Land and Environment Court of New South Wales CITATION : Tou v Maskiney [2010] NSWLEC 105 APPLICANTS lat Sang Tou and Hing Hing Hilda Tou PARTIES : RESPONDENT Charles Moutledge Maskiney FILE NUMBER(S) : 20919 of 2009 CORAM: Preston CJ KEY ISSUES: COSTS :- tree dispute - applicant neighbour successful in obtaining orders for tree removal and compensation - whether fair and reasonable to order respondent tree owner to pay costs - whether unreasonable conduct by tree owner in the circumstances leading up to the litigation - partial costs order made LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Evans v Maclean Shire Council [2004] NSWLEC 89; (2004) 133 LGERA 270 CASES CITED: Grant v Kiama Municipal Council [2006] NSWLEC 70 Oshlack v Richmond River Council (1998) 193 CLR 72 Tou v Maskiney [2010] NSWLEC 1068 DATES OF HEARING: 25 May 2010 EX TEMPORE JUDGMENT DATE : 25 May 2010 APPLICANT Ms H Sin (solicitor) SOLICITORS Helen Sin Legal Pty Limited LEGAL REPRESENTATIVES: RESPONDENT Ms K Welshman SOLICITORS T.H. Walker Solicitors and Conveyancers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 25 May 2010 20919 OF 2009 TOU V MASKINEY JUDGMENT 1 HIS HONOUR: Mr and Mrs Tou have applied for an order that their neighbour, Mr Maskiney, pay their costs of the proceedings Mr and Mrs Tou brought in the court under the Trees (Disputes Between Neighbours) Act 2006. 2 The proceedings were heard and determined by Commissioner Fakes on 22 March 2010. Commissioner Fakes ordered Mr Maskiney to arrange and pay for the removal of a Casuarina tree growing on Mr Maskiney's land which had caused damage to certain property on Mr and Mrs Tou's land; to pay Mr and Mrs Tou a specified amount in compensation for that property damage; and to arrange and pay for a plumber to clear a specified length of the sewer on Mr and Mrs Tou's land: see Tou v Maskiney [2010] NSWLEC 1068 at [22]. 3 Proceedings brought by Mr and Mrs Tou are in Class 2 of the Court's jurisdiction. Under Part 3 rule 3.7 of the Land and Environment Court Rules 2007 costs for proceedings in Class 2 ordinarily are not awarded. Rule 3.7(2) provides: "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." 4 Mr and Mrs Tou, nevertheless, submit that the making of a costs order is fair and reasonable in the circumstances. Although a range of circumstances was referred to in Mrs Tou's affidavit, at the hearing of the motion for costs, Mrs Sin, the solicitor for Mr and Mrs Tou, relied only on the factor that Mr Maskiney had acted unreasonably in the circumstances leading up to the commencement of the proceedings: see rule 3.7(3)(c) and see also Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15(e)] and cases therein referred to. One example of unreasonable conduct is where a party, by its conduct, effectively invites the litigation: see Oshlack v Richmond River Council (1998) 193 CLR 72 at [69] and Evans v Maclean Shire Council [2004] NSWLEC 89; (2004) 133 LGERA 270 at [21]-[24]. 5 Mr and Mrs Tou first refer to the fact that there are no trees in the front yard of their land (although there is a street tree at the front of Mr and Mrs Tou's land) and the relevant trees are located in Mr Maskiney's land along the common boundary with Mr and Mrs Tou's land. They also refer to the fact that at the hearing of the proceedings Mr Maskiney did not factually contest, by either evidence or submissions, that the Casuarina tree on his land had caused damage to Mr and Mrs Tou's driveway and probably blocked the sewer: see paragraph 14 of Commissioner Fakes' judgment. After the proceedings were commenced, Mr Maskiney agreed, at his expense, to remove the tree and clear the sewer and pay half the costs of replacing the concrete drive and pathway. 6 Mr and Mrs Tou submit that Mr Maskiney's conduct prior to the litigation needs to be assessed against this background. 