Fox v Ginsberg (No 3) [2011] NSWLEC 139

Land and Environment Court New South Wales

Medium Neutral Citation: Fox v Ginsberg (No 3) [2011] NSWLEC 139 Hearing dates: 12 August 2011 Decision date: 12 August 2011 Jurisdiction: Class 2 Before: Pain J Decision: The Court orders the Respondent to pay $3,171.50 to the Applicant which sum is not recoverable for six months from the date of this order. Catchwords: COSTS - tree dispute - 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: Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 s 121B Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Rules 2007 Pt 3 r 3.7 Cases Cited: Fox v Ginsberg [2011] NSWLEC 1204 Tou v Maskiney [2010] NSWLEC 105 Category: Principal judgment Parties: Jenny Fox (Applicant) Nicky Ginsberg (Respondent) Representation: Mr T Sattler (Applicant - Solicitor) Mrs N Ginsberg (Respondent - in person) Sattler & Associates (Applicant) File Number(s): 20155 of 2011

EX TEMPORE Judgment 1This is an application for costs in Class 2 proceedings made by the Applicant in relation to a tree dispute under the Trees (Disputes Between Neighbours) Act 2006 (the Act) determined in Fox v Ginsberg [2011] NSWLEC 1204 ( Fox No 1 ). At issue were three trees (T1, T2, T3) in the Respondent's back yard and their impact on the masonry brick wall which is on the boundary of the Applicant and Respondent's respective properties in Woollahra. The Applicant's land is lower than the Respondent's land; the circumstances are identified in Fox No 1 at [2]. The Commissioners made orders dismissing the application to remove T2 and T3 on the basis the Court did not have the necessary jurisdiction under the Act as no damage resulting from these trees was demonstrated. In relation to T1, the Commissioners accepted that this could remain as it was important to the protection and privacy of the Respondent's house. They observed that it was obvious that damage was caused by T1 to the masonry brick wall on the boundary and this was confirmed by the engineering reports the respective parties relied upon. The Commissioners made detailed orders requiring the disassembling and removal of the existing wall, cleaning of bricks, trimming of the tree roots and dead wood from T1 and T2, replacement of the wall in accordance with engineering plans and with the wall to be clad with the same bricks as before at the Respondent's cost and within 90 days of the order. 2Costs in Class 2 proceedings are to be considered under Pt 3 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. 3Part 3 r 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. 4In prayer 4 of the Notice of Motion filed 13 July 2011, the Applicant seeks an order her legal and consultant's costs of the proceedings be paid by the Respondent. Her solicitor states that she seeks her expert (arborist, engineer, surveyor) and legal (solicitor's) costs, which total $9,926.00 as identified in her affidavit of 29 July 2011. The order in the Notice of Motion states that orders are sought on an indemnity basis. Indemnity costs should not be lightly sought in any proceedings given the presumption that the usual costs order is on the basis of party and party costs. Indemnity costs were not pursued at the hearing by the Applicant's solicitor.