Harrison & Anor v Neuer & Anor (No 2) [2015] NSWLEC 1375

Land and Environment Court New South Wales

Medium Neutral Citation: Harrison & Anor v Neuer & Anor (No 2) [2015] NSWLEC 1375 Hearing dates: 16 June 2015 Date of orders: 16 September 2015 Decision date: 16 September 2015 Jurisdiction: Class 2 Before: Registrar Gray Decision: 1. The applicants pay the respondents' costs in the sum of $3164.77. 2. The applicants pay the respondents' costs of the telephone attendance on the hearing of the notice of motion on 16 June 2015, as agreed or assessed. Catchwords: COSTS: Whether it was fair and reasonable to award costs, whether the applicants were unreasonable in commencing and carrying on the proceedings; whether it was necessary for the respondents to engage legal representation. Legislation Cited: Civil Procedure Act 2005 Land and Environment Court Rules 2007 Trees (Dispute Between Neighbours) Act 2007 Cases Cited: Fox v Ginsberg (No 3) [2011] NSWLEC 139 Harrison & anor v Neuer & anor [2015] NSWLEC 1098 Robson v Leischke [2008] NSWLEC 152 Category: Costs Parties: Mr Robert Harrison (First Applicant) Ms Jennifer Harrison (Second Applicant) Mr Mark Neuer (First Respondent) Ms Robyn Neuer (Second Respondent) Representation: Mr Robert Harrison (Applicant) (Litigant in person) Mr James Kay (Respondent)

Solicitors: Falvey Kay Lawyers (Respondent) File Number(s): 20910 of 2014

Judgment 1. On 29 October 2014 the applicants lodged an application under the Trees (Dispute Between Neighbours) Act 2007 ("the Trees Act") seeking orders concerning a tallowwood tree situated on the boundary of their property and the property to the rear. Following a number of directions hearings, the proceedings were dealt with by an onsite hearing conducted by Commissioner Fakes on 15 April 2015. In Harrison & anor v Neuer & anor [2015] NSWLEC 1098, the judgment given following the hearing, the Commissioner dismissed the application on the basis that the tree was not wholly or principally located on the respondents' land. This is a threshold issue required to be satisfied for the Land and Environment Court to have jurisdiction to make orders under the Trees Act. The respondents, by way of notice of motion filed 13 May 2015, now seek their costs of the proceedings. That application is supported by the affidavits of Mr Kay sworn on 11 and 21 May 2015.