Such a situation arose in a case in which we acted for the aggrieved neighbour. Our clients had for many years requested their neighbours to do something about damage which their neighbour’s umbrella tree was causing to the dividing wall between their respective properties. Our client finally applied to the court which ordered the removal of the umbrella tree and the repair of the damage to the dividing wall at the cost of the neighbour. The neighbour argued as a separate point that the foundations of the dividing wall (as opposed to the wall itself) may result in better foundations than previously existed so that our clients would be receiving a betterment. The court ordered that if new foundations for the wall were needed, that our client pay for half of the lowest of 3 quotes received for the rebuilding those foundations.
The factors taken into account by the Acting Commissioner in the process of reaching a decision are set out in the decision located in the following link
https://www.caselaw.nsw.gov.au/decision/54a638593004de94513d9dbd
Because the Acting Commissioner did not have power to award costs in favour of our client it was necessary for us to make a further application to the Land and Environment Court to obtain a costs order in favour of our client, including the costs of the further application and interest on those costs.
