Ernie Velonas v Koustov Mukherjee

Category: Procedural rulings

Parties: Applicants:
Koustov Mukherjee (first applicant on the notice of motion) (first respondent)
Shikha Mukherjee (second applicant on the notice of motion) (second respondent)
Respondent:
Ernie Velonas (respondent on the notice of motion) (applicant)
Interested party:
Essentia Community Association for DP 271142

Representation: Applicants:
Rahul Mukherjee (as Agent)
Respondent:
Self-represented
Interested party:
Mr Tiliakos (as representative)

File Number(s): 2026/00070197

Publication restriction: Nil

JUDGMENT

1. These proceedings were commenced on 19 February 2026 by the applicant, Mr Ernie Velonas, by a Class 2 tree dispute application filed pursuant to Part 2 of the Trees (Disputes between Neighbours) Act 2006 (NSW). Mr Velonas seeks the removal of a Golden Robinia tree at the front of the neighbouring property of the respondents to the proceedings, Mr Koustov Mukherjee and Mrs Shikha Mukherjee.

2. The Class 2 application provides in relation to “Proposed orders for Part 2: Applications – Damage to Property or Risk of Injury” as follows:

1. Risk of damaging Footpath (Breaking of Pavers, Edgin and Concrete including services

2. Risk of Damaging Driveway, Cracking of Concrete as shoots have appeared on the other side of the Driveway.

3. Risk of damaging Home structure as shoots have appear 4cm from garage wall and this particular tree has a very aggressive root system.

3. The Class 2 application was accompanied by a Form H Tree Dispute Claim Details (Damage to Property or Injury to a Person) in which Mr Velonas says that shoots from the Golden Robinia “have appeared on the other side of our footpath. So they have trailed under the neighbours driveway and under our footpath and shoots have appeared”. He says that “Studies show Trimming only aggravates Robinia Roots to grow” and that “The choice of this tree (Robinia) was the wrong choice of tree for this setup. This includes so close to the owners own footpath and driveway”. Further, that “They can keep the tree if the install a root barrier between the 2 properties with 100% guarantee I will never have issues”.

4. Mr Mukherjee and Mrs Mukherjee are the owners of 19 Pasquale Avenue, Bella Vista NSW 2153, which is part of a community management scheme, Essentia Community Association for DP 271142 (Essentia), and subject to the by-laws of Essentia.

5. Mr Velonas is the owner of the neighbouring property, 17 Pasquale Avenue, Bella Vista NSW 2153. Mr Velonas’ property is also part of the community management scheme and subject to the by-laws of Essentia.

6. On 8 April 2026, Mr Mukherjee and Mrs Mukherjee filed a notice of motion seeking to join Essentia as third respondent to the proceedings. In support of the notice of motion, they filed an affidavit of their agent, Mr Rahul Mukherjee, affirmed 7 April 2026.

7. The proceedings are presently fixed for an on-site hearing before Acting Commissioner Galwey on 15 April 2026 at 19 Pasquale Avenue, Bella Vista NSW 2153.

8. The applicants on the notice of motion, Mr Mukherjee and Mrs Mukherjee, seek the following orders:

1. Pursuant to rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Essentia Community Association for DP 271142 be joined as an additional respondent to these proceedings.

2. The applicant file and serve an amended Tree Dispute Application (Form C) naming the Community Association as an additional respondent.

3. The on-site hearing listed for 15 April 2026 proceed as scheduled, with all questions of costs, responsibility for works, and any indemnity to be determined at that hearing.

4. The Community Association file and serve any evidence upon which it intends to rely by 4:00pm on 10 April 2026.

5. Costs of the motion be reserved.

9. The notice of motion was listed for hearing before me this morning as duty judge.

10. Yesterday, Thursday, 9 April 2026, my chambers sent an email to the solicitors for Essentia confirming that the notice of motion seeking joinder would be heard at 10 am today, Friday, 10 April 2026. Essentia requested to attend remotely by audio visual link. At the hearing this morning, Mr Velonas and Essentia’s representative Mr Tiliakos both appeared by AVL.

Grounds in the notice of motion

11. In the notice of motion filed on 8 April 2026, the applicants, Mr and Mrs Mukherjee, set out grounds for seeking the orders, including that:

12. Essentia “has sole maintenance responsibility for the subject tree under By-Law 1.6.2 of the Community Management Statement for DP 271142, which provides: ‘The Community Association shall be responsible for the maintenance of the landscaping, excluding replacement of dead plants, on the frontages of all lots from the front boundary to the building line of the dwelling.’” Mr and Mrs Mukherjee say that the subject tree “falls squarely within this scope”.

