Turnbull v Fleet

Yang v Scerri [2007]NSWLEC 592 CASES CITED: Nair v Edwards [2006] NSWSC 1310 Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Mr J. and Mrs R. Turnbull, litigants in person LEGAL REPRESENTATIVES:

RESPONDENT Mr C. and Mrs H. Fleet, litigants in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT The decision was reserved at the end of the hearing on 22 October 2008. The judgment is based on the documentation provided by the parties prior to the hearing, statements of the parties at the hearing, my observations at the hearing, my notes made at the hearing, my tape recording of preliminary findings made later on the day of the hearing, and information from aerial photographs on the NSW Department of Lands website. 1 ACTING COMMISSIONER: Mr and Mrs Turnbull live in Barnsley, a village located west of Newcastle near the Freeway. The village is surrounded by bush and rural land with high voltage electricity wires on steel towers being a dominant feature of the wider landscape. The Turnbulls' property at 35 Nelson Street is a block of more than 2,000 square metres, similar in size to others in the street. There is an electricity easement with wires and a tower between the Turnbulls' property and the bushland to their north

2 The Turnbulls' bought their property eight years ago. The major structures on the property were built prior to that time and include a house located towards the southern, street frontage, two very large garages in the backyard, and a concrete driveway of about 75 m length on the western side of the property. The western house wall is about 3.4 m from the common boundary with 33 Nelson Street, the adjoining property to the west. The concrete driveway separates the house from a narrow garden bed and the boundary fence. The property slopes down to the street.

3 Mr and Mrs Fleet live at 33 Nelson Street, having purchased the property 17 years ago. Their property has many trees with extensive tree canopy cover, similar to about one third of the 40 or so properties on the northern side of Nelson Street. The trees that are the subject of this application are growing along the Fleets' eastern fence line, and overhang the Turnbulls' property. The trees were planted by a previous owner.

4 The Turnbulls' stormwater pipe under the driveway became blocked beside the house by roots, twigs and leaves in January 2001, and was cleared by Mr Hinds, a plumber,. It became blocked again in April 2002 and to clear it, Mr Turnbull removed a root of about 30 mm diameter that had grown through a joint in the pipe. He repaired the pipe and it has not blocked since.

5 The Turnbulls' solicitors sent the Fleets a letter dated 10 May 2002 regarding the trees. The Fleets' written response to that letter stated that no concerns for safety or property had been substantiated, and they requested that the Turnbulls only return leaves and tree debris from the Fleets' trees to the Fleets' property, as they considered the Turnbulls had been dumping tree debris and other materials regardless of origin, onto the Fleets' property and nature strip.

6 The Fleets had the trees on their property along the common boundary inspected by Mr Hill of Australian Tree Care Services, on 31 May 2002. The Fleets also stated in their letter previously referred to that neither Mr Khemananta (Tree Assessment Officer of Lake Macquarie City Council) nor Mr Hill 'identified any tree or limb that are exhibiting any sign or indication that would cause concern for safety to person or property or that would indicate insect or disease activity.' Mr Hill's report recommended pruning to reduce overhang of the Turnbulls' property, and his report was the basis of consent from Lake Macquarie City Council dated 27 June 2002 to prune the trees. That pruning was carried out by the Fleets at their expense.

7 The hearing was held on a windy, wet and cold day. There were no trees growing on the Turnbulls' property at the time of the hearing. However the parties agreed, and a review of aerial photographs and reports confirmed that there had been two large trees growing in the Turnbulls' backyard previously. One of those trees was a Spotted Gum with trunk diameter of about 0.3 m growing between their driveway and the common boundary fence about two thirds of the distance up the block. It was removed with Council consent in 2005. The other was a very large Spotted Gum, described by the Fleets as one of the largest trees in the area, growing just north of the garage nearest the house. That tree had a canopy spread of about 16 m with two trunks and diameter of about 0.7 m near the ground. That tree blew down in the storms of June 2007.

