Maurici v Kaldor

Background

1. The Applicant is the registered proprietor of residential premises in Woolwich NSW. Mr Andrew Gabriel Kaldor and Mrs Renata Kuzena Kaldor (Respondents) are the registered proprietors of the neighbouring property, and occupants of land owned by Transport for New South Wales (Third Respondent) which is situated between the two relevant properties.
2. On 25 September 2023, Mr Maurici commenced proceedings under the Trees Act, seeking orders under Pt 2 and Pt 2A in respect of trees, of which there were 22, situated on the Respondents' properties which were alleged to cause damage, or likely to cause damage or injury to property.
3. Of the 22 trees, the trees that relate to this Motion were those identified as Trees T2-T5 which were Lilly Pilly trees located along the common boundary between the premises and adjacent to a timber paling dividing fence.
4. The Applicant's tree dispute application dated 25 September 2023 (Application) sought, inter alia: The 1st and 2nd Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor (all of which must be minimum AQF level 3) with appropriate insurances to carry out the following works within 60 days of the date of these orders: […] Remove Trees T2 to T5 […] Within 90 days of the date of these orders, the 1st and 2nd Respondents are at the Respondent's cost to engage a suitably qualified fencing contractor with appropriate insurances to replace that part of the boundary paling fence damaged by Trees T2 to T5 for a distance of a minimum of 12m and taken to the nearest upright fence post with the same materials and to the same height as existing along the common boundary.
5. The matter was heard by the Commissioner on 21 and 22 February 2024.
6. On 22 May 2024, the Commissioner handed down judgment in Maurici No 1, setting out the Court's preliminary findings in respect of the trees the subject of the Application.
7. On 11 June 2024, the Commissioner handed down Maurici No 2, setting out the Court's orders.
8. The order the subject of the Motion is Order 3 of Maurici No 2, which provides: Within 90 days of the date of these orders, the First and Second Respondents are to engage, and arrange payment for, a suitably qualified fencing contractor with appropriate insurances to replace that part of the boundary paling fence damaged by, or likely to be damaged by Trees T2-T5, extending from the northern corner of the existing garage at No 64 The Point Road, for a distance of 12m north of the garage, to the nearest upright fence post, with the same materials and to the same height as existing along the common boundary. (emphasis added)
9. The Applicant contends that Order 3 is deficient in the manner in which it is to be carried out and that it is necessary that there be a further order that makes provision for the working out of Order 3. Specifically, the Applicant contends that the fence cannot be replaced without the removal of some or all of Trees T2-T5 and therefore an order should be made providing for the removal of some or all of Trees T2-T5, if it is the case that the replacement of the fence cannot occur without the removal of the trees.
10. The Respondents have undertaken works in connection with the fence and Trees T2-T5 purportedly in conformity with the orders of the Commissioner. Such works are in part illustrated in the image below which is that part of the fence replaced in the location of Tree T3:
11. The Applicant is not satisfied that such works are in conformity with the Court's orders.