13. They cannot undertake works on the subject tree without: (1) consent of Essentia under by-law 1.1(i) which requires any planting “visible outside the lot” to be “consistent in style and species of planting installed by the Developer”; and (ii) the approval of the Hills Shire Council “which has confirmed that the tree is protected under local planning controls and the approval is not given for tree removal to address minor driveway lifting. The Community Association’s consent is therefore necessary for any works the Court may order”.

14. Essentia exercises “practical control over frontage landscaping, including engaging gardeners, controlling what may be planted through an approved planting list, and approving tree removals – as confirmed by the strata manager (Jamesons) on 16 March 2026.”

15. Essentia’s “Capital Works Fund Plan (adopted 30 January 2024) expressly identifies root systems as maintenance items, stating that ‘Root systems should also be kept away from buildings, driveways and walkways to prevent structural damage. Removal of trees may be required in some cases’.”

16. Any order against the respondents, Mr and Mrs Mukherjee, alone would be unenforceable: “the Respondents cannot comply without the Community Association’s consent, and the Community Association retains the power to refuse, leaving the applicant without an effective remedy and the Respondents in breach through no fault of their own”.

17. Essentia is a “necessary party to enable the Court to adjudicate on and settle all questions involved in the proceedings pursuant to rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW).” They say that joinder will avoid a multiplicity of proceedings: “without it, the Respondents would be required to bring separate proceedings in NCAT or elsewhere for indemnity and contribution, contrary to the overriding purpose of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Ownership of the tree is not the test for joinder; the relevant question is whether the Community Association’s presence is necessary to ensure the Court can make effective orders”.

18. Essentia has been on notice of the respondents’ intention to seek joinder since 14 March 2026 and detailed submissions were exchanged. Joinder was formally sought at the directions hearing on 31 March 2026.

Affidavit of Mr Rahul Mukherjee sworn 7 April 2026

12. In his affidavit sworn 7 April 2026, Mr Rahul Mukherjee says that ownership of the tree is not the test for joinder. He says that:

a. Rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) asks whether the Community Association is a necessary party to enable the Court to settle all questions in the proceedings.

b. The Community Association has maintenance responsibility under By-Law 1.6.2, regardless of whether it owns the tree.

c. The indemnity sought is ancillary to any order the Court may make. It does not require separate jurisdiction.

d. Without joinder, there would be separate proceedings and the risk of inconsistent findings.

e. Joinder enables all issues to be determined in a single proceeding, consistent with the overriding purpose of the Civil Procedure Act 2005 (NSW).

f. Even if the Community Association consents to works, that does not determine who pays for them. Joinder is needed to resolve that question.

g. The Community Association's own Capital Works Fund Plan treats trees and root systems as maintenance items.

13. The annexures to the affidavit of Mr Rahul Mukherjee include an email to Mrs Mukherjee from Mr David Ciappara dated 31 March 2026 confirming that “I have been doing work at your property on and off now for approximately 4 years and to date have not seen any shoots coming out of the golden robinia tree that you have in your front yard nor do I see any damage at all to your driveway.”

Position of the c****ommunity association**, Essentia**

14. In previous correspondence, Essentia’s solicitors Monti Lawyers have indicated that they do not consent to being joined to the proceedings, and submit that there is no proper basis for its joinder. Essentia’s position is that the Trees (Disputes between Neighbours) Act 2006 (NSW) does not confer power on the Court to make orders against it as it is not the owner of the tree or the land on which the tree is situated and is not the owner of the land said to be affected.

15. On 27 March 2026, Monti Lawyers, acting for Essentia, wrote a letter to the applicants setting out Essentia’s position in relation to the proper construction of By-Law 1.6.2 of the Community Management Statement (CMS) as follows:

That provision, properly construed:

• imposes a limited obligation on the Community Association for the maintenance of landscaping on lot frontages;

• does not extend to removal or replacement of trees, which is expressly excluded; and

• does not allocate or transfer legal liability to the Community Association for any damage caused by trees located on lot property.

The CMS contains no provision that:

• transfers ownership of trees from lot owners to the Community Association; or

• requires the Community Association to indemnify or assume liability for claims arising from trees on lot land.

16. Further, Monti Lawyers say that there is no definition of “landscaping” or “maintenance” in the CMS and any maintenance obligation is not supported by the text. They say that if the interpretation or effect of By-Law 1.6.2 is in dispute, that it is a separate issue regarding contractual or governance responsibilities. It is not part of this statutory tree dispute which is directed at:

• whether the tree is causing or is likely to cause damage; and

• what orders (if any) should be made in relation to the tree.

