McLaren v Lewis (No 2) [2011] NSWLEC 176

Land and Environment Court New South Wales

Medium Neutral Citation: McLaren v Lewis (No 2) [2011] NSWLEC 176 Hearing dates: 7 September 2011 Decision date: 07 September 2011 Jurisdiction: Class 2 Before: Preston CJ Decision: The Court orders: 1. Mr Lewis' notice of motion filed 25 July 2011 is dismissed. 2. There is no order as to costs of and in relation to that notice of motion. Catchwords: Costs - proceedings seeking pruning of high hedge obstructing view - proceedings unsuccessful - successful respondent seeks costs - respondent a litigant in person - costs claimed not "costs" within meaning of costs rules - proceedings in Class 2 of Court's jurisdiction - no order as to costs unless fair and reasonable in circumstances - respondent not establishing that fair and reasonable to order costs. Legislation Cited: Civil Procedure Act 2005, s 98(1) Land and Environment Court Act 1979, s 18(g) Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006, s 14B Cases Cited: Cachia v Hanes (1994) 179 CLR 403 McLaren v Lewis [2011] NSWLEC 1170 Category: Costs Parties: Mrs S McLaren (Applicant) Mr G Lewis (Respondent) Representation: Mrs S McLaren (Applicant in person) Mr G Lewis (Respondent in person) File Number(s): 20007 of 2011

EX TEMPORE Judgment

A successful party applies for costs 1Mr Lewis was the successful respondent to an application by Mrs McLaren under s 14B of the Trees (Disputes Between Neighbours) Act 2006 "( Trees Act") that Mr Lewis prune twelve trees along the boundary between Mrs McLaren's and Mr Lewis' properties. The Court heard the application on site at Bonny Hills on 13 April 2011. At the conclusion of the hearing the Court reserved its judgment. On 28 April 2011, the Court dismissed Mrs McLaren's application: see McLaren v Lewis [2011] NSWLEC 1170. The Court found that the trees that formed a hedge did not severely obstruct views from Mrs McLaren's property and that the trees that did severely obstruct views from Mrs McLaren's property did not form a hedge: [31], [32]. 2Mr Lewis seeks by notice of motion dated 20 June 2011, but not filed in court until 25 July 2011, an order that Mrs McLaren pay his costs as enumerated in Annexure 1 to the notice of motion. These costs are mileage allowance for driving his car between Noosa in Queensland (where he resides) to Bonny Hills (where his rental property is)(1,645km x $0.74 = $1,217.30); three nights accommodation in or near Bonny Hills ($225); food ($200); his time spent in preparing documents (9 hours x $60 per hour = $540); his travel time (104.5 hours x $20 per hour = $2,090); his appearance time at the hearing (2.5 hours x $60 per hour = $150); and the filing fee for his notice of motion for costs ($180), giving a total of $4,602.30.