The solicitor for the Pattinsons, Peter Balmann, submitted that the Careys should pay costs because:
1. the proceedings were commenced for an improper purpose;
2. the Careys had acted unreasonably in the circumstances leading up to the commencement of the proceedings by failing to excavate in order to ascertain the cause of the damage alleged; and
3. the Careys had acted unreasonably in commencing or continuing a claim that had no reasonable prospects of success.
Bahlmann could not articulate what the improper purpose was in commencing the proceedings. This is because there was nothing improper, vexatious or vindictive about the Careys bringing their application under the Trees Act. In this context, the comments by Preston J in McLaren v Lewis (No 2) [2011] NSWLEC 176; (2011) 183 LGERA 344 (at [23] and 24]) are apposite:
23 I do not consider the evidence has established that Mrs McLaren's bringing of an application under the Trees Act was vexatious or vindictive. Having brought the application, Mrs McLaren was entitled to have it heard by the Court. I do not consider it vexatious or vindictive to not acquiesce to Mr Lewis' plea that the case be dropped before Mrs McLaren's application had even been heard. The fact that Mr Lewis would need to travel to the hearing for a longer distance or time than might otherwise be the case, because he is an interstate owner, is not a reason why Mrs McLaren should have dropped the case and not have the Court hear her application.
24 The fact that Mrs McLaren was ultimately unsuccessful in her application under the Trees Act is not sufficient in itself. Mr Lewis' bare warnings without substantiation by reference to evidence in the proceedings or reasoning, given only a few days before the hearing, that he considered Mrs McLaren would lose, that she should drop the case but if she didn't drop the case, he would be asking for her to pay his costs, are also not sufficient in the circumstances.
In the proceedings before the Acting Commissioner, and before me, the Careys were not legally represented. Bahlmann's criticism of them on this basis must be rejected. Disputes under the Trees Act are specifically adjudicated with informality to promote the efficient and inexpensive resolution of what are mostly neighbourhood disagreements without necessarily requiring legal representation (Perham (No 2) at [39]). While the Pattinsons retained legal representation, that was a matter for them. That they incurred legal costs as a consequence does not, of itself, engage the Court's discretion to order costs in their favour under r 3.7(2) of the LEC Rules.
Carey v Pattinson [2020] NSWLEC 177 | Case summary | Zoe
As for the complaint that the Careys ought to have excavated to determine the cause of the damage, and that their failure to do so amounted to unreasonable conduct warranting an order for costs, it must be recalled that, as found by Douglas AC, their own expert advised against this course on the basis that it would not "be of any benefit at this time, nor is it appropriate given the context and scale of the issue." In these circumstances, noting that any excavation would have to be paid for by the Careys, their failure to excavate, while resulting in the dismissal of the Class 2 application on the basis that they could not discharge their burden of proof, did not mean that they acted unreasonably. For lay people to rely and act upon the advice of their own engineering expert does not, without more, constitute unreasonable behavior in the commencement or maintenance of their claim. Put another way, the mere failure to establish that the tree was not, contrary to the persistent advice of the engineer that they had engaged, causing the damage alleged was not conduct that would make it fair and reasonable to attract an order to pay the Pattinsons's costs. A different conclusion may have been reached if the Careys's expert had in fact recommended excavation, but the contrary occurred.
Similarly, the Careys's failure to request copies of any structural design plans for the construction certificate "of the house" (it is unclear which house) as suggested in the first Reinco report does not amount to unreasonable conduct in the commencement or maintenance of the proceedings. If the damage was caused by the tree, as Barthelmess persistently opined, then those documents (assuming that the Careys were able to obtain them in a timely manner, or at all) would not have assisted.
The Careys's rejection of the various offers and counter offers put to them by the Pattinsons in an attempt to settle the proceedings was also not unreasonable. As Douglas AC found (a finding with which I cannot cavil), there was a reasonable attempt by the Careys to reach agreement with the Pattinsons (at [18]-[19]). That resolution was not able to be achieved, and the Careys were ultimately not successful, does not mean that their conduct before or during the proceedings was unreasonable.
Finally, it cannot be concluded based on the Reinco reports that the Careys's application had no reasonable prospects of success. The existence of expert evidence to the contrary of that of Reinco (the ATB report and the arborist's report commissioned by the Pattinsons) did not alter this position; it merely gave rise to an evidential contest to be determined by the Acting Commissioner.
In summary, the Pattinsons appear to have misconceived the nature of the Court's discretion to exercise costs in Class 2 of its jurisdiction under the Trees Act. The simple fact that the Careys lost, that their expert evidence was not accepted by the Court, and that the Pattinsons's expert evidence was preferred, does not make it fair and reasonable that the presumptive rule that each party bear their own costs under r 3.7(2) of the LEC Rules be displaced.
