126 Given that we have accepted the upper end of Mr Abelas's estimate and that we have concluded, for the reasons set out above, to permit Ms Zhang an extended period of time within which to complete the works, we have decided that the desirable corollary of these is that the Longs' financial exposure should be capped at the amount calculated earlier. Our proposed orders reflect this conclusion.
Costs of reports commissioned by Ms Zhang
127 Three reports have been tendered on Ms Zhang's behalf in these proceedings. These were from:
o An arborist trading as Dr Treegood. The initial inspection and subsequent report cost a total of $1,137;
o Mr Abelas. This report cost $420; and
o Sydney Building Reports who provided a report on costs of rectification. This report cost $975.
128 Ms Zhang seeks reimbursement for the cost of each of these reports.
129 As to the report by Dr Treegood, after careful consideration of the matters canvassed in it and its general irrelevance to the issues between the parties, we do not consider that the cost should be reimbursed to Ms Zhang. It merely stated the totally obvious. It did not canvass any other relevant matters relating to drainage or other water access issues.
130 The imperative for the Longs to agree to the removal of the tree came, we consider, from the making of the application itself and the direction given at callover for the Longs to propose any alternative orders to those sought by Ms Zhang. This report would not have assisted that decision making process.
131 As to the report by Mr Abelas, we found this of limited reliability (consistent with our general assessment of his evidence over all). However, we do not consider that his report was entirely without value in the proceedings.
132 We are concerned that the report recommended an underpinning company of which his son was a director without this fact being disclosed - particularly when dealing with a client who, prima facie, is not commercially experienced and for whom English is her second, significantly less proficient language. However, on balance, we are satisfied that this reflects poorly on his ethics rather than his professional competence and we have not taken this into account on our assessment of his report or on the question of reimbursement for it.
133 On the other hand, again consistent with our general approach to his evidence over all, we would discount the amount to be reimbursed by the Longs to reflect the value of his participation and his report. We therefore propose to allow a claim for 50% of the cost of his report.
134 As to the report by Sydney Building Reports, we are satisfied that this was a proper and genuine, traditional professional report on the cost estimates of a range of possible rectification works. As noted earlier, we have found it useful in providing a check of the approach we have taken on quantum. It is appropriate that Ms Zhang be reimbursed the full cost of this report.
135 Therefore, the Longs should reimburse Ms Zhang a total of $1185 toward the cost of these reports.
Orders
136 As a consequence of the forgoing, noting the agreement of the respondents that the tree should be removed at their expense and noting that orders (1) to (12) broadly reflect the orders in this regard proposed by the respondents, the application is granted in part and the orders of the Court are:
1. The respondents are to remove the Camphor Laurel (Cinnamomum camphora) located adjacent to the boundary of the applicants' property by cutting the two first order structural branches to 1 m stumps;
2. Immediately after cutting, both stumps are to be ringbarked;
3. The ringbark wound in (2) is to be 100mm in depth located 200mm from the top of each stump;
4. The ringbark wound area of each stump is to be applied uniformly by brush with undiluted herbicide with glyphosate as the active ingredient;
5. The stumps and their roots are not otherwise to be disturbed during the process in (2) to (4);
6. The work in (1) to (4) is to be completed within 28 days of these orders;
7. The work in (1) to (4) is to be carried out by an AQF level 3 equivalent or higher arborist with appropriate insurances;
8. For one month after the completion of the work in (1) to (4), the respondents are to monitor the stumps and any exposed roots for the development of new shoots;
9. If new shoots are observed, the respondents are to repeat the poisoning in (4) by ringbarking a further 200mm down the stump;
10. If further new shoots are observed one month after (9) is completed, (9) is to be repeated;
11. The arborist in (7) is to grind the stumps and all roots to the east of the stumps, to the boundary of the applicants' property, to 300mm below ground level; and
12. The work in (11) is to be completed no later than 90 days after the date of these orders;
13. The respondents are to pay the applicants the sum of one thousand one hundred and eighty-five dollars ($1,185.00) within 28 days of the date of these orders;
14. The respondents are to pay the applicants the sum of thirteen thousand three hundred and fifty dollars ($13,350.00) within 28 days of service on the respondents of a receipted account for the demolition and reconstruction of the effected areas of the north-western corner of the applicants' dwelling;
15. If the applicants sell the property without undertaking demolition and reconstruction of the effected areas of the north-western corner of the applicants' dwelling with settlement and transfer of title taking place before the expiry of three (3) years from the date of these orders, the respondents are to pay the applicants the sum of thirteen thousand three hundred and fifty dollars ($13,350.00) within 28 days of service on the respondents of proof of transfer of title from the applicants to the purchaser;
16. Order (14) lapses at the expiry of three (3) years from the date of these orders if a receipted account for the demolition and reconstruction of the effected areas of the north-western corner of the applicants' dwelling is not served on the respondents by that time;
17. Order (15) lapses at the expiry of three (3) years from the date of these orders if the applicants sell the property without undertaking demolition and reconstruction of the effected areas of the north-western corner of the applicants' dwelling and a demand for payment pursuant to order (15) accompanied by proof of transfer of title from the applicants to the purchaser is not served on the respondents before the expiry of three (3) years from the date of these orders; and
18. The exhibits, other than Exhibit C, are returned.