8 The Turnbulls make this application with respect to five trees growing on the Fleet's property at 33 Nelson Street, Barnsley. The trees are growing in a narrow garden between the Fleets' driveway and the boundary fence, and are located between the front boundary and just beyond the rear alignment of the Turnbulls' house. They claim the trees present a risk of injury to people. They also make the application to rectify or prevent property damage, and to claim compensation of $121.00 for the cost of jet cleaning a stormwater pipe in December 2004.

9 The parties agree that the largest branch dropped by any of the trees since the Turnbulls moved into 35 Nelson Street, was about 75 - 100 mm diameter and 2.5 - 3.0 m long. That was a live branch that dropped from the tree nearest the street in windy weather eight years ago. The next largest branch was about 30 mm diameter and 2 m long, which fell from the same tree in very windy weather in August this year. Twigs and small branches 6 - 20 mm diameter and 1 - 1.5 m long, and leaves and seed capsules have fallen from the trees over the last eight years.

10 There is a history of dispute between the parties, with the Turnbulls seeming to focus their concern on the Fleets' trees as the source of their problems. The Turnbulls seek orders for complete removal of all the trees.

11 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

12 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

13 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

The Turnbulls' claims 14 Mr and Mrs Turnbull made the following claims in their written submissions or at the hearing: o The trees overhang the main access to their house; o In calm weather the trees drop limbs and branches without notice and hence the risk of these hitting someone is always present; o In windy weather there is a constant shower of leaves, twigs and branches falling onto their access path. These branches range in size from small to quite large. Any person walking up their driveway is in danger of being hit by these; o There is a constant flow of leaves, branches and twigs falling onto their roof. Apart from the dents and staining to the roof, they have skylights that are at risk of being smashed; o The leaves and twigs block gutters, downpipes and stormwater drains which causes water to backup and leads to the flooding of their veranda, laundry and family room; o The boundary fence is being pushed over and this is causing the gate they have installed to keep their dog in, to need constant realigning; o The driveway, back veranda which they have repaired, and a garden retaining wall have all been cracked and are still cracking; o They have had the stormwater drains jet cleaned on three occasions to remove roots and leaves, at their expense; o They have added leaf collectors to downpipes at their expense; o They had the back veranda professionally repaired; o Over the eight years they have cleaned the house gutters 37 times and removed 86 containers of leaves and sticks, each 25 litres in volume, and have requested an additional garbage bin to assist with removal of that litter; o They have applied to Lake Macquarie City Council on three occasions for the removal or trimming of the trees, and have spoken to the Council on numerous occasions.

The Fleets' response 15 Mr and Mrs Fleet made the following claims in their written submission or at the hearing: o Branches of any significant size have only fallen from the tree nearest the street, few branches have fallen, only in windy weather, the branches have been live, and none have caused damage or injury; o Much of the leaves and twigs on the Turnbulls' property originated from their own trees prior to removal of one tree in 2005 and collapse of the other in 2007; o The large size of their properties, and common heavy rainfall is the main cause of stormwater drainage problems, made worse in the past by additional flow into the Turnbulls' property from a drain on the electricity easement to their north; o The properties are on clay soil, and cracking of the Turnbulls' back veranda that is a concrete slab on ground is likely to be caused by clay expansion and shrinkage associated with drainage problems, not tree roots; o The Turnbulls' driveway was heavily compacted by cars and trucks for many years before it was concreted, so it is unlikely that the Fleets' trees would have roots under it; o The dividing fence is fully within the Fleets' property; o They had the trees professionally inspected in 2002, and the trees were found to be healthy and safe; o They had the trees pruned in 2002 at their expense to reduce overhang of the Turnbulls' property; o They do not want the trees to be removed; o They are willing to prune off the eastern trunk of the first tree, at their expense; o They are willing to repair the fence beside the fourth tree, at their expense. The trees 16 The five trees, listed from the front of the block are: 1. Smooth-bark gum, possibly a Lemon Scented Gum ( Corymbia citriodora ); 2. Rough bark Eucalypt; 3. Smooth-bark gum, probably a Spotted Gum ( Corymbia maculata ); 4. Rough bark Eucalypt; 5. Smooth-bark gum, probably Spotted Gum ( Corymbia maculata ).

