The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 115

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 115 Hearing dates: 5 September 2022 Date of orders: 7 September 2022 Decision date: 07 September 2022 Jurisdiction: Class 2 Before: Pepper J Decision: See orders at [79]. Catchwords: REVIEW: review of a decision of the Registrar to award costs in Class 2 proceedings – applicable legal principles – whether necessary to demonstrate error on the part of the Registrar – error not required – error by Registrar in the decision to award costs – decision set aside. COSTS: whether it is fair and reasonable to award costs in a Class 2 tree dispute – presumptive rule that there be no order as to costs unless fair and reasonable – whether respondent unreasonably rejected offers of settlement prior to commencement of proceedings – respondent engaged legal representative and expert arborist upon whose advise she relied – respondent made concessions during the course of the hearing – whether unreasonable to have made concessions – fact that Court rejected the evidence of her expert and that she was the unsuccessful party to the litigation did not make it fair and reasonable that costs be awarded against her – each party to bear their own costs of the proceedings, including the costs hearing before the Registrar and the review hearing. Legislation Cited: Civil Procedure Act 2005, s 98(1) Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006, s 10(2)(a) Uniform Civil Procedure Rules 2005, r 49.19(1) Cases Cited: Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103 DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 Marks v Perham (No 2) [2020] NSWLEC 84 Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Arman Pty Limited [2022] NSWCA 146 Simo Popovac v Dominic Kennedy [2022] NSWLEC 9 The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509 The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 1353 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Zhang v Davidson (No 2) [2020] NSWLEC 89 Category: Costs Parties: The Owners – Strata Plan 46498 (Applicant) Kalliopi Evagelakos (Respondent) Representation: Counsel: T Bacon (Applicant) M Seymour with C Koikas (Respondent)