The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 1353

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 1353 Hearing dates: 14 February 2022 Date of orders: 05 July 2022 Decision date: 05 July 2022 Jurisdiction: Class 2 Before: Froh R Decision: The Court orders that: (1) The Court grants the Motion. Catchwords: Costs – Notice of Motion – Land and Environment Court Rule 3.7 – whether costs fair and reasonable Legislation Cited: Civil Procedure Act 2005, s 98 Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509 Category: Costs Parties: The Owners – Strata Plan 46498 (Applicant) Kalliopi Evagelakos (Respondent) Representation: Counsel: C Figaro (Solicitor) (Applicant) M Seymour (Respondent)

Solicitors: Strata Title Lawyers (Applicant) A Plus Legal (Respondent) File Number(s): 2020/361816 Publication restriction: No

Judgment 1. This is an application for costs in Class 2 proceedings made by the Applicant in relation to a tree dispute under the Trees (Disputes Between Neighbours) Act 2006 (the Act) determined in The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509. In that case the Applicant sought the removal of bamboo and the madeira vine that was impacting its property and the boundary fence separating the Applicant and Respondent's respective properties in Oatlands. 2. The Commissioner made orders granting the removal of the bamboo and madeira vine from both the Applicant and Respondent's properties at the Respondent's expense and the replacement of the boundary fence to be shared equally between them. The Commissioner made detailed orders for these works. 3. Costs in Class 2 proceedings are to be considered under r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) as provided for in s 98 of the Civil Procedure Act 2005 (the CP Act). Section 98 of the CP Act provides: (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. 1. Rule 3.7 of the Court Rules provides: (1) This rule applies to the following proceedings: ... (b) all proceedings in Class 2 of the Court's jurisdiction, ... (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable. 1. The Notice of Motion filed 26 October 2021 and heard on 14 February 2022, seeks an order for costs under r 3.7 of the Court Rules.