17 The trees appear to be healthy and stable in the ground. The day of the hearing was wet and windy, but none of the trees had socketing of the trunks in the soil or lifting of root plates that would have indicated instability. The Fleets say the trees were about the same height but approximately half to five-eights of the present bulk when they purchased 17 years ago. The Turnbulls say the trees have grown taller since they purchased eight years ago, possibly doubling in height.

Findings Tree 1 18 The first tree has dropped some live branches in windy or very windy conditions. There is no claim that it has dropped large dead branches and there are no dead branches visible in the canopy. The largest branch that has fallen was 90 -100 mm diameter and 3 - 4 m long. It fell in very windy conditions prior to the Turnbulls' purchase of 35 Nelson Street. The next largest fallen branch was 75 -100 mm diameter and 2.5 - 3 m long. It fell about eight years ago, in August when conditions were probably windy. Smaller branches 15-20 mm diameter and 1 m long often fall. The latest live branch fall was in very windy conditions on 9 August 2008. That branch was about 30 mm diameter and 2 m long. None of the falling branches caused any damage, and the tree is not now causing any damage. Therefore this tree does not meet the first two tests in s 10(2)(a) of the Act.

19 The tree has a very light canopy with few branches. No large branches have fallen in the last eight years. The Turnbulls' property under the tree is a garden and concrete driveway, and the fence is colorbond steel, none of which is likely to be damaged by a small live branch fall. For these reasons I find it is not likely that damage will occur to the Turnbulls' property in the near future, and therefore this tree does not meet the third test in s 10(2)(a) of the Act. In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case.

20 In relation to risk to any person, branches of the tree have only been reported to fall in windy weather. As it is unlikely that people would spend time under the tree in windy and stormy weather, I find that injury is not likely. Therefore this tree does not meet the test in s 10(2)(b) of the Act.

21 As the first tree does not meet any of the tests in s 10(2)(a) and (b) of the Act, no orders can be made regarding it.

Tree 2 22 The second tree, a rough bark Eucalypt, overhangs the boundary, drops leaves, seed capsules, and twigs up to 6 mm diameter and 0.5 m long. It has not, is not, and is not likely in the near future to cause damage to the Turnbulls' property. This tree has not been identified by the Turnbulls as likely to cause injury, and at the hearing I saw no reason to think it was likely to cause injury. Therefore it does not meet any of the tests in s 10(2)(a) and (b) of the Act, and no orders can be made regarding it.

Tree 3 23 The third tree, a Spotted Gum, overhangs the boundary. It drops leaves and twigs up to 12 mm diameter and 1 m long. This tree has not, is not, and is not likely in the near future to cause damage to the Turnbulls' property. This tree has not been identified by the Turnbulls as likely to cause injury, and at the hearing I saw no reason to think it was likely to cause injury. Therefore it does not meet any of the tests in s 10(2)(a) and (b) of the Act, and no orders can be made regarding it.

Tree 4 24 The fourth tree, a rough bark Eucalypt is growing about 4 m from the Turnbulls' house. Of the five trees, it overhangs the boundary most and extends slightly over their roof. The tree drops leaves and twigs onto the western section of the house roof and into the guttering, and has dropped live and dead branches up to 20 mm diameter and 1.5 m long. 25 The Turnbulls stated in their application that the roof was stained and dented, however no such damage was shown to me at the hearing, and my viewing of aerial photographs did not reveal any staining of the roof.

26 Similarly, the Turnbulls stated in their application that they have skylights that are at risk of being smashed, but no skylights on the house were shown to me at the hearing, and my viewing of aerial photographs did not reveal any skylights on the roof. I acknowledge however that skylights may have been installed after the date of the aerial photographs. I did see on the aerial photographs what appeared to be a solar hot water system on the eastern side of the roof, but I consider that too distant from the trees for damage to be likely from them.

