Carey v Pattinson (No 2) [2020] NSWLEC 177

Land and Environment Court New South Wales

Medium Neutral Citation: Carey v Pattinson (No 2) [2020] NSWLEC 177 Hearing dates: 11 December 2020 Date of orders: 11 December 2020 Decision date: 15 December 2020 Jurisdiction: Class 4 Before: Pepper J Decision: Notice of motion dismissed. Catchwords: COSTS: application for costs in Class 2 tree matter – presumptive rule that each party pays their own costs unless fair and reasonable to otherwise order – whether fair and reasonable to order that the unsuccessful applicants pay costs – whether unreasonable not to excavate to determine the cause of damage – whether unreasonable for the applicants to rely on expert evidence stating that the tree was to blame for the damage – whether the applicants acted reasonably in attempting to reach agreement with the respondents – merely because the Acting Commissioner did not accept the expert evidence of the applicants did not make their commencement and conduct of the proceedings unreasonable – application for costs dismissed. Legislation Cited: Civil Procedure Act 2005 s 98(1) Land and Environment Court Rules 2007 r 3.7(2) and (3) Trees (Disputes Between Neighbours) Act 2006 s 10(1) Cases Cited: Carey v Pattinson [2020] NSWLEC 1515 Marks v Perham (No 2) [2020] NSWLEC 84 McLaren v Lewis (No 2) [2011] NSWLEC 176; (2011) 183 LGERA 344 Zhang v Davidson (No 2) [2020] NSWLEC 89 at [70] Category: Costs Parties: Michael and Kelly Carey (Applicants) Adam and Leanne Pattinson (Respondents) Representation: Counsel: K Carey (Litigant in Person) (Applicants) P Bahlmann (Solicitor) (Respondents)