Patane V Singh and Anor [2016] NSWLEC 13

Land and Environment Court New South Wales

Medium Neutral Citation: Patane V Singh and Anor [2016] NSWLEC 13 Hearing dates: 11 February 2016 Date of orders: 11 February 2016 Decision date: 11 February 2016 Jurisdiction: Class 2 Before: Moore J Decision: See [18] and [19] Catchwords: COSTS – fair and reasonable Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Civil Procedure Act 2005 Land and Environment Court Rules 2007 Cases Cited: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Kiama Council v Grant (2006) NSWLEC 96 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 Category: Costs Parties: Robert Patane (Applicant) Rashpal Singh (First Respondent) Paramjit Kaur (Second Respondent) Representation: Counsel: J McIntosh (Applicant) A Gibbons (Respondent)

Solicitors: H Aziz, MIC Lawyers (Applicant) File Number(s): 15/20726 Publication restriction: No

Judgment 1. HIS HONOUR: On 19 August 2015, Mr Patane filed an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders concerning a tree located on the neighbouring property. The matter came before the Court on 21 September 2015 when directions were made, in the standard form, for the provision of evidence including a provision of evidence on behalf of the Respondents. Those directions originally provided, in direction 9, that the Respondents' evidence and proposals for alternative orders be filed and served by 13 October 2015. 2. By agreement, on 23 October, alterations were made to the timetable that required the Applicant to provide his further evidence (if any) by 27 October, being an extension from 6 October, with the evidence to be provided by the Respondents to be provided by 9 November, that being an extension from 13 October. No evidence was filed by the Respondents within that time. 3. The decision was given by Fakes C after a hearing on site. The hearing on site took place on 27 November 2015 with the Commissioner giving her decision. Later that day, she observed (at [40] of her decision): The hearing commenced on site. The inspection of the site, viewing of evidence and making of submissions concluded at about 10.15 am as both parties had engaged counsel. I stated that in the interests of keeping costs to a minimum I would deliver my findings and the orders by telephone at 1.45 pm that day. She proceeded to do so - the remainder of her remarks concerning an application for an adjournment during that 1.45 pm telephone hearing not being relevant on the present application. 1. The Applicant in this motion, who is a respondent in the substantive proceedings, filed a Notice of Motion on 8 December 2015 seeking an order for costs in his favour in the amount of $7,650. That amount represents, as disclosed in the penultimate page of the material appended to the affidavit of the Respondent in the substantive proceedings/the Applicant on the motion, the full actual costs for which he had been invoiced on 30 November 2015. That is, that the application was made for an indemnity costs gross sum order. A gross sum costs order is permissible pursuant to s 98(4) of the Civil Procedure Act 2005 but is, in the ordinary course of events, made on the basis of a party-party order with a discount for the avoidance of the necessity for the engagement of an assessment process. 2. After I raised that matter with Ms Gibbons of counsel for the Applicant on the Motion, she sought instructions; sought leave to amend the application to delete the nominated amount; and substitute that there be an order for costs as agreed or assessed. Ms McIntosh, counsel for the Applicant in the proceedings/Respondent on the motion, did not object to that amendment. Leave was granted. 3. There are a number of matters that require to be considered as to whether or not it is fair and reasonable to make a costs order in favour of the Applicant on the motion, because, as is required by the Land and Environment Court Rules 2007, costs orders in Class 2 matters within which Trees Act applications fall (amongst a range of other matters in the Court's jurisdiction), do not have a Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 presumption that costs follow the event, but there is an assumption that each party will bear their own costs unless it is "fair and reasonable" to depart from that position and make some further order. 4. The nature of the sorts of matters that might be engaged in considering what principles would go to exercising the discretion to make a costs order in such circumstances were set out by Preston CJ in Kiama Council v Grant [2006] NSWLEC 96; 143 LGERA 441. Essentially, in a matter such as this, the position has to be that the application was proceeded without any attempt to either engage in negotiation with the other side or without any proper evidentiary foundation for the application. 5. On the inspection of the site as undertaken by the Commissioner, in this case a very experienced arborist amongst other things (who has heard, to my knowledge, many hundred tree cases during the period since the Act commenced in 2007), the information included what she was able to glean from the application of her technical expertise during the course of the site inspection. 6. There are therefore three matters that I take into consideration: 1. First, the Commissioner observes at [5] of her decision that she was satisfied that there had been a reasonable effort made by the Applicant to reach agreement with the Respondents and that as a consequence the relevant statutory test set out in s 10(1) of the Trees Act was satisfied. There is no evidence that would cause me - and indeed consistent with the decision of the High Court in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, there is no basis upon which I could appropriately seek - to reagitate that finding of the Commissioner. 2. Second, as the Commissioner observed during the course of her decision, at [9] to [14], she dealt with a report that had been obtained by the Applicant in the substantive proceedings from a structural engineer, Mr Bishoy Mikhail, where that report had been provided and included in the application filed. 3. Subsequently, a separate affidavit had been sworn on 14 October. Mr Patane had relied, at the hearing, on Mr Mikhail's report and affidavit. 1. The Commissioner sets out, relevantly, at [12] of her decision, the terms of that report - a short document. That document discloses, for the purposes of the proceedings with which I am now dealing, the fact that a structural engineer had provided information to the Applicant that at least prima facie provided a foundation for an application to be made under the Trees Act. That affidavit appears to have been provided as the report in the original application and therefore was on notice to the Respondents in the proceedings, and was separately provided as part of the affidavit sworn on 24 October which appears, from the Commissioner's decision (by inference) to have been provided within the amended timetable agreed to and noted by the revised directions made by the Assistant Registrar. 2. The Commissioner's decision then demonstrates, in [19], that the Respondents "obtained their own engineer's report from Mr Greg McDonald, a civil engineer" (Exhibit 3). He inspected the site on 24 November, three days before the hearing and after the garage had been removed. The date that appears on the Court's records as the filing of Mr McDonald's affidavit is the day before the hearing. 3. At the hearing, it is clear that the Commissioner engaged with and made determinations about the differences in opinion between Mr Mikhail and Mr McDonald. She also, as she sets out in the decision, brought her own arboricultural expertise to the proceedings. She sets out what she ascertained from her inspection of both the Applicant on the Trees Act application's property and the material that she saw when she inspected the English Oak tree on the Respondents' property. The Commissioner sets out material not only as I have earlier mentioned from Mr Mikhail's report, but also sets out material from Mr McDonald's report. 4. It is clear that the Commissioner preferred the material that was provided by Mr McDonald and that that resulted as a combination of that material and her professional skill brought to the site in her concluding that the application should be dismissed. 5. There is no suggestion in her decision that the proceedings should never have been contemplated by the Applicant. 6. Indeed as she observes, the Applicant clearly relied on professional advice from a consulting engineer that was obtained prior to and provided the foundation for bringing the proceedings. 7. The fact that the Applicant failed is no reason to depart from the presumption against an order for costs. 8. Indeed, the extent that the evidence was provided on behalf of the Respondents to the application very late, on the death knell as it were of the hearing, is a further indication that Mr Patane was reasonable in maintaining the proceedings. 9. Indeed, if there was any unreasonableness in conduct in the proceedings, the Applicant on the motion would do well to consider the mote in their own eye before contemplating the beam in Mr Patane's eye. 10. The necessary consequence is that the application for costs is dismissed. 11. As is customary in these proceedings, this being a procedural motion, costs follow the event on the motion for costs. Costs are awarded in favour of Mr Patane as agreed or assessed. I so order.