27 The tree has damaged the fence, pushing it towards the Turnbulls' house by about 0.1 m at the top. Mr Fleet stated at the hearing that the fence is entirely on his side of the boundary and thus it is not shared property with the Turnbulls. He based that advice on his measurement to the fence from the house as shown on the approved plans for construction of the house. However I note that in the Fleets' letter to the Turnbulls solicitor in 2002, they state; 'Furthermore, he has not consulted us as joint owner of the boundary fence' which presents a different opinion. The Turnbulls stated at the hearing that they were not previously aware of any claim that the fence was not on the boundary, and they do not recall any note regarding the fence on the survey when they purchased. As the construction plans may not reflect the actual location of the Turnbulls' house, and the Turnbulls are not aware of any boundary error, I find it more likely that the fence is on the common boundary and damage to it is damage to the Turnbulls' shared property. Regardless, the tree in pushing the fence has, is, and is likely in the near future to continue pushing the Turnbulls' gatepost away from vertical and stopping their gate from working properly. On that basis the fourth tree meets the tests in s 10(2)(a) of the Act.

28 I note that at the hearing, Mr Fleet agreed to repair the fence to stop pressure being put on the gatepost and therefore avoid further damage. He agreed to install two new posts, one either side of the tree and to do that within three months. The fence needs to be repaired so that the Turnbulls' gate can operate properly, so I will order that Mr Fleet do the work that he agreed to.

29 Blockage of the stormwater pipe in 2001 and 2002 occurred under the concrete driveway adjacent the Turnbulls' house in line with the fourth tree. Mr Turnbull cleared and repaired the pipe in 2002. He says the pipe was almost 1 m deep, and a 30 mm diameter root that appeared to be growing from the Fleets' property had entered the pipe at a joint. I consider it possible that the root may have been from the larger Spotted Gum in the Turnbulls' backyard, and that it grew along the stormwater pipe trench before entering at a faulty joint. However, on the balance of probability, I find that the root is likely to be from the fourth tree, it being the closest tree, notwithstanding the compacted soil under the driveway. On that basis the tree meets the first and second tests in s 10(2)(a) of the Act. However, there not having been any further blockage of the pipe by roots in the six years since 2002, I do not find it likely that such blockage will occur in the near future. Therefore the tree does not meet the third test in s 10(2)(a) of the Act in this regard.

30 The Turnbulls showed me a crack across the driveway near the fourth tree. I do not find that this crack is likely to be caused by the tree because I saw two other similar cracks, in similar positions about half way between the expansion joints of other slabs, in locations where there are no trees. Also, neither side of the crack nor the whole slab appeared to be lifted, so I find it likely these are curing cracks or stress cracks unrelated to the trees. On that basis I find the tree does not meet the tests in s 10(2)(a) of the Act in relation to the concrete driveway cracks.

31 I address matters of leaves and twigs separately and find that they do not cause damage and therefore do not meet the tests in s 10(2)(a) of the Act. I note that this tree is closest to the Turnbulls' house and overhangs their roof, causing them concern. I also note that they could have exercised their common law rights to reduce the overhang of their property by all the trees. However, as a matter of discretion I will order the pruning of this tree to reduce its overhang, and that the cost of that pruning be shared equally by the Turnbulls and the Fleets. That order will avoid the parties having to make an application to Lake Macquarie City Council for pruning of the tree on this occasion. Perhaps all the trees could be managed in the future with shared costs of pruning.

Tree 5 32 The fifth tree, a Spotted Gum, is growing with a small part of its trunk on the Turnbulls' side of the boundary fence and the canopy overhangs the boundary. The tree drops leaves, bark and small branches up to 30 mm diameter but no damage has been caused or is likely to be caused by this material, so the tree does not meet the tests in s 10(2)(a) of the Act in this regard.

