Curtis v Pranatajaya

Category: Costs

Parties: John Simon Curtis, Applicant (Respondent on the Notice of Motion)
Winardi Pranatajaya, Respondent (Applicant on the Notice of Motion)

Representation: Counsel:
L Waterson, Applicant (Respondent on the Notice of Motion)
A M B Cornish, Respondent (Applicant on the Notice of Motion)
Solicitors:
MathasLaw, Applicant (Respondent on the Notice of Motion)
Tebbutt Lawyers, Respondent (Applicant on the Notice of Motion)

File Number(s): 2024/00317004

Publication restriction: No

JUDGMENT

Nature of Proceedings

1. These proceedings relate to a claim for costs by Mr Pranatajaya for an unsuccessful application by Mr Curtis under the Trees (Dispute Between Neighbours) Act 2006 (NSW) (Trees Act).

2. In dismissing Mr Curtis’s application in Curtis v Pranatajaya [2024] NSWLEC 1837 (Primary Judgment), Galwey AC found that Pt 2A of the Trees Act did not apply, the trees the subject of that application did not severely obstruct Mr Curtis’s view and avoiding interference with the trees outweighed a remedy to prevent view obstruction: see Primary Judgment at [41].

Background Facts

3. In the proceedings to which the Primary Judgment relates, Mr Curtis filed a Class 2 application on 27 August 2024 (the Primary Proceedings) for:

4. Orders under s 14D of the Trees Act, for the removal of palm trees on Mr Pranatajaya’s land (Trees Claim); and

5. Declaratory relief under s 16(1A) of the Land and Environment Court Act 1979 (NSW) (LEC Act), that an existing covenant required the restriction of height of any plant on Mr Pranatajaya’s land (Declaratory Relief).

6. The Declaratory Relief claim was not pressed during the Primary Proceedings: see Primary Judgment at [6].

7. The facts in [1]-[8] of the Primary Judgment are adopted and are not repeated here.

8. By Notice of Motion filed on 20 January 2025, Mr Pranatajaya seeks orders as to costs on the following terms (the Motion):

(1) Order that the applicant, Mr John Curtis, pay the respondent’s, Mr Winardi Pranatajaya’s, costs of the proceedings in the sum of $53,229.91.

(2) In the alternative to paragraph 1, order that the applicant, Mr John Curtis, pay the respondent’s, Mr Winardi Pranatajaya’s, costs of the proceedings as agreed or assessed.

(3) Such further or other order as the courts deems fit.

Evidence at the Costs Hearing

7. On 3 March 2025, the Motion was heard. Mr Pranatajaya read the affidavit of David Roy Tebbutt, sworn 20 January 2025 and tendered a bundle of documents exhibited to that affidavit.

8. Mr Pranatajaya also tendered a letter issued by David Tebbutt (Mr Pranatajaya’s solicitor) to MathasLaw (Mr Curtis’s solicitor), dated 12 November 2024, relating to the negotiation of a proposed settlement agreement.

9. Mr Curtis read the affidavit of Angelos Mitchell Mathas sworn 13 February 2025 and tendered a bundle of documents exhibited to that affidavit.

Applicable Principles

10. The Court’s discretionary power to award costs is conferred by s 98(1) of the Civil Procedure Act 2005 (NSW) (CP A****ct):

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act—

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

…

11. The Land and Environment Court has made rules relating to ordering costs in certain proceedings, such as at present. The Court’s power to award costs in accordance with the Land and Environment Court Rules 2007 (NSW) (LEC Rules) are well understood: Simo Popovac v Dominic Kennedy [2022] NSWLEC 9 (Popovac) at [26]-[35]; Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 *(*Dunford No 3) at [30]; Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116 (Moorebank) at [10]-[14]; Marks v Perham (No 2) [2020] NSWLEC 84 (Perham) at [22]-[30]; Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125 (Sansom) at [48].

12. Rule 3.7 of the LEC rules are applicable to Class 2 proceedings. Rule 3.7(2) of the LEC Rules provides:

(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.

13. Rule 3.7(3) of the LEC Rules provides:

(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.

