HIS HONOUR: On 25 June 2021, Ms Feng filed an application pursuant to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders that Ms Feng (the Applicant) sought in her Tree Dispute Application, set out on page 3 of that document, concerned two vegetation elements growing on the neighbouring property owned by Ms Giannantonio (the Respondent) - these were bamboo growing in the vicinity of the fence between the two properties and the fronds that were said to fall from palm trees growing on the Respondent's property.
The orders sought:
1. Removal of the encroaching bamboo and installing a suitable root barrier to prevent future encroachment onto the Applicant's property;
2. Second, to reinstate the existing dividing fence in a proper and workmanlike manner by a licensed contractor, addressing damage that was said to have been occasioned by bamboo; and
3. Finally, an order that, at such regularity as was determined by the Acting Commissioner who heard the Trees Dispute Application, there be pruning of the fronds of the palm trees that were at risk of falling on the Applicant's property.
The matter was assigned by the Chief Judge to Acting Commissioner Douglas; the Acting Commissioner heard the matter on 14 October 2021 and gave a brief extemporaneous decision.
The Applicant now seeks an order that the Respondent pay her costs of the proceedings.
I have a transcript of that extemporaneous decision in evidence before me, as it is appended to the affidavit of Ms Manugaran, solicitor for the Applicant, at folio 53 and onwards of the annexures to her affidavit.
The Acting Commissioner made a number of findings:
1. First, he made the finding that, although the damage to the fence might be minor, there was such damage, and that that damage engaged the terms of s 10(2)(a) of the Trees Act because the bamboo had caused damage to the Applicant's property; and
2. He also made a finding, with respect to the risk of injury to the Applicant potentially to be caused by the falling of fronds from the palm trees, that there was a likelihood of such injury - thus engaging s 10(2)(b) of the Trees Act.
Feng v Giannantonio [2022] NSWLEC 74 | Case summary | Zoe
At this point, it is appropriate to note that Mr Giannantonio, who appears as the agent for the Respondent in these proceedings, had filed a Defence on 20 September 2021 in the proceedings - a copy of that Defence being Exhibit 1 on the present costs application before me. I have carefully read, during this morning's adjournment, that Defence. It was, I am advised, apparently uncontroversially in evidence before the Acting Commissioner, and he considered it. It is obvious that he considered it because, during the course of the hearing, the transcript records that the Acting Commissioner drew to the Respondent's attention the fact that the risk of injury addressed by s 10(2)(b) of the Trees Act is not confined to being a risk of injury in the near future, and that the submissions, by inference, that were made by Mr Giannantonio in paragraphs 26 to 29 of his written Defence proposing that there was no risk of injury in the near future as a consequence of past pruning undertaken by the Respondent in April 2016 and March 2021, meant that there was no basis upon which the Acting Commissioner should order any intervention with respect to the fronds of the palm trees.
The Acting Commissioner said:
I would just like to bring to your attention, Mr Giannantonio, in relation to injury it is not in the near future; damage is in relation to previous damage, current damage or damage in the near future. In relation to injury, it is injury whatsoever, it is not limited by Yang v Scerri, a Tree Dispute decision at [2007] NSWLEC 592, which established, I observe, the Tree Dispute principle that the appropriate rule of thumb for the near future with respect to property damage was 12 months from the date of the hearing.
The Acting Commissioner clearly indicated that there was a risk of injury from palm fronds, and that it was a risk that, on the evidence that was before the Acting Commissioner, led him to reach a conclusion that, notwithstanding past pruning of the palms, it was appropriate to make an ongoing pruning order - one that was contained in Order 5 of the Acting Commissioner's Orders, being that:
The Respondent at her expense shall prune the dead fronds from palms growing behind the brush fence close to the boundary at least every two years, with the next pruning due prior to April 2023.
The basis upon which the Defence advanced by Mr Giannantonio, on behalf of the owner of the property, was founded on a clear and specific misunderstanding and misreading of the terms of the provision in s 10(2)(b) of the Trees Act. It is also the position (as has also been here advanced) that there was some potential responsibility based on what was said to be the observation in a decision of this Court entitled Barker v Kyriakides [2007] NSWLEC 292 (Barker v Kyriakides) - one which set out a tree dispute principle that has been consistently applied by this Court, at [20]. That paragraph, and the tree dispute principle, are in the following terms:
20 It is now appropriate to state the principles in more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:
For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for removal or, or intervention with, such a tree."
The tree dispute principle in Barker v Kyriakides did not, and could not, encompass the falling of large, dead palm fronds from a palm tree.
In this case, there has been extensive correspondence, which I do not need to canvass, between the Applicant, on the one hand, and the Respondent, on the other, concerning the elements in the Trees Dispute Application concerning the fence, the bamboo and matters associated with the fence and the bamboo. It is not necessary for me to go into the detail of those. The Acting Commissioner found, as set out in his decision, that the Applicant had made a reasonable attempt, as required by the Trees Act, to seek to resolve the matters between the parties - that being a requirement in s 10(1)(a) of the Trees Act.
I am similarly satisfied that, with respect to the bamboo and the fence, there has been a history of reasonable responses on behalf of the Respondent to the proceedings to engage with the Applicant in an endeavour to settle matters relating to the bamboo and the fence.
However, I am not satisfied that there was any attempt whatsoever for the Respondent to endeavour to settle the element of the Trees Dispute Application that was made in relation to the palm. It is possible, as discussed in James v Surf Road Nominees [2004] NSWCA 475, to apportion questions of costs as appropriate.
In these circumstances, I am satisfied that the failure of the Respondent to the proceedings to engage concerning the palm tree did constitute, for the purposes of the special costs' regime provided for by r 3.7 of the Land and Environment Court Rules 2007, a circumstance where it is fair and reasonable to make an element of a costs order because the Respondent maintained a defence to the proceedings, that is, with respect to the palm trees, one where the claim or defence did not have any - let alone reasonable - prospects of success.
Under those circumstances, it is fair and reasonable to make some costs order against the Respondent. However, that costs order ought not encompass the entirety of the Applicant's