Endicott v Esther (No 2) [2015] NSWLEC 1466

Land and Environment Court New South Wales

Medium Neutral Citation: Endicott v Esther (No 2) [2015] NSWLEC 1466 Hearing dates: 5 November 2015 Date of orders: 18 November 2015 Decision date: 18 November 2015 Jurisdiction: Class 2 Before: Registrar Gray Decision: 1. The notice of motion filed on 28 August 2015 is dismissed. 2. Each party pay their own costs of the proceedings and of the notice of motion filed on 28 August 2015. Catchwords: COSTS: Tree dispute; trees pruned after application lodged; offer of settlement made; applicant not given opportunity to discontinue on reasonable terms. Legislation Cited: Land and Environment Court Rules 2007, r 3.7 Trees (Dispute Between Neighbours) Act 2006, Pts 2, 2A Cases Cited: Endicott v Esther [2015] NSWLEC 1290. Category: Costs Parties: Timothy Endicott (Applicant) Marielle Esther (Respondent) Representation: Solicitors: Mr Endicott, litigant in person (Applicant) Mr Comino (Respondent) File Number(s): 20353 of 2015

Judgment 1. The respondent seeks its costs of proceedings under the Trees (Dispute Between Neighbours) Act 2006 ('Trees Act') commenced by the applicant concerning trees located on the respondent's property. Those proceedings were heard at an onsite hearing conducted by Acting Commissioner Galwey on 28 July 2015, following which the Acting Commissioner dismissed the application. By a notice of motion filed on 28 August 2015, the respondent now seeks an order that the applicant pay the respondent's costs of defending the application. The notice of motion initially sought orders for the payment of indemnity costs for a certain period, but the order for indemnity costs is no longer sought. 2. The notice of motion is supported by the affidavit of Mr John Comino dated 27 August 2015, and in its application the respondent also relies on affidavits filed by her in the proceedings. Mr Endicott, the applicant, has also filed an affidavit concerning the question of costs. 3. The exercise of the Court's discretion to award costs is subject to the provisions of rule 3.7 of the Land and Environment Court Rules 2007. This provides, at r 3.7(2) that "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." In r 3.7(3), the rule sets out some of the circumstances in which the Court might consider it reasonable to award costs. These circumstances reflect the principles set out by Justice Preston, Chief Judge of the Court, in Grant v Kiama Municipal Council [2006] NSWLEC 70. A number of the circumstances described in r 3.7(3) are relied on by the respondent in their submissions on this application.