7 Mr and Mrs Tou adduced evidence that they had, over many years, informed Mr Maskiney that the trees on Mr Maskiney's property, including the Casuarina tree, were causing damage to Mr and Mrs Tou's property, including by tree roots blocking the sewer and lifting and cracking the driveway. Mr and Mrs Tou wrote on 7 August 2008 to Mr Maskiney's real estate agent who manages the property. Their letter recorded the fact that Mr and Mrs Tou had been complaining to Mr Maskiney for the previous ten years about the trees located on the common boundary. Mr and Mrs Tou said in their letter: "I have on many occasions since 1999 complained about the trees that are located near the front driveway of my residence. The trees in question are of species Casuarina sp., Jacaranda (Bignoniaceae) , Banksia (Proteaceae) and Paper-bark (Melaleuca sp.) . All of which have been highly expanding and invasive root systems. Unfortunately no action has happened since complaining every year for the past 10 years regarding the uprooting of the concrete slabs on my driveway, causing uneven deviations and instability of the soil profile and the constant blockage of my drainage. Photographs taken by a plumber showing how the proliferation of the roots from your trees have blocked my drainage have been sent previously. Moreover, I have also given you copies of receipts paid each time to a plumber to have my drainage unblocked." 8 The letter included numerous photographs showing the damage caused by the trees. 9 The letter requested Mr Maskiney to "take action to control the tree roots that have caused destruction [of] my driveway and drainage system". The action requested was: "With the cost of living increasing rapidly it is unavoidable that I write to you to seek compensation for the damage to my driveway and to repay any continued costs of having to unblock the drainage by a plumber. Furthermore, it is my recommendation that in the interests of health and safety for occupants on both properties, and also to avoid further any escalating costs that the trees be removed or some action be taken to trim back the roots and branches of the trees by the Warringah Council Development Application for Tree Removal and Pruning under the Environmental Planning and Assessment Act 1979 (sections 78A)." 10 The letter concluded with the statement: "I hope to hear from you soon with a favourable response." 11 Mr Maskiney's managing agent replied by letter dated 19 August 2008 stating in part: "In response to your letter, the owner of Number 30 has been advised of the problem concerning the tree and has advised us that her legal responsibility for the tree, ends at their boundary not on to your property. They have no problem with you removing any overhanging branches or tree roots that affect your property, however, this would be at your cost." 12 On 3 June 2009, Mr and Mrs Tou's solicitor, Mrs Sin, wrote to Mr Maskiney stating: "As you are aware, our clients have complained since 2006 about the damages to our clients' property caused by the tree roots in your property. Our clients have been incurring ongoing costs in rectifying these damages. Despite all our clients' warning to you since 2006, you have taken no action at all to fix the problems. The extent of damages includes: 3. Driveway concrete slabs are broken and displaced. 4. Roots of your trees proliferate to the surface of our clients' lawn." 13 Compensation in the sum of $5,700 was claimed: "In April 2009, our clients were advised that the estimated cost of repair would be $5,700.00. We are instructed to hereby demand your payment of $5,700.00 within 7 days of this letter, failing which our clients will commence legal proceedings for the damages and also claim legal costs against you without further notice." 14 Also on 3 June 2009, Mrs Sin spoke to Mr Maskiney's managing agent who said that Mr Maskiney had applied for removal of the tree but was rejected by the local council, Warringah Council. Mrs Sin wrote to the managing agent immediately after this conversation requesting: "Mr Maskiney's application for removal of the tree that causes the problem and the Council's response to the application". 15 Neither Mr Maskiney nor his managing agent ever replied to this request or supplied a copy of the application to the Council or the Council's response to the application. Indeed, subsequently to the proceedings being commenced, the Council wrote to Mrs Sin stating: "I note that the managing agent of the tree owner claims to have applied for removal of the tree in June 2009 and asserts that this application was rejected by Warringah Council. A search of council's records do not do not reveal any such application or determination." 16 Mr Maskiney's managing agent's only response was by letter dated 7 August 2009 stating simply: "In reference to your letter dated 3 June 2009, we have had a response from our client advising they accept no responsibility for the issues raised regarding tree roots." 