Cincotta v Huang and ors

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1.This dispute concerns a claim made under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). It is one that is, for disputes of this nature, of a little procedural complexity involving matters dealing with the failure of service of the originating process on one proposed respondent and with a cross-claim between respondents. 2.The difficulties with respect to service arise out of the fact that the applicant filed his tree dispute application on 22 November and endeavoured to serve the persons named in that application as the first and second respondents, by serving the documents on the first respondent at the front door of his home. The first respondent took those documents and, we are satisfied - accepting the evidence of Mr Cincotta on this point as we do, that: the documents that were served comprised not merely the tree dispute application, but also the supplementary material contained in the details of claim form; this constituted valid personal service on the first respondent (if that were not sufficient in the proceedings, the first respondent has filed a notice of appearance which he did on 6 April - we are therefore satisfied that he has been validly served and is therefore an appropriate and proper person against whom orders may be considered to be made); but With respect to the person originally named as the second respondent, who is the wife of the first respondent, we are not satisfied that there has been any personal service on her of any of these documents. 3.Although a yellow post-it note was attached to the originals of the documents that the applicant served on the first respondent and contains the notation, we're not interested in reading your doc you need to talk to new owner , that does not constitute, as we are satisfied it is in the handwriting of the first respondent, any acknowledgement by the putative second respondent that she has been validly served. As a consequence, we are satisfied that the first respondent's wife has not been validly served and is not a respondent to the proceedings. 4.Second, during the course of the hearing, an application was made by Mr Dai, solicitor on behalf of the second and third respondents (who have been served as they are now the owners of the property upon which the tree is located), to make a cross-claim against the first respondent should any orders be made that involve the payment of monies or the incurring of expenses by the second and third respondents, in satisfaction of any orders that might be made on the application in the substantive proceedings. 5.We granted leave during the course of the proceedings for that cross-claim to be made verbally as part of the proceedings. We also granted leave to the applicant to amend his claim for compensation to reflect a quotation dated 3 March 2011 (which claim he had foreshadowed in his original application), this comprising a quotation for the cost of works to his garage that are stated in that quotation, to be for repairs to damaged roof and flashing caused by falling tree branch and removal of debris . We are satisfied that, as that quotation has not been contested by any of the respondents, that that quotation stands. 6.We also note, in passing, that, during the course of the proceedings this afternoon, we rejected a document that purported to be a report by an arborist that had been filed by the applicant, because it was made after the date of the making of directions requiring the appropriate expert acknowledgement to be incorporated in the document as required by the Uniform Civil Procedure Rules 2005 and the Expert Witness Code of Conduct and that that document had not been so prepared. That document was therefore excluded. 7.We turn first to deal with the issue of the tree. We are put in the position where we have evidence, physically present, of a fallen branch that we are satisfied has come from the tree. It is presently resting in the south-eastern corner of the tree property, behind a small garden shed. It is unquestionably a branch that has come from the tree that is the subject of the proceedings - the tree being a Eucalyptus nicholii located approximately in the centre of the rear of the back garden of the property upon which it is situated. The branch, it is clear to us from examining its stub end, has not been cut from the tree, but has fallen from the tree as its departure from the tree trunk is best described as a rip, rather than as a neat severing. 8.It is Mr Cincotta's evidence that this branch is the branch that fell on the roof of his garage in early September 2010, and that that caused him to write a letter to the first respondent that set out his concern about the tree and requested - putting the first respondent on notice - that Mr Cincotta would claim for the cost of repairs, those repairs being the ones to which we have earlier adverted as the amended claim of 3 March 2011. 9.Mr Huang contests the fact that that branch could have fallen on Mr Cincotta's property and damaged his garage. He asks us to conclude that this is improbable, because of the size of the branch and the location of the tree. Faced with that submission, we have, first Mr Cincotta's uncontested evidence, that, as a matter of fact, the branch so fell and that he put it back over the fence, and, second, that it happened at a time of high wind. It is not improbable that that which is said by Mr Cincotta to have occurred, actually occurred, and as Mr Huang does not give evidence from personal observation, we are unable to accept his postulated version of events. 10.The consequence of all of that is, that we are satisfied that the first test in s 10(2)(a) of the Trees Act is satisfied, in that a branch from the tree has fallen and has caused damage to Mr Cincotta's property. We now must proceed to consider, in light of that finding, what orders, if any, we should make with respect to the tree. 11.We have carefully examined the tree and note that it contains a deal of dead wood. The dead wood is located in the perimeters of the canopy of the tree and is not confined to being in the perimeter adjacent to Mr Cincotta's boundary. However, the present owners of the tree express no concern to us concerning dead wood in the canopy of the tree that might fall on their property. We are thus left to deal with the question of whether or not we should require the undertaking of any interference with, or removal of the tree, based on the past damage and possible future damage to Mr Cincotta's property. 12.We have carefully examined the tree and consider that it is a typical specimen of that type of Eucalypt . It is likely that, on a continuing basis, parts of its canopy may die but that there is no basis, upon our present examination of the tree, to order its removal in its entirety. We are satisfied that there are three branches of considerable dimension that are dead and that are in the direction of Mr Cincotta's property. We consider it appropriate to order the removal of all three of those branches, at the point of attachment to the adjacent trunk and those have been marked by us digitally on the photograph that appear immediately below [as was foreshadowed would be done to the parties during the giving of this decision and the decision amended (as also foreshadowed at that time) to reflect the subsequent marking up of that photograph] and the photograph incorporated in the orders we propose to make. 13.The order that we propose with respect to the tree is, that each of these three branches should be removed at the point of attachment to the main trunk, that they should be removed by arborist with AQF level 3 qualifications and appropriate insurances; that they should be removed within 90 days of the date of these orders, that is of today; and that that work should be undertaken by the second and third respondents to the proceedings. 