Dimitrios Michos & Another v Council of the City of Botany Bay

EX TEMPORE Judgment 1This is my fourth judgment in these proceedings. The Court has published three other judgments: on 8 June 2012, the principal judgment; 20 June 2012, a judgment dealing with the final form of orders, excluding costs; and on 9 July 2012, a judgment dealing with questions of costs: Dimitrios Michos & Another v Council of the City of Botany Bay [2012] NSWSC 625; Dimitrios Michos & Another v Council of the City of Botany Bay (No 2) [2012] NSWSC 1464; and Dimitrios Michos & Another v Council of the City of Botany Bay (No 3) [2012] NSWSC 1465. 2The matter comes to Court today on the defendant's motion for a stay of order 3 of the orders made on 20 June 2012. Order 3 required the installation of a root barrier at the boundary of the plaintiffs' and the defendant's property by 23 November 2012. The defendant now seeks additional time to install the root barrier and to remove the trees. The defendant's motion dated 22 November 2012 came before the duty judge last Thursday on an ex parte basis. On that day stay orders were made. But they were then dissolved on Friday 23 November. So the situation now is that the Court's order 3 of 20 June 2012, that by 5pm on 23 November 2012 the defendant install an effective root barrier of the kind described, has not been complied with. I am not making that finding in the context of a charge of contempt of Court. I make the finding on the balance of probabilities for the purposes of the current application. 3In substance the defendant now seeks to vary the orders made on 20 June 2012 to ait their implementation, although in a way that is perhaps broader than might have been expected. The orders of 20 June 2012 contemplated that there would be a root barrier installed which, together with the restraint in order 2 of that day's orders, would prevent the roots of the existing fig trees from further penetrating into the plaintiff's property. But, in the course of investigating compliance with the Court's orders, the defendant has gone back to Mr Baxendale the consulting engineer who gave evidence in the principal proceedings and as well has engaged Mr Taylor, an arborist, to obtain further reports to guide the council. 4These reports provide a sufficient basis, Mr Jones submits, and in substance Mr Davidson concedes, for the conclusion that the safest and best course in the circumstances is for the subject fig trees now to be removed, rather than for them to be constrained in the way that the 20 June 2012 orders contemplated. Due to some procedural difficulties within Botany Council in obtaining the necessary instructions, when the matter came before the Court today, Mr Jones, for the Council, was not able today to apply for the removal of the trees. But he properly indicated on the matters raised in the motion that if Mr Davidson were to submit that the appropriate relief in the circumstances of this new evidence was that the Court could vary its orders and now order the removal of the trees, that that is a course that it would be difficult for him to oppose, on the expert evidence now gathered. 5I do not need to go into the detail of that additional expert evidence. But I am satisfied that the additional evidence shows that a health and safety risk exists for citizens of the Municipality of Botany and in particular to persons such as the plaintiffs and others living in the immediate environment of these three fig trees in Eastlakes, if the Court's orders are executed in their original form. The health and safety risk to these people would be generated from the construction of a root barrier, without the trees' removal. 6On 20 June 2012, the Court granted liberty to apply in relation to the carrying out of those orders. I regard the current application as within that liberty to apply. I will now make orders varying the orders of 20 June 2012 to provide for the removal of the trees. 7But despite this new consensus, there are a number of other issues which have been raised between the parties which I will resolve one by one. First though I should say, though, that the Court was surprised to see that its orders made on 20 June 2012 for the installation of the root barrier were only the subject of an application to the duty judge last Thursday. That was the day before compliance was due. The report of Mr Baxendale is only dated 15 October, the report of Mr Taylor is only dated 24 October, both within four or five weeks of the date, 23 November, when the work was due to be completed. 8These experts were only instructed on 4 October 2012. Personnel within the Council have been sick and unable to attend to the compliance with the orders of the Court. But the fact that it took approximately three and-a-half calendar months after the making of the Court's orders before the experts were even engaged either shows want of due regard for the seriousness of those orders or a degree of systematic inefficiency within the Council that, notwithstanding the sickness of individual persons, needs attention. 9Despite the delay in bringing this matter to the Court, both Mr Jones and the solicitor for the Council and Mr Davidson and Mr Connolly and the solicitor on behalf of the plaintiffs have dealt with the matter today with commendable efficiency, to achieve the result that we do not have to come back to Court again in this matter. I now go to the individual issues. 10Mr Jones is moving on Order 3 of the defendant' Council's motion of 22 November 2012. But after the submissions made, the Court will make slightly different orders, which orders have emerged in part from the parties' recent consensus. 11First, Mr Davidson in effect faces a choice: whether to seek to vary the orders made on 20 June 2012, which require performance of those orders by 23 November 2012; or whether to accept that the orders should now be varied to give the defendant more time to comply with Order 3. Without prejudice to his rights to pursue the defendant for any contempt that may exist up to this point, Mr Davidson now concedes there should be a variation of the existing orders. 