It is therefore appropriate to dismiss the Pattinsons's application for costs.
[2]
Costs of the Application
Rule 3.7(2) of the LEC Rules continues to apply to the motion seeking costs which, like the substantive proceedings before the Acting Commissioner, remain within Class 2 of the Court's jurisdiction (Zhang v Davidson (No 2) [2020] NSWLEC 89 at [70] per Robson J).
The question therefore becomes whether or not it is fair and reasonable that the Pattinsons pay the Careys's costs of the motion. However, because the Careys were not legally represented, the issue does not require determination.
[3]
Orders
The notice of motion seeking costs is dismissed. The exhibits are to be returned.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 December 2020
Parties
Applicant/Plaintiff:
Carey
Respondent/Defendant:
Pattinson
Cases Cited (15)
The Pattinsons Seek Their Costs in a Class 2 Tree Dispute
On 23 January 2020 Kelly and Michael Carey ("the Careys") filed a Class 2 application in this Court for the removal of Adam and Leanne Pattinson's ("the Pattinsons") Camphor laurel tree ("the tree").
On 3 September 2020 a hearing in respect of the Class 2 application took place on site at the Careys's property before Douglas AC. The application was dismissed (Carey v Pattinson [2020] NSWLEC 1515).
On 24 November 2020 the Pattinsons filed a notice of motion seeking the following orders:
1. That the Applicants pay the Respondents' costs of the proceedings on an indemnity basis.
2. Alternatively, that the Applicants pay the Respondents' costs as agreed or assessed.
3. That the Applicants pay the Respondents' costs of the Motion.
Costs in Class 2 of the Court's Jurisdiction
The Court's power to make a costs order is conferred by s 98(1) of the Civil Procedure Act 2005, subject to the Land and Environment Court Rules 2007 ("the LEC Rules").
The presumptive rule with respect to costs in Class 2 of the Court's jurisdiction is set out in r 3.7(2) of the LEC Rules:
3.7 Costs in certain proceedings
(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.
The circumstances in which a Court might consider the making of a costs order to be fair and reasonable include the following (r 3.7(3) of the LEC Rules):
3.7 Costs in certain proceedings
(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.
The purpose and operation of r 3.7(2) and (3) of the LEC Rules has been described by Robson J in Marks v Perham (No 2) [2020] NSWLEC 84 in the following way (at [26]-[29]):
26 Although the six indicia contained within in r 3.7(3) may provide some assistance when evaluating whether an order for costs is fair and reasonable, the power exercised by the Court is not confined to these matters and is instead in the broadest of terms. I refer to the comments of Biscoe J in Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 ('Arden') at [9]:
"All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the Court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight."
27 The principles applicable to the Court's exercise of the costs power under r 3.7 of the Court Rules are well-known: Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116 at [10]-[14], Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [30], Burns v St Clair (No 2) [2015] NSWLEC 115 at [9]-[12], McLaren v Lewis (No 2) [2011] NSWLEC 176; (2011) 183 LGERA 344 ('McLaren') at [13]-[17], [21]-[24], Fox v Ginsberg (No 3) [2011] NSWLEC 139 at [9], and earlier, Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15].
28 In considering the application of r 3.7 of the Court Rules, it is apposite to note that the "no discouragement" principle underlies this presumptive rule. Put simply, a person generally should not be discouraged from making or defending an application by the prospect of an adverse costs order: Arden at [10].
29 The no discouragement principle is particularly important in the context of applications made pursuant to the Trees Act, as such applications are subject to the Court's Practice Note Class 2 - Tree Applications which is designed to facilitate the just, quick and cheap resolution of tree disputes through an appropriate and easily accessible procedure.
For the reasons set out in Perham (No 2) (especially at [28]-[29] quoted above) it is rare for the Court to make an award of indemnity costs in Class 2.
In approaching the exercise of its discretion to award costs under r 3.7(2) of the LEC Rules, the Court undertakes the following task (Perham (No 2) at [30]):
30 In approaching the task before me, I consider that it is appropriate, first, to identify whether there is anything within the judgment of the Commissioner which indicates that an order for costs may be fair and reasonable; and second, to look to the conduct of the parties both before and during the hearing for any indication that such an order may be appropriate.
I respectfully endorse and apply his Honour's most useful remarks to the present application.
The Acting Commissioner's Decision
Acting Commissioner Douglas noted that the Pattinsons wanted the tree to be retained because it provided privacy (especially to their daughter's bedroom), shade, and aesthetic amenity. I note that this is inconsistent with the position that was taken by the Pattinsons in their correspondence with the Careys.
