Moase v MacMahon [2011] NSWLEC 13

Land and Environment Court New South Wales

Medium Neutral Citation: Moase v MacMahon [2011] NSWLEC 13 Hearing dates: 10 February 2011 Decision date: 10 February 2011 Before: Pain J Decision: 1.The Applicants are to pay costs in the amount of $3,220 to the Respondent. 2.The Applicants are to pay the Respondent's costs of the Notice of Motion filed 24 December 2010. Catchwords: Costs - whether fair and reasonable to award costs in trees dispute in exercise of the Court's discretion Legislation Cited: Civil Procedure Act 2005 s 98 Land and Environment Court Rules 2007 r 3.7 Trees (Disputes Between Neighbours) Act 2006 s 7, s 9, s 10, s 12 Cases Cited: Low v Elliott [2008] NSWLEC 111 Moase v MacMahon [2010] NSWLEC 1123 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98 Category: Consequential orders Parties: Bernard Moase, Joan Moase (Applicants) Margaret MacMahon (Respondent) File Number(s): 20162 of 2010

EX TEMPORE Judgment 1Mrs MacMahon, the Respondent, has filed a Notice of Motion seeking costs in the amount of $3,220. The substantive proceedings were an appeal by the Applicants under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). Various orders were sought in relation to the removal of several large branches of the very large fig tree on the Respondent's property overhanging the Applicants' property, the erection of a root barrier across the northern side of their lawn, seeking compensation for the removal and replacement of concrete paving, part of a driveway and a low brick wall, and raising concern about injury to persons. The matter was heard and determined by a commissioner of this Court on 20 May 2010: Moase v MacMahon [2010] NSWLEC 1123. The Commissioner dismissed most of the Applicants' claims and refused to make a number of orders sought. The Respondent was represented by her solicitor and Mr Moase, one of the Applicants, spoke for them both. 2The Applicants commenced proceedings with a tree dispute application seeking compensation for property damage, to rectify or prevent property damage and contending that there was risk of injury to people. Supplementary forms for damage to property, compensation and risk of injury to people were also filed. Compensation was claimed in the amount of $33,729. 3Costs 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. 4Rule 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.