17 Mrs Sin, on behalf of Mr and Mrs Tou, submitted that in these circumstances Mr and Mrs Tou had no choice other than to commence proceedings in the Court seeking an order under the Trees (Disputes Between Neighbours) Act 2006 for removal of the tree causing the property damage and for compensation for the property damage caused by the tree. 18 Mr and Mrs Tou filed the relevant application commencing the proceedings on 2 December 2009. The application was served on Mr Maskiney on 7 December 2009. Mrs Sin states in her letter of 17 February 2010 to Mr Maskiney that Mr Maskiney did not respond to the application until 12 February 2010 when Mr Maskiney's solicitors, Messrs T H Walker, made an offer of settlement. Mr Maskiney offered, at his expense, to remove the tree and clear any tree roots from the drains and pay half of the cost of repair of the damage to the drive and of the plumbing costs incurred to date for clearing of drains to remove true roots. That offer was rejected by Mr and Mrs Tou (see Mrs Sin's letter of 17 February 2010). 19 Mrs Sin submitted that Mr Maskiney's failure to respond to Mr and Mrs Tou's requests over the preceding 10 years, and in particular to the letters of 7 August 2008 and 3 June 2009, requesting Mr Maskiney to take action to remove the tree causing the problems or abate the nuisance, was unreasonable in the circumstances. There could not have been, and there was not in fact, any factual contest that Mr Maskiney's tree had caused, was causing and would continue in the future to cause if not removed, property damage to Mr and Mrs Tou's land. 20 Mr Maskiney's counsel, Ms Welshman, submitted that, although it would have been preferable for Mr Maskiney to have responded earlier along the lines of the offer made subsequently on 12 February 2010, the failure to do so was not so unreasonable as to warrant an order for costs. Ms Welshman submits that it was not unreasonable for Mr Maskiney to reject any demand of Mr and Mrs Tou to remove Mr Maskiney's tree or cut back the tree roots or branches or to compensate Mr and Mrs Tou for property damage caused by the tree. As I understand the submission, it was said that a tree owner never need agree to any demand of a neighbour until proceedings are commenced. Ms Welshman also submitted that Mr Maskiney did not act unreasonably in rejecting Mr and Mrs Tou's demands because until the proceedings were commenced claiming relief with respect to the Casuarina tree, Mrs Tou had not identified which of Mr Maskiney's four trees along the common boundary was or were causing the problem. Mr Maskiney, it was submitted, was entitled therefore to do nothing about any of the trees. 21 Ms Welshman also referred to the fact that Mr and Mrs Tou rejected Mr Maskiney's offer of 12 February 2010 as evidence that, even if Mr Maskiney had responded constructively to any earlier demand of Mr and Mrs Tou by offering to take action, prior to the proceedings being commenced, Mr and Mrs Tou would also have rejected any such offer. 22 I find that Mr Maskiney has acted unreasonably in the circumstances leading up to the commencement of the proceedings and that this makes it fair and reasonable to make an order for costs in favour of Mr and Mrs Tou. However, I do not consider that Mr Maskiney should pay the whole of the costs of the proceedings. I consider that Mr Maskiney's offer of 12 February 2010 was reasonable and indeed was similar to the orders ultimately made by Commissioner Fakes. Mr Maskiney's conduct from the time of that offer onwards, including at the hearing, was reasonable. The counter offer of Mr and Mrs Tou in the letter of 17 February 2010 was an ambit claim which Mr Maskiney acted reasonably in rejecting and was considerably different to the orders Commissioner Fakes ultimately made. 23 I therefore consider that any order for costs should be restricted in time up to and including the court appearance on 15 February 2010 but not afterwards. 24 My reasons for concluding that Mr Maskiney acted unreasonably in circumstances up to that time are essentially those put forward on behalf of Mr and Mrs Tou and set out above. 25 Mr Maskiney's letter of offer of 12 February 2010 and subsequent conduct in the proceedings were based on the undisputed facts that his trees had caused, were causing and would continue to cause property damage to Mr and Mrs Tou's property if the trees were not removed. These facts existed and were known to Mr Maskiney at all material times leading up to the litigation. There was no relevant change in circumstances or in knowledge between Mr Maskiney's continual rejection of the demands of Mr and Mrs Tou for Mr Maskiney to take action to remedy the problems being caused by the trees and Mr Maskiney's offer of 12 February 2010. No satisfactory explanation has been provided as to why Mr Maskiney could not have offered at earlier times to take the action he subsequently agreed to take with respect to the tree and to payment of compensation. 