The Acting Commissioner referred to the three Reinco reports in his judgment (at [4]-[8]):
4 This initial report, from Mr Anthony Barthelmess, of Rienco Consulting, dated 3 August, 2018 (Exhibit A), noted slight rotation in the wall, which was "not immediate cause for concern", with four potential causes:
(1) Shrinking or swelling of the foundation material, in both yards, which appears to be loose clay - exacerbated by unseasonably dry conditions.
(2) Minor movement of the informal retaining wall in the rear yard of the respondents' property. The footing of the boundary wall appears to be in the zone of influence of the respondents' wall, and as such any movement in their wall will affect the stability of your wall.
(3) The large tree adjacent to the wall in the respondents' yard, the dense, shallow root system of which may be impacting on the applicants' retaining wall, and subsequently the boundary wall, physically, and through exacerbation of reduction in soil moisture.
(4) Possible swelling of backfill material used under the applicants' driveway.
5 With permission, Rienco Consulting accessed the respondents' yard to inspect the wall on 22 August 2018, and provided a second report (Exhibit B) dated 6 December 2018, after a period of three months' higher than average rainfall.
6 Based on negligible impact from this increased rainfall, the shrinking or swelling of loose clay foundation material (cause 'a' in the initial report) was excluded, and responsibility for the retaining wall displacement was subsequently focussed on the tree, with removal recommended.
7 In August 2019, the applicants provided the respondents with a copy of Exhibit B, in response to which the Pattinson's questioned "why an inspection of the foundations of the boundary wall was not the main focus".
8 Rienco Consulting was again commissioned for their opinion, which was provided on 10 September, 2019 (Exhibit C). They stressed that their focus, during two site inspections, was primarily on the wall. The report also suggested that the tree had grown extensively since the retaining wall was installed, and that, in this context, retention of the tree constituted a removal of support to the Pattinson's land, which, based on s 177 of the Conveyancing Act 1919, breached the respondents' duty of care owed to the applicants.
He held, contrary to the submissions of the Pattinsons, that the Careys had attempted to settle the dispute with the Pattinsons as required by s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") (at [18]-[19]):
18 In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [194]-[195], Preston CJ notes:
"194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.
195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
19 Given this context, and the applicants' efforts, I am thus satisfied that there has been an attempt by the applicants to reach agreement with the owners of the land on which the tree is situated, as required by s 10(1)(a).
The Acting Commissioner set out the competing evidence of the various experts. He then made the following observations about the Reinco evidence (at [29]-[30], emphasis added):
29 In August 2018, Rienco Consulting's initial report included a recommendation for the applicants to request copies of any structural design plans for the Construction Certificate of the house, from Wollongong Council. This would likely have provided insight around wall construction compliance, including whether construction met required building Standards. The applicants did not follow this recommendation.
30 Significantly, though Mr Barthelmess conducted two site inspections in the respondents' property, and was encouraged and offered the opportunity to undertake excavation to clarify root presence near the boundary wall, he elected not to. He notes in a letter to the applicants, dated 16 March 2020 (Exhibit D), "though the respondent insinuates that proper investigation would entail excavation, I do not agree that such destructive testing would be of any benefit at this time, nor is it appropriate given the context and scale of the issue".
Nevertheless, because the onus was on the Careys to prove their case, he noted that their "reticence to excavate has not assisted the applicant's position" (at [31]).
The Acting Commissioner's conclusions were as follows (at [33], emphasis added):
33 I have examined the tree and the site and have reached the following conclusions:
(1) Although the applicants' house construction gained certification, insufficient evidence has been provided to clarify whether the boundary wall construction methodology was appropriate, and/ or met required Australian Building Standards.
(2) The ongoing stability of the Pattinson's internal retaining wall, 22 years after construction, plus the relatively slow growth of the tree, suggests that the foundations of this wall have performed the role of a root barrier, likely limiting the spread of roots towards the boundary.
(3) If roots are growing through or under this internal retaining wall, I agree with Mr Vezgoff, that due to the difference in level between the tree base and the boundary retaining wall, the roots will be so deep in the soil that they are unlikely to impact on soil moisture levels near the wall, and also that a 100mm diameter root will not normally damage a concrete footing constructed to Australian Building Standards
(4) If roots are, in fact, growing through or under the internal retaining wall, and up towards the boundary wall, and causing physical damage, substantiating evidence needs to be provided to the court, particularly when the observed crack pattern on the wall, near where roots are most likely to be present, is indicative of subsidence, rather than uplift.
(5) This opportunity was missed by the applicants. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said "…something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage…"
(6) No excavation was undertaken, no roots were found, and thus no valid evidence displaying the causal link between the tree roots, and the boundary retaining wall damage has been submitted in order to advance the applicants case beyond a theoretical possibility.
Accordingly, Douglas AC dismissed the application.