Low v Elliott [2008] NSWLEC 111

Land and Environment Court of New South Wales

CITATION : Low v Elliott [2008] NSWLEC 111 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT PARTIES : Jonty Low RESPONDENT Kim Elliott

FILE NUMBER(S) : 208228 of 2007

CORAM: Pain J

KEY ISSUES: Costs :- whether fair and reasonable to award costs in Class 2 tree dispute proceedings

Civil Procedure Act 2005 s98 LEGISLATION CITED: Land and Environment Court Rules 2007 Pt 3 rule 3.7 Trees (Disputes Between Neighbours) Act 2006 s10(2)

CASES CITED: Low v Elliot [2007] NSWLEC 809 Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 7 March 2008

EX TEMPORE JUDGMENT DATE : 7 March 2008

APPLICANT Mr R O'Gorman-Hughes SOLICITOR Bray Jackson & Co LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton SOLICITOR Bartier Perry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

7 March 2008

208228 of 2007 Low v Elliott

EX TEMPORE JUDGMENT 1 Her Honour: In Low v Elliot [2007] NSWLEC 809, handed down on 21 November 2007, Commissioner Hoffman and Acting Commissioner Fakes held that the jurisdiction of the Court was not enlivened under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Disputes Act) because they were not satisfied the five trees in issue on the Respondent's property were likely to cause damage to the Applicant's property in the near future and dismissed the Applicant's appeal. 2 The Respondent now seeks her costs of the proceedings under Pt 3 r 3.7 (r 3.7) of the Land and Environment Court Rules 2007 (the Court Rules). The Court Rules are referred to in s 98 of the Civil Procedure Act 2005 as relevant to consider on costs. Section 98 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 Rule 3.7 concerns "Costs in certain proceedings". It 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.