14.We also have considered the question of payment, both of past damage and for the costs of the works that we have just ordered. It is first convenient to turn to the question of the repair of damage to Mr Cincotta's garage. Mr Cincotta, we note had earlier claimed the sum of ~ $160 for damage to the fence between the properties, but has not provided any receipts or justification for that claim and that claim has been excluded from our consideration. 15.We do consider it is appropriate to order that Mr Cincotta be reimbursed for the repairs to the roof of his garage, to a maximum of $748, upon the presentation of a receipted order for works, demonstrating that the works have been undertaken and that they have been paid for. That reimbursement should be by payment to him by the responsible person, within 28 days of the date of service by him of such a receipted invoice on that person. 16.We note that as these are orders of the Court, if the person who is ordered to be responsible for such payment fails to do so, it is our understanding that it becomes a debt recoverable in proceedings in a Local Court if necessary. 17.We now turn the question as to who should make the payments for both the works to the tree and for the repairs to the property. We are of the view that, in each instance, that financial burden should fall on the first respondent. 18.We turn first to the question of damage to the garage. We are satisfied on Mr Cincotta's evidence that, since at least January of 2010, he has expressed his concern to the first respondent about the risk of damage to his property, occasioned by the tree. Whilst we have his oral evidence that he has given such warnings since a period considerably prior to January 2010, it is unnecessary for us to deal with the contest over whether or not that is correct or not; it is simply sufficient for us to note that, since at least January 2010, the first respondent has been on notice of Mr Cincotta's concerns relating to the risk of damage from the tree. 19.In September 2010, Mr Cincotta expressly wrote to the first respondent informing him of the damage and indicating that the claim would be made against him for that purpose. We are satisfied that there was proper, prior notice; that the first respondent took no steps to remove the dead wood from the tree, the dead wood subsequently fell and caused damage to Mr Cincotta's property, and as a consequence the first respondent should meet the costs of that. 20.The orders will therefore provide that the first respondent is to pay the applicant up to $748 for the cost of repairs to the damaged roof and flashing caused by falling tree branch, and the removal of debris within 28 days of being served with a receipted invoice for the completion of those works. 21.We now turn to the question of who should bear the costs for removal of the dead wood. We are satisfied again that this cost should be met by the first respondent. We consider that the material that is disclosed in the affidavits provided on behalf of the second and third respondents discloses expressly that the first respondent failed to disclose the possibility of a dispute existing between him and Mr Cincotta, despite being requested to doing so during the sale process. In particular, we note that in the reply by the first respondent's solicitor to requisitions that were made during the sale process, there is an express disavowal in the response given to requisitions 18 A and 18 D, that there is any dispute concerning a dividing fence with any neighbouring property. 22.The tree dispute application clearly makes it obvious that there is a dispute about damage caused by the tree to the fence. Although we have not ordered compensation, it is Mr Cincotta's uncontested evidence that the branch had fallen on the fence and displaced it. We are satisfied that that constitutes a dispute concerning damage to the fence, as contained in the tree dispute application [s 10(2)(a) of the Trees Act]. We also consider that, on the correspondence trail that is provided in the affidavits read in these proceedings on behalf of the second and third respondents, that there is one conclusion only to be drawn from the conduct of the first respondent in these proceedings, and that is to describe it as being "slippery" at best. 23.There was we also note, no responsibility or duty on behalf of the applicant in the tree dispute to provide information to, or notification of, the dispute to the incoming purchasers. We are satisfied that there is absolutely no reasonable basis upon which we could require the present owners of the property to meet the costs of the works that we require to be undertaken to the tree. As a consequence of that, the first respondent will be ordered to reimburse the second and third respondents within 28 days of the receipt of the service upon him of a receipted invoice for the removal of the branches that we have ordered be removed, by paying to the second and third respondents, the costs of those works. 24.As it was going to take us two or three days to provide the photographs and the orders to the parties [see (12) above], we indicated we would make the operative date of the orders one week from the date of the hearing, so that the periods of time being allowed for the removal of the branches which are we earlier noted, would run from that time. 25.Finally, it is appropriate to note that we will require that the repair work, to be undertaken to the applicant's garage, should be undertaken within a reasonable period of time, so that if the work subject of the claim to the garage is not undertaken within six months of the date of the orders in these proceedings, and the receipted invoice is not served on the first respondent within one month of the completion of those works - that is a maximum period of seven months from the date of the orders - the obligation on the first respondent to meet the costs of repairs to the applicant's garage will lapse. 26.The orders of the Court therefore are: 1.The application to remove the tree is dismissed; 2.The application for compensation of an amount of $162 for repairs to a fence is dismissed; 3.The second and third respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance to remove the three branches indicated by red bars on the photograph included in these orders as Annexure A; 4.These branches are to be removed to the point at which they arise from the relevant stem in accordance with AS4373:2007. 5.The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry ; 6.The work is to be completed by 14 July 2011; 7.The first respondent is to reimburse the second and third respondents the cost of the branch removal within 28 days of the service on him of a receipted tax invoice for the completed works; 8.The applicant is to engage a licensed roofer or builder to undertake the repairs to the roof and flashing of his garage; 9.The first respondent is to reimburse the applicant a maximum of $748 for the roof repairs within 28 days of service on him of a receipted tax invoice for the completed works; and 10.The roof repairs are to be completed and a receipted invoice for the completed works is to be served on the first respondent by 15 November 2011 otherwise order (9) lapses. Tim Moore Senior Commissioner Judy Fakes Commissioner of the Court