Land and Environment Court New South Wales Medium Neutral Citation: Cheng v Robertson [2024] NSWLEC 1416 Hearing dates: Notice of Motion, 12 June 2024 Date of orders: 22 July 2024 Decision date: 22 July 2024 Jurisdiction: Class 2 Before: Froh R Decision: The Court orders that: (1) The motion is dismissed. Catchwords: COSTS – notice of motion – Land and Environment Court Rule 3.7 – whether costs fair and reasonable Legislation Cited: Land and Environment Court Rules 2007, r 3.7 Cases Cited: Cheng v Robertson [2024] NSWLEC 1226 Category: Costs Parties: Scott Robertson (First Applicant on the motion) Bo Robertson (Second Applicant on the motion) Lissa Cheng (First Respondent on the motion) John Bridge (Second Respondent on the motion) Representation: Counsel: B Robertson (Self-represented) (Second Applicant on the motion) L Cheng (Self-represented) (First Respondent on the motion) File Number(s): 2024/41828 Publication restriction: Nil JUDGMENT 1. This matter is a Notice of Motion whereby the Respondents in the substantive proceedings, Scott Alan Robertson and Bo Robertson, are seeking costs from the Applicants, John Bridge and Lissa Cheng the under r 3.7 of the Land and Environment Court Rules 2007 (Rules). 2. Mr and Mrs Robertson filed an affidavit that although executed and witnessed, was purported to be sworn by both Mr and Mrs Robertson in the same document. This is irregular and as such the document was not sought to be read as evidence during the hearing of the motion for costs and was instead used by Mrs Robertson to guide her submissions on costs. 3. Mrs Robertson claims costs for; 1. Arborist report in the amount of $1000 2. Plumbers report in the amount of $1045 3. Compensation for allegedly poisoned plants (unquantified) 4. Cost of restoring driveway in the amount of $12,760 1. Mrs Robertson was informed during the hearing of the motion that compensation for the plants she alleges were poisoned are not recoverable under r 3.7 of the Rules, nor is such a claim within the jurisdiction of the Land and Environment Court. 2. Mrs Robertson was similarly informed that the costs she is claiming concerning her driveway were not raised and determined by the Commissioner in the hearing of the substantive proceedings and, accordingly, it is not within the Court's power to award costs for the restoration of the driveway under r 3.7 of the Rules. 3. As such, I have not considered these claims further and the claim for compensation in respect of allegedly poisoned plants and the restoration of the Robertsons' driveway are dismissed. 4. I now turn to the costs Mrs Robertson claims for the plumber and the arborist reports that have been prepared for and tendered as evidence in the substantive proceedings. Mrs Robertson submitted that she is entitled to an order for costs for these two reports under r 3.7 of the Rules as she believes the Applicants acted unreasonably leading up to the commencement of the proceedings, that they acted unreasonably in the conduct of the proceedings, that the Applicants commenced the proceedings for an improper purpose and that the proceedings were commenced and continued by the Applicants when the claim did not have reasonable prospects of success. 5. Mrs Robertson also alleges that the Applicants submitted false statements and fabricated evidence. 6. In his judgment, Galwey AC at paragraphs [9]-[11] details the steps taken by the Mr Bridge and Ms Cheng prior to commencing the substantive proceedings to discuss and resolve their dispute with the Robertsons about the blocked pipes on Mr Bridge and Ms Cheng's property which Mr Bridge and Ms Cheng believed had been damaged by the Robertsons' mandarin tree. 7. Galwey AC observes at [9] that; "…The Robertsons feel they were ambushed, that they were not provided any opportunity to properly view the damage or to have it assessed, and that they were never shown any evidence that roots from their tree had damaged the pipe. They argued, therefore, that the applicants' efforts [to resolve the dispute] were not reasonable." 1. Ultimately Galwey AC finds that Mr Bridge and Ms Cheng made a reasonable effort to provide the evidence sought by the Robertsons and to reach agreement with the Robertsons prior to commencing the proceedings. As such, I agree with Galwey AC that the proceedings were reasonably and properly commenced. 2. Mrs Robertson claimed that evidence and statements were falsified. I reject that assertion. As such I find that there is no basis to support Mrs Robertson's submission that Mr Bridge and Ms Cheng acted unreasonably leading up to the commencement of the proceedings, that they commenced the proceedings for an improper purpose and that the proceedings were commenced when the claim did not have reasonable prospects of success. 3. Galwey AC finds in the Robertsons' favour that the mandarin tree did not cause and will not cause damage to the pipes on Mr Bridge and Ms Cheng's property. This finding was based on careful weighing and testing of the evidence before him. He makes it clear that he "cannot be sure that the mandarin's roots played no part in the damage, however, on the limited evidence before me, I am not satisfied that the mandarin tree's roots caused damage to the pipe" (at [27]). This finding meant he could not make the orders sought by the Applicants. Galwey AC concluded that future damage is unlikely due to the pipe now being entirely PVC and it is unlikely roots will damage it. 4. To some extent, the Robertsons' application for costs misunderstands Galwey AC's findings in the substantive proceedings. Although Galwey AC found in the Robertsons' favour and did not make the orders sought by Mr Bridge and Ms Cheng, his findings do not mean that Mr Bridge and Ms Cheng's evidence was falsified or fabricated or falsified, that they acted unreasonably in the conduct of the proceedings, or that the proceedings were continued by Mr Bridge and Ms Cheng when their claim did not have reasonable prospects of success. 5. Indeed the discussion in his judgment details his testing and weighing of each party's evidence and the reasons for his decision. It is my view that Galway AC reached his decision in this matter with the assistance of the arborist report and evidence from both parties and that the Court has been provided with meaningful assistance from both parties and their experts in determining the real issues in dispute. 6. I find that this is not a case in which it is fair or reasonable for me to make an order for costs and the Robertsons' motion is dismissed. Orders 1. The Court orders: 1. The motion is dismissed. S Froh Registrar of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2024