12The next issue is the length of the root barrier now required. The Court will vary order 3 made on 20 June 2012 by deleting the words "23 November 2012" and substituting there for the words "3 April 2013" and deleting all words after the word "property". This reflects that the solution which is now proposed, the tree removal and replacement by other trees, means that a full length root barrier, but one of less depth, would now be appropriate in the circumstances. 13The 20 June 2012 orders will be varied to add an order that the defendant will by 13 April 2013 remove the "Trees", including their stumps, as "Trees" are defined in those 20 June 2012 orders. The plaintiffs submit that that this additional order should include removal of all the tree roots in the nature strip. But it seems to me that such an order may create too onerous a burden in the circumstances. Moreover the permanent injunction in the existing Order 2 is sufficient to restrain any deleterious effect of tree roots that remain on the defendant's land. 14The next debate was about the form of an order for the defendant to plant replacement trees. The Council advanced words to describe what was to be planted as "appropriate replacement street trees". But these words seem to me to be too vague. Any order in these terms would be too difficult to enforce. Instead of these words I will make an order in the form that the defendant will by 1 May 2013 in lieu of the Trees, plant replacement trees which are unlikely to cause root incursion into the plaintiff's property. This formula has advantages. The plaintiffs sought a mandated process of consultation in respect of the choice of those replacement trees. But given the existing poor relationships between these parties I am not sure that any such consultation is likely to be effective. 15A better result is more likely to be achieved by requiring the defendant to select trees which are unlikely to cause root incursion into the plaintiff's property. I will grant liberty to apply. If there is continuing disagreement about the selection of replacement trees, then the parties can come back to Court and make further application. 16The next issue is that of costs. With commendable insight and with considerable efficiency Mr Jones has responded to an exchange with the Court about the surprising delay for which the defendant was responsible in the implementation of the Court's 20 June orders. Mr Jones has agreed with Mr Davidson that the defendant will pay the plaintiff's costs of the current applications in this matter on 23 November and 27 November 2012 on an indemnity basis. That is appropriately agreed. No criticism could be offered of the defendant's representatives in the circumstances for agreeing to a result which in my view was likely in any event. 17But to ensure that all costs issues are resolved as quickly as possible in the interests of both parties, I will grant leave to the plaintiff to bring before the Court and returnable on Friday 7 December 2012 at 9.30am, any application under Civil Procedure Act, s 98 for the payment of those indemnity costs on a lump sum basis. 18If advantage is to be taken of that leave a plaintiffs' memorandum of fees must be issued straight away and responded to straight away by the defendant, so that the issue can be defined. The Court's granting this will leave I hope act as encouragement to both sides to resolve any issues between them about the quantum of the awarded indemnity costs. 19Mr Davidson also asks the Court to re-open the costs orders in respect of the whole proceedings which I made on 9 July 2012. I refused then to make an indemnity costs order in the plaintiffs' favour in the whole proceedings; but only from 25 July 2011. His submission now is that in light of the expert evidence recently obtained that the Court's time was wasted in the main hearing. He says that the parties should not have been arguing about anything other than tree removal, which seems now to have been so easily established by the supplementary expert reports. Mr Davidson says that, after all, the plaintiffs sought tree removal right from the beginning. 20Mr Jones contests this. He says that new experts have now been obtained and that explains the defendant's changed position. This not a dispute I have to resolve now. But I do not regard myself as having jurisdiction to deal with that dispute. I have determined the question of costs. I granted liberty to apply in respect of the carrying into effect of the 20 June 2012 orders. I have effected a limited variation to those orders today. But I do not regard myself as at liberty generally to reopen the costs orders that were previously made. If Mr Davidson or Mr Jones wishes to re-argue questions of costs they will need to do so in the Court of Appeal. If and when that issue is raised in the Court of Appeal, this material presumably will be fresh evidence which can be deployed in that forum. 21I will then make the following orders:- Orders made by the Court on 20 June 2012 be varied as follows: 1.Vary order 3 made on 20 June 2012 by deleting the words "23 November 2012" and substituting there for the words "3 April 2013" and deleting all words after the word "property". 2.The defendant by 3 April 2013 shall remove the Trees as defined in the orders of 20 June 2012, including their stumps. 3.The defendant by 1 May 2013, in lieu of the trees, shall plant replacement street trees for the trees being removed, which replacements are unlikely to cause root incursion into the plaintiffs' property. 4.The defendant by 3 April 2013 shall install an effective root barrier as close as possible to the outside line of the current boundary fences on the Plaintiffs' property (the Property). 5.The Defendant to pay the Plaintiffs' costs of the application in this matter on the 23rd November 2012 and 27th November 2012, on an indemnity basis. 6.Grant liberty to apply.