17. In a letter to the Registrar dated 30 March 2026, Monti Lawyers say that if the Mukherjees seek to pursue joinder, Essentia will seek directions to the effect that:

1. Any application for joinder be made by formal Notice of Motion;

2. The application be supported by affidavit evidence setting out the factual and legal basis for joinder;

3. The moving party provide clear particulars of the case advanced against the Community Association;

4. The Community Association be given an opportunity to file evidence and submissions in response; and

5. The question of joinder be determined separately following completion of those steps. A short outline of the proposed directions is attached.

18. The application for joinder has now been made by notice of motion, supported by an affidavit of Mr Rahul Mukherjee, the Mukherjees’ agent.

The submissions of the parties and Essentia in relation to joinder

19. At the hearing this morning, the Mukherjees’ agent Mr Rahul Mukherjee made submissions which were largely the same as the grounds contained in the notice of motion and Mr Rahul Mukherjee’s affidavit sworn 7 April 2026. These, in summary, were that:

20. Essentia has sole responsibility for the subject tree pursuant to by-law 1.6.2;

21. Essentia exercises practical control over frontage landscaping, and their own Capital Works Fund Plan identifies root systems as maintenance items;

22. the respondents cannot undertake works removing the tree without Essentia’s consent pursuant to by-law 1.1(i), such that Essentia has an “effective veto” over any works the Court may order and so any order the Court makes without joinder would be unenforceable;

23. Essentia is a necessary party under r 6.24 to enable the Court to adjudicate all questions, and avoids a multiplicity of proceedings by removing the need for the respondents to bring separate NCAT proceedings against Essentia for indemnity and contribution; and

24. Essentia has been on notice since 14 March 2026.

25. Mr Rahul Mukherjee accepted, however, that if the community association Essentia were to be joined, it would require additional time in order to prepare evidence and submissions, and that if the “practical reality” was that the hearing date of 15 April 2026 was to be vacated, the Mukherjees accepted that it would be appropriate for Essentia to be given two weeks to prepare for the hearing of the Class 2 application.

26. Mr Velonas opposed the joinder of Essentia, saying that he had been asking the applicants to remove the tree for the past five years, and that he informed the applicants at an early point that the tree would become a problem and had offered to remove the tree himself before it could become a problem. He did not understand why “the community” should be part of the proceedings, as it was something which could be resolved between him and the applicants, and he would remove the tree himself and so “would do most of the labour anyway”. However, he said that he was not legally qualified and so was content with whatever orders the Court makes. If Essentia were to be joined, he was agreeable to a vacation of the hearing set down to commence next Wednesday to allow for a period of approximately two weeks for Essentia to prepare for the hearing.

27. Mr Tiliakos, Essentia’s representative, also opposed the joinder of Essentia. He said that “his instructions” were that the tree was not on community association land. However, he accepted that he was not familiar with the by-laws of Essentia upon which the Mukherjees relied in relation to their application to join Essentia as third respondent, and that whether the tree was on community association land was a factual issue that could be addressed at final hearing. He also said that this was a “misconceived application as it relates to the association”, and there were other mechanisms including commencing proceedings in the NSW Civil and Administrative Tribunal (NCAT). He further said that the application to join Essentia was “made at the 11th hour”, but that Essentia would not suffer “insurmountable prejudice” if joined. If Essentia were joined, he would seek an adjournment of the hearing for approximately two weeks in order for Essentia to prepare for the hearing.

Test for joinder: r****ule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW)

23. In relation to joinder, rule 6.24 of the UCPR provides:

6.24 Court may join party if joinder proper or necessary (cf SCR Part 8, rule 8(1); DCR Part 7, rule 8(1); LCR Part 6, rule 8(1))

(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

(2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.

24. In Ross v Lane Cove Council (2014) 199 LGERA 298; [2014] NSWCA 50, Leeming JA (Meagher JA and Tobias AJA agreeing) said as follows in relation to the test for joinder in r 6.24 (at [51] to [55]):

51 It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.

52 In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Company Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between “legal” and “commercial” interests. His Lordship said at 56:

A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?

53 That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 2 ASTLR 553 (John Alexander's Clubs) at [131], a unanimous High Court said:

Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.