14. The presumption in r 3.7(2) of the LEC Rules is underpinned by the “no discouragement principle”, in which a person “generally should not be discouraged from exercising their rights of appeal via the prospect of an adverse costs order”: Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 (Arden) at [10]; Sansom at [22]-[23].

15. The determination of whether it is “fair and reasonable” to make an order for costs involves the making of a judgment which involves an evaluative process that confers a wide degree of discretion: see Sansom at [51].

16. The factors identified in r 3.7(3) of the LEC Rules are neither prescriptive nor exhaustive, instead they may inform the Court’s discretion, and may also rebut the presumption in r 3.7(2): see Dunford No 3 at [30].

17. The circumstances in r 3.7(3) of the LEC Rules upon which Mr Pranatajaya contends as being relevant is r 3.7(3)(a), (d) and (f)(i).

18. As is provided for in the Class 2 Practice Note and the Tress Act, Class 2 proceedings are intended to be a quick, just and cheap in the resolution of tree disputes between neighbours. In Fox v Ginsberg (No 3) [2011] NSWLEC 139 (Ginsberg) at [9], Pain J articulated this principle:

Class 2 proceedings are intended to provide a cost effective and efficient means of delivering justice in tree disputes between neighbours within the limits identified by the Act. The presumption is that each party will pay his or her own costs and that is an important presumption in Class 2 proceedings when considering what is fair and reasonable. It is preferable that parties represent themselves rather than engage a lawyer and reduce the need for expert reports wherever possible…

19. The considerations of the Court are required to be “...of sufficient weight to overcome the presumptive rule” in r 3.7(2) of the LEC Rules: see Arden at [9].

20. Robson J in Perham at [30] articulated the task of the Court in determining whether to award costs under r 3.7 of the LEC Rules as follows:

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.

Mr Pranatajaya’s Submissions

21. Mr Pranatajaya contended that an order for payment of his costs was fair and reasonable in the circumstances of the case, on the basis that:

22. The Declaratory Relief sought by Mr Curtis rendered these proceedings “distinct” and it was therefore reasonable for Mr Pranatajaya to engage legal representation: Harrison & Anor v Neuer & Anor (No2) [2015] NSWLEC 1375 (Harrison) at [13] and [25]. The Declaratory Relief sought was without reasonable prospects of success and was abandoned prior to the final hearing. Despite other complexities of the Primary Proceedings, the requirement for legal representation could have been avoided. The features of an application may render the retention of legal representation reasonable and for an order for costs to be made in relation those costs incurred: Harrison at [23]-[26].

23. The reason for the failure of the Trees Claim as identified in the Primary Judgment involved threshold issues that supported an order for costs. The reasons for refusal of the Trees Claim were jurisdictional to the Courts power. The failure to establish matters of which the Court must be satisfied to make orders engaged r 3.7(3)(a) of the LEC Rules and characterised the award of costs as fair and reasonable: Moase v MacMahon [2011] NSWLEC 13 at [20] and Lowe v Elliot [2008] NSWLEC 111 at [13].

24. As a subsidiary matter of limited weight, Mr Curtis failed to engage constructively in settlement negotiations and failed to accept multiple offers. The unreasonableness on the part of Mr Curtis was said to arise from the insistence on a 3m height limit applying to all plants on Mr Pranatajaya’s property and the imposition of additional terms.

Mr Curtis’s Submissions

22. Mr Curtis opposed the Motion, as neither the Primary Judgment nor his conduct supported the displacement of the presumption against making an order for the award of costs. The Court would be “slow” to determine the present circumstances as being of sufficient weight to displace the presumption: The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 115 (Evagelakos) at [46]; Popovac at [33] and Carey v Pattinson (No 2) [2020] NSWLEC 177 at [8].

23. To determine whether an order for costs is “fair and reasonable”, for the purpose of r 3.7(2) of the LEC Rules, it is appropriate to consider (1) the Primary Judgment; and (2) the conduct of the parties before and during the proceedings: Perham at [30], Evagelakos at [47] and Popovac at [34]. The findings of Galwey AC did not suggest that the proceedings had no prospects of success; were doomed to fail; or that Mr Curtis’s position was unreasonable. Instead, the Acting Commissioner’s consideration of all three issues indicated that the task of balancing interests under s 14E(2)(b) of the Trees Act was highly evaluative in nature, to which reasonable minds might differ.