Applicant's submissions

1. The Applicant accepted that there was a general principle concerning the finality of Court orders, as expressed by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court.
2. The Applicant relied upon the exception to that general principle that permitted, in respect of an otherwise final order, the making of a further provision for the working out of the orders as made. The exception to the general principle being stated in Phillips v Walsh (1990) 20 NSWLR 206 per McLelland J at 208-9 (Phillips) as: The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision. One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order: see generally Haviland v McLeary (1894) 15 LR (NSW)(Eq) 2210 WN (NSW) 146; Poisson & Woods v Robertson & Turvey (1902) 86 LT 30250 WR 26046 Sol Jo 196; Dowdle v Hillier (1949) 66 WN (NSW) 155; Re Porteous [1949] VLR 383 [1950] ALR 89; Cristel v Cristel [1951] 2 KB 725 and Re Scott (1964) 82 WN(Pt 1) (NSW) 313[1964-5] NSWR 1636. In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order; but the absence of an express reservation of liberty to apply does not preclude such an application: see Penrice v Williams (1883) 23 Ch D 353; Light v William West & Sons Ltd [1926] 2 KB 238; Chandless-Chandless v Nicholson [1942] 2 KB 321; Re Porteous (at 385; 91).
3. The Court of Appeal in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 (Australian Hardboards) per Campbell JA at [49] stated: When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, "working out the order". (Citations omitted). The manner of invoking liberty to apply is by a substantive motion on notice. (Citations omitted).
4. Whilst, as in this case, an express reservation of liberty to apply for such an application was absent, that absence was held not to preclude such an application: see Phillips at 209.
5. The Applicant further accepted that the working out exception did not permit applications which would provide for relief that departs from either that which was originally sought in the originating application or the orders the subject of the working out application themselves: see Phillips at 209 and Australian Hardboards at [52]. Nor does such an application permit review or reconsideration of the orders in question: see Rosser v Maritime Services Board of New South Wales (No 2) (1996) 14 BCL 375 at 382.
6. The Applicant identified that such working out orders had been made in the Land and Environment Court proceedings, including matters under the Trees Act: see Urquhart v Hayman (No 2) [2012] NSWLEC 269 per Sheahan J.
7. The Applicant further accepted that in order to consider whether to make a working out order recourse could be had to the reasons for judgment, as was provided in Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 where Barrett JA said at [245] (with the concurrence of Beazley P at [1]): It is generally permissible to have regard to the context and, in particular, the reasons for judgment when determining the meaning and effect of a court order: Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58.
8. It was submitted that the key issue in respect of which the Motion seeks a working out order is the extent to which Order 3 requires Trees T2-T5 to be removed or pruned.
9. The Applicant submitted that the working out order proposed in the Motion was necessary as Trees T2-T5 grow through and over the timber paling dividing fence such that they straddle the common boundary between the two properties. In order to replace the fence "along the common boundary" as required by Order 3, some or all of Trees T2-T5 will need to be removed or their trunks (particularly that of T3) will need to be significantly pruned, so as to allow the new fence to be installed in the same location as the existing fence along the common boundary.
10. The Applicant contended that the Commissioner made orders in respect of the pruning of Trees T2-T5 in Order 2(a) as follows: (2) Pruning is to be undertaken by the First and Second Respondents in the following terms: (a) Trees T2-T5 are to be pruned in height to RL 15.95, being the approximate level of the balustrade surrounding the Juliet balcony on No 66 The Point Road, from which overlooking to the First and Second Respondents' ground floor bedroom is obtained, and pruned so that the overhang to No 66 The Point Road, Woolwich is substantially removed without placing the health of the trees at risk. (emphasis added) The qualification in that order relating to the extent of the pruning was not repeated in Order 3. Therefore, there is nothing in context or the reasons for judgment to suggest that compliance with Order 3 is subject to the same limitation as expressly embodied in Order 2(a). It contended that Order 3 is explicit: it requires replacement of the boundary fence. To the extent that the trees need to pruned or removed to enable that to occur, that is what Order 3 requires.
11. For those reasons, interpreting the orders by reference to the situation at the relevant properties, which was materially the same when the Court's judgments were delivered, Order 3 requires Trees T2-T5 to be pruned or removed to the extent necessary to replace the boundary fence in its current location. A working out order in those terms as sought in the Motion should be made for the purpose of implementing and giving effect to Order 3 as already made.

Respondents' submissions

1. The Respondents did not contend that there was no jurisdiction of the Court to make a working out order.
2. The Respondents contended that there was no necessity to make such an order. It contended that the works they had undertaken were consistent with the orders made in Maurici No 2 and therefore there was nothing left to work out.
3. The Respondents also contended that the effect of the Motion was tantamount to an appeal against the orders made by the Commissioner and were therefore not properly working out orders: see Rosser v Maritime Services Board of New South Wales (No 2) (1996) 14 BCL 375.
4. The Respondents also contended that the order as sought in the Motion was in effect providing substantive relief different from that provided in the orders of the Commissioner.