54 Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. In the Superleague case, their Honours said at 526:

In our opinion, the notice given to the players before trial does not, and could not, extend the jurisdiction of the Court to make orders which offend the test stated in Pegang Mining. Absent an application for joinder by a defendant, or by a third party who claims to be directly affected by the proposed orders, it is for the party prosecuting the proceedings to choose who are the necessary parties to enable the Court to make the orders sought. Generally speaking, to permit [the party prosecuting the proceedings] to transfer to others who might be affected by the outcome of the proceedings the responsibility of deciding whether or not they should apply to be joined could be productive of uncertainty and inconvenience. At times, it could lead to the need to halt expensive litigation part-way through, because a third party insufficiently understood the proceedings, or, through impecuniosity or some other reason, was not adequately advised.

(Emphasis added)

55 In John Alexander's Clubs the last two sentences of that passage were reproduced, and endorsed by the High Court in these terms at [140]:

News Ltd v Australian Rugby Football League Ltd was a case where players who had not been joined in the proceedings but only informed of them were not debarred from attacking the orders made. There is no doubt that Walker Corporation was aware of the first proceedings, and it informed the Court of Appeal of that fact. Walker Corporation said there was a reasonable explanation for its delay in seeking to be joined. Whether or not that is so, it had no duty to seek to be joined, and its delay does not in this case call for explanation.

Outcome

25. The facts are far removed from those in the Superleague Case. However, I am satisfied that the joinder of the community association Essentia is necessary to the determination of all matters in dispute in the proceedings within the meaning of rule 6.24 of the UCPR. I was not addressed in any detail of the by-laws of the community association. However, it seems to me that there is a reasonable argument that Essentia has responsibility for the subject Golden Robinia tree pursuant to by-law 1.6.2, and that the Mukherjees cannot undertake works to remove the tree without Essentia’s consent pursuant to by-law 1.1(1). The joinder of Essentia will enable the Court, in the substantive Class 2 application, to adjudicate all questions and avoid the potentiality of a multiplicity of proceedings, including in NCAT.

Orders

26. Accordingly, I make the following orders:

27. Pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW), Essentia Community Association for DP 271142 be joined as third respondent to the proceedings.

28. The on-site hearing listed for Wednesday, 15 April 2026 is vacated.

29. The matter is fixed for on-site hearing on Friday, 15 May 2026 commencing at 9:30am at 19 Pasquale Avenue, Bella Vista NSW 2153.

30. The applicant is to file and serve an amended Tree Dispute Application (Form C) naming Essentia Community Association for DP 271142 as the third respondent.

31. A Notice of Appearance [Form 6A] is to be filed with the Court, and a copy given to the other parties, by 4:30pm on 15 April 2026 by Essentia Community Association for DP 271142.

32. The applicant is to serve a copy of these orders on the respondents and on The Hills Shire Council by 4:30pm on 15 April 2026.

33. The applicant is to file any further statements, reports, affidavits, photographs or any other documents, and any expert evidence upon which he intends to rely at the hearing with the Court and to serve a copy on the respondents and The Hills Shire Council by 4.30pm on 16 April 2026.

34. The respondents are to file any statements, reports, affidavits, photographs or any other documents and any expert evidence upon which they intend to rely at the hearing with the Court and to serve a copy on the other parties and The Hills Shire Council by 4:30pm on 16 April 2026*.*

35. The respondents are to file any orders pursuant to s 9 and/or s14D of the Trees (Disputes Between Neighbours) Act 2006 or pursuant to s 13A of the Dividing Fences Act 1991 which they propose as an alternative to or in addition to the orders sought by the applicant with the Court and to serve a copy on the other parties and The Hills Shire Council, by 4:30pm on 16 April 2026. If any of the respondents wishes to retain the tree, their proposed orders should include any solution to prevent the tree causing damage to the applicant's property, including any engineering or construction solution, which would enable the tree to be retained.

36. The Hills Shire Council is to file any statements, reports, affidavits, photographs or any other documents upon which it intends to rely at the hearing with the Court and to serve copies of any such documents on the other parties by 4:30pm on 16 April 2026.

37. The parties are to permit access to their property by the other party, and by the legal representatives and expert advisors of the other party or the Hills Shire Council, provided that access is on reasonable notice (given to the party's legal representative or, if the party does not have a legal representative, direct to the party) and at a reasonable time. The parties are permitted to supervise any such access.

38. If a party or the Hills Shire Council requires any expert or any other witness for cross-examination, notice is to be given at least 5 working days before the final hearing.

39. Each party has liberty to re-list the matter before the Court on two days' notice to the other party, the Court and the Hills Shire Council.

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