deterrence is an important part of any sentencing calculation and particularly where the Orders were made in circumstances where the respondents participated in the hearing before Commissioner Galwey that led to the entry of the Orders in the primary judgment; and where they were aware of the facts and matters with which the applicant was originally concerned.

39. Taking these factors into consideration and in particular the evidence of the respondents and the principles noted above, and conscious of s 6 of the Fines Act 1996 (NSW), I consider that for each respondent the imposition of a fine in the amount of $1,000 is appropriate and that the applicant is entitled to the cost he incurred in filing this motion.

Orders

40. The orders of the Court are:

41. Jiade He is fined the sum of $1,000 for his contempt in failing to comply with the Court’s orders made 20 April 2026.

42. Fang Zheng is fined the sum of $1,000 for her contempt in failing to comply with the Court’s orders made 20 April 2026.

43. Jiade He and Fang Zheng, jointly and severally, are to pay costs incurred by Kuiyu Cheng, the applicant, in filing the notice of motion filed 1 September 2026 in the sum of $285 within 14 days of the date of these orders.

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