Findings

1. The primary submission upon which the Applicant relies is that the working out order is necessary as there is potentially some inconsistency between the pruning order as provided in Order 2(a) and the fencing order in Order 3. It is contended that the two orders operate independently and therefore inconsistently. I do not accept this submission. As is made apparent by the judgment of the Commissioner, to which I am entitled to have recourse in determining what was intended in the order, the orders for pruning and fencing (amongst the other orders made) were intended to operate collectively with respect to pruning and the replacement fencing. As was stated by the Commissioner in his findings with respect to Trees T2-T5 at [207] of Maurici No 1: I find that a regime of pruning and maintenance, combined with the removal and reinstatement of a paling fence identical in height and manufacture to that in place today is an appropriate course of action. The Applicant's landscape planting to this boundary remains immature and may, in time, form its own screening to this boundary, which is considered a benefit, should that eventuate.
2. The necessity for the qualification on the extent of pruning as referred to in Order 2(a) is reflected in the qualification identified at [210] of Maurici No 1: In saying this, I also note Mr Gatenby's evidence at par 4.4.3 of his report that cutting the trunks of T2 and T3 at the boundary would remove 95% of those trees and is not recommend on arboricultural, screening or aesthetic grounds.
3. The Commissioner further found, in connection with his consideration of the relevant consideration under s 12 of the Trees Act at [250(1)-(3)] and at [251] of Maurici No 1 that: 250 Section 12 of the Trees Act requires the Court to consider certain matters before determining an application in respect of damage or injury. I have considered those matters in the following terms: (1) Trees T2 and T3, being mature Lilly Pilly's, either press against or are likely to press against the fence on the common boundary in the near future, given growth expected if left unchecked. I do not understand there to be anything other than T2 and T3 to have caused the damage, including the ivy climber that may have existed in the past. (subs 12(h)). That said, I note the potential for growth in T4 and T5 that are likely, if not attended to, to cause damage to the fence in the future. (2) Lilly Pilly's are known to take well to pruning, and so I consider the impact of any pruning, being a matter to be considered at s 12(b2) would not pose a risk to the health or longevity of T2, T3, or T4 for that matter. (3) Trees T2 and T3 provide privacy between the properties, and contribute to the garden design and landscaping appropriate to a side setback in an urban setting, being matters at s 12(b3). 251 Having considered those matters at s 12 of the Trees Act, I have formed the view that when the contribution of T2-T5 to privacy, landscape and garden design are taken in to account, and the role of trees and vegetation is understood in terms of the scenic value of the River Front Area, the damage caused by these trees, and the likely damage in the future, can be addressed by pruning and the replacement of the existing fence in the vicinity of T2-T5.
4. These findings are to be considered in the context of the dispute that the Commissioner was asked to determine, namely whether Trees T2-T5 should be removed. He found that removal was inappropriate. To now, as is sought in the Motion, seek an order that all or some of Trees T2-T5 be potentially removed as part of a working out of the operation of Order 3 is to seek to give substantive relief which is substantially different to that which was determined with respect to that issue in the judgment and formulated in the orders of the Court. Such an effect is not permitted in the context of the provision of a working out order and is contrary to the principle of finality of the orders as made.
5. Accordingly, I find that the order sought in the Motion is beyond the power to make a working out order and should be refused.
6. As to the dispute between the parties as to whether the works undertaken necessarily comply with the orders as made by the Court, such a dispute is beyond the scope of the Motion. In circumstances where orders are made and the consequence of failing to comply with such orders have potential serious consequences it would be inappropriate for me to traverse such matters in the context of a Motion of the kind before me.
7. It was also canvassed in the course of the hearing of the Motion whether an alternative order should be made, which in effect imported into Order 3 the qualification on the extent of pruning referred to in Order 2(a). In light of the findings above, I do not consider that formulating such an alternative order is necessary or desirable in the circumstances of this case.

Costs

1. Both parties agreed that costs of the Motion should follow the event. As I have found that the Motion should be dismissed the Applicant will be ordered to pay the Respondents' costs of the Motion.

Orders

1. The Court orders that: 1. The Notice of Motion filed on 6 August 2024 is dismissed; 2. The Applicant is to pay the Respondents' costs of the Motion; and 3. The exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2024