26 Mr Maskiney could have, but did not, make formal written application to Warringah Council to remove the tree or to cut the tree roots and branches. This action was requested by Mr and Mrs Tou in their letter of 7 August 2008 but Mr Maskiney declined to do so (see letter of Mr Maskiney's managing agent of 19 August 2008) and he did not do so (see letter of the Council dated 11 December 2009). Mr Maskiney could have made the offers he subsequently made to have Mr and Mrs Tou's sewer cleared of tree roots and pay half of the plumbing costs incurred to date and half of the costs of repairing the driveway damaged by the tree roots. Again, he declined to do so and indeed claimed he had no legal responsibility for the tree or the damage it had caused (see Mr Maskiney's managing agent's letters of 19 August 2008 and 7 August 2009). Again, no satisfactory explanation has been given as to why Mr Maskiney took the stand he did. 27 I reject Ms Welshman's submission that a tree owner is entitled to repel any demands by a neighbour who has suffered, is suffering and will continue to suffer property damage caused by the tree owner's tree, however reasonable, until such time as the neighbour brings proceedings. That is indeed unreasonable conduct. 28 I also reject Ms Welshman's submission that Mr Maskiney was entitled to do nothing because Mr and Mrs Tou had not identified which one or more of four trees of Mr Maskiney was causing the property damage. First, whichever tree or trees was or were causing damage, they were on Mr Maskiney's land. Secondly, if this was in fact a concern to Mr Maskiney, he could have sought clarification so as to be able to take the appropriate action in relation to the relevant tree or trees. It was not reasonable, however, to do nothing at all in relation to any of the trees. 29 Finally, I do not consider that it would be appropriate to rely on Mr and Mrs Tou's rejection of Mr Maskiney's offer of 12 February 2010 as a basis for inferring that even if Mr Maskiney had acted reasonably and offered at an earlier time to take action in relation to removal of the tree and payment of compensation, Mr and Mrs Tou would have rejected any such offer. There is no direct evidence that they would have done so. The indirect evidence from their letters in 2008 and 2009 is that they would have been receptive to any such offer - the very purpose of their letters was to request Mr Maskiney to take such action. Furthermore, as Mrs Sin submitted, the rejection of the offer of 12 February 2010 was after the proceedings had been commenced and significant legal and other costs had been incurred. The situation was not comparable to the situation of an offer made before proceedings had been commenced. 30 For these reasons I conclude that it is fair and reasonable to order Mr Maskiney to pay Mr and Mrs Tou's costs of the proceedings up to and including the court appearance on 15 February 2010. The costs can be as agreed or assessed. 31 As Mr and Mrs Tou have been successful in their notice of motion seeking an order for costs, they should also receive their costs of the notice of motion. These costs should also be as agreed or assessed. I do not consider that the fact that the order the court will make is as to part and not the whole of the costs of the proceedings means that Mr and Mrs Tou have not been successful in their notice of motion. Mr Maskiney opposed any order for costs and was unsuccessful in this opposition. Furthermore, Mr and Mrs Tou did make a late offer to settle the motion for costs by letter to Mr Maskiney on 24 May 2010. This offer was for an amount that was roughly calculated to be the costs of commencing the proceedings and for disbursements. This involves part of the costs that I consider to be appropriate to be awarded. 32 The formal court orders are: 1. The respondent is to pay the applicants' costs of the proceedings up to and including the court appearance on 15 February 2010, as agreed or assessed; and 2. The respondent is to pay the applicants' costs of the notice of motion filed 19 April 2010 for costs, as agreed or assessed. 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