24. The characterisation of Trees Claim as jurisdictional should not be accepted, rather there is no distinction under the Trees Act between jurisdictional issues and the evaluation of the merits of an application. The issues considered in relation to the Trees Claim, were the issues required by the Trees Act and do not engage r 3.7(3)(a) of the LEC Rules.

25. The Declaratory Relief claim did not require legal representation, nor was there a substantial amount of time devoted to the issue. Notwithstanding the withdrawal of the claim for a declaration, the factual matters relating to the restrictive covenant remained relevant to the determination of the other issues in contention: see [42] of the Primary Judgment.

26. Reasonable efforts were made to reach agreement, and Mr Pranatajaya did not dispute this: see [11] of the Primary Judgment. The evidence demonstrated that both parties attempted to settle the Primary Proceedings.

27. Both parties were legally represented during the Primary Proceedings, as is noted at [5] of the Primary Judgment and there are no findings in the Primary Judgment or in the evidence, as to unreasonable conduct by either party.

Findings

28. There is no evidence before the Court or in the Primary Judgment that suggests that the Declaratory Relief claim and any considerations ancillary to it, rendered these proceedings complex or “distinct” to the ordinary course of proceedings under the Trees Act. Whilst the application sought the relief it would have been obvious upon a reading of the Trees Act and the LEC Act that such relief was beyond power in these proceedings.

29. Whilst it is preferrable that litigants are self-represented, the decision to engage legal representation is ultimately one for the parties. In this case, both parties had legal representation throughout the course of the Primary Proceedings. The mere fact that legal representation was engaged does not support the displacement of the presumption.

30. I do not accept that the Declaratory Relief claim amounts to a threshold failure, as the claim was abandoned: see Primary Judgment at [6]. Whilst the Acting Commissioner found at [42] of the Primary Judgment, that the Court could not make a finding in relation to that claim, it cannot be considered a threshold failure in the circumstances that Mr Pranatajaya no longer pressed that claim.

31. Further, mere failure to achieve the relief sought under the Trees claim would not, of itself, indicate that it would be fair and reasonable to award costs. The Acting Commissioner’s considerations in relation to that claim were merely discharging the evaluative matters as required by the Trees Act. Whilst a positive finding, as a consequence of an evaluative exercise, was required to enliven the jurisdiction to make orders, such is not of itself a matter to which r 3.7(3)(a) of the LEC Rules relates.

32. I do not accept that the evidence disclosed that Mr Curtis failed to engage constructively in settlement negotiations. The evidence before the Court and in the Primary Judgment, indicates a process of negotiation between both parties. Ultimately, those settlement negotiations did not result in the resolution the Primary Proceedings, this does not, however, evidence a failure to engage. To the contrary, the Acting Commissioner found at [11] of the Primary Judgment that “Mr Pranatajaya does not dispute that Mr Curtis made a reasonable effort to reach agreement...”.

33. The Primary Judgment and the evidence before the Court, is not indicative of unreasonable conduct during the hearing of the Primary Proceedings. Whilst I accept that the Declaratory Relief claim was abandoned during the course of the Primary Proceedings, it is not of “sufficient weight” to displace the presumption in r 3.7(2) of the LEC Rules.

34. Accordingly, there is no evidence before the Court in relation to the conduct of either party, before or during the Primary Proceedings, that would displace the presumption against an order for costs.

Costs of the Motion

35. Mr Pranatajaya sought costs of the Motion.

36. Mr Curtis submitted that each party are to bear their own costs of the Motion.

37. Having found against the award for costs in the Primary Proceedings, I find it appropriate in the circumstances that each party pay its own cost of the Motion.

Conclusion

38. Having regard to the Primary Judgment and the conduct of the parties before and during the Primary Proceedings, I do not accept that the making of an award for costs is fair and reasonable in the circumstances. The principles associated with making an award for costs in Class 2 proceedings are well understood and for the reasons as set out above, the presumption should prevail.

Orders

39. For the reasons as set out above, the Court makes the following orders:

40. The Notice of Motion filed on 20 January 2025 is dismissed; and

41. Each party is to pay their own costs of the Notice of Motion.

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