33 I was shown a low bush-rock garden wall on the Turnbulls' property beside the tree, and observed that it had cracks that are likely to have been caused by the tree. That cracking is likely to continue in the near future, so damage to the bush rock edging meets the tests in s 10(2)(a) of the Act.

34 The Turnbulls claim that they found tree roots at the edge of the concrete veranda at the rear of their house, and that the veranda has been damaged by this tree. They removed the roots and the veranda has been repaired. I was not shown any evidence at the hearing to support their claims. I find that on the balance of probability, the roots found at the edge of the concrete veranda are likely to be from the fifth tree, on the basis of its proximity. However, also on the balance of probabilities, I find that damage to the veranda slab is likely to have been caused by the swelling clays under that slab, so the tree does not meet the tests in s 10(2)(a) of the Act in this regard.

35 The Turnbulls claim that a crack across the driveway slab near the tree was caused by the tree. However, I observed that the crack is not in line with the tree and there is no lifting of the slab at the crack. Also the next two slabs down the drive have a similar crack across the middle of their length where there are no trees. On that basis I find the tree does not meet the tests in s 10(2)(a) of the Act in this regard.

36 As cracking of the bush rock garden edging is the only damage caused by the fifth tree, and I consider the damage to be minor, I will not order any intervention with the tree.

Flooding 37 The Turnbulls claim that flooding of the veranda, laundry and family room has occurred as the result of stormwater pipe blockage by leaves. I understand that the flooding occurred prior to 2007 when they still had a very large Spotted Gum in their backyard, and the point of blockage was a drain at the back veranda. As that drain is uphill of the first four trees on the Fleets' property, I find it likely on the balance of probability that the Turnbull's own tree was the major contributor to the blockage. On this basis I find that the Fleets' trees did not cause the flooding and therefore do not individually or as a group meet the tests in s 10(2)(a) of the Act in this regard.

38 If I am wrong in this regard, I note that the Turnbulls no longer have any Spotted Gums in their backyard, so the total amount of leaves is likely to be less. I also note that the veranda and adjacent area is excavated into the slope and is in effect a dam where water from the backyard would collect. The Turnbulls have recently improved the drainage arrangements at the rear of their house to direct surface flow around the northern and eastern side of the house rather than into the stormwater pipe on the western side of the house. On that basis I would find that any contribution to flooding by the trees will be minor, and as a matter of discretion I would not order any intervention with the trees.

Leaves and twigs 39 The Turnbulls claim in their application that the Fleets' trees cause 'a constant flow of leaves, branches and twigs falling onto our roof', 'The leaves and twigs block our gutters, downpipes and stormwater drains' and they have cleaned their 'house gutters …. 37 times with a total of 86 x 25 litre containers of leaves and sticks removed.'

40 However, considering the evidence provided and my own observations, I find that leaves and twigs from the Fleets' trees have not caused, are not causing and are not likely in the near future to cause damage to the Turnbulls' property. On this basis I find that the Fleets' trees do not individually or as a group meet the tests in s 10(2)(a) of the Act with regard to leaves and twigs.

41 In Robson v Leischke [2008] NSWLEC 152 Preston CJ discussed such matters at paragraph 171: However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7.

42 If I am wrong regarding damage from falling leaves and twigs, under s 12 (j) of the Act, I would apply the logic of the tree principle published in Barker v Kyriakides [2007] NSWLEC 292. That principle discusses the obligations of householders who have the aesthetic and environmental benefits of trees in an urban setting and the requirement that they may reasonably be expected to undertake property maintenance including the removal of tree detritus such as leaves, nuts, fruits or small branches falling from such trees onto their property. Similarly, I would not order removal of any of the trees on the basis of leaf and twig fall, as a matter of discretion.

Compensation 43 In accordance with Directions 5, 6 and 7 of the Callover Hearing, the Turnbulls have provided documents claiming $121 in compensation. That amount is for jet cleaning of a stormwater line as shown on Spycam Drain Cleaning invoice No 4306 dated 16 December 2004. I note that in the Turnbulls' letter to the Fleets dated 25 January 2005, they state 'Please find enclosed a copy of a receipt for $121.00 from Spycam Drain Cleaning being the cost to clear our drain of leaves.' As I have found above that leaves on the Turnbulls' property are also from their own trees, and leaves from the Fleets' trees have not caused damage to the Turnbulls' property, I find that compensation for cleaning leaves out of pipes is not appropriate, and the claim for compensation is refused. Considerations 44 Under s 12 (d) of the Act, I note that the Spotted Gums are Australian native species that occur naturally in the local area and are likely to contribute to the local ecosystem. The Lemon Scented Gum and rough bark Eucalypts are also likely to make some contribution to the provision of food and shelter for various fauna.

45 Under s 12 (e) of the Act, I note that the trees contribute to the visual landscape of the Fleets' property, and with about one third of the properties on the northern side of Nelson Street, create the attractive stands of urban forest.

46 Under s 12 (f) of the Act, I note that the trees provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, deflection and dispersal of strong winds, interception and holding of rain to reduce runoff, and catching of dust to improve air quality.

47 Under s 12 (h) (i) of the Act, I note that the Turnbulls had two large trees on their own property, one until 2007 and the larger until 2007, and that the roots and leaves of those trees may have contributed to the Turnbulls' problems.

48 Under s 12 (h) (ii) of the Act, I note that the Turnbulls have installed leaf collectors on downpipes and improved surface drainage so that stormwater problems should be reduced. I also note that the Fleets had the trees pruned in 2002 at their cost, to reduce overhang of the Turnbulls' property.

49 Under s 12 (j) of the Act, I note that the Turnbulls could have exercised their common law rights to reduce the overhang of trees onto their property, and may do so in the future. Conclusions 50 The first, second and third trees do not meet any of the tests in s 10(2)(a) and (b) of the Act, so no orders can be made regarding them.

51 The fourth tree is likely to have caused blockage of the stormwater pipe in 2002, and current damage to the fence, thus meeting the tests in s 10(2)(a) of the Act. The tree overhangs the roof of the Turnbulls' house and this seems to cause them particular concern. I have found that blockage of the stormwater pipe by roots of this tree is not likely in the near future, and damage to the fence is minor. On that basis, as a matter of discretion I will not order removal of the tree, but will order repair of the fence and pruning of the tree. It is my hope that having established a process for pruning of this tree with equal sharing of the costs between the parties, that they will employ a similar process to manage the trees in the future.

52 The fifth tree is likely to have caused, and likely to continue to cause damage to a low bush rock garden wall, thus meeting the tests in s 10(2)(a) of the Act. However, that damage is minor, and as a matter of discretion I will not order intervention with the tree.

53 The claim for compensation is not for a cost to rectify damage caused by any of the Fleets' trees, and is therefore refused. Orders 54 The application is upheld in part, and orders will be made as follows: a. Mr and Mrs Fleet shall repair the fence near the fourth tree by installing two new posts, one either side of the tree, and making the fence panels straight and vertical; b. The fence work shall be done by 31 January 2009, at Mr and Mrs Fleets' cost; c. The fourth tree, a rough bark Eucalypt, shall be pruned so that it overhangs the Turnbulls' property by about, but no more than 2 metres; d. The Turnbulls and the Fleets shall share the cost of the pruning equally; e. The pruning shall be done by 30 April 2009; f. The pruning shall be carried out by an AQF Level 3 arborist with suitable insurances, and the work shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees ; g. The Turnbulls shall grant access over their property to carry out the pruning work and for removal of the pruned branches; h. The work shall take place at reasonable times, on reasonable notice, and the Turnbulls may supervise the activities on their property; i. The Fleets shall obtain three quotations from suitable contractors for the work, and shall choose the cheapest unless the Turnbulls agree otherwise; j. The contractor shall invoice the Fleets and the Turnbulls separately, each for half of the cost of the work; k. These orders do not prohibit additional pruning of this or other trees as permitted by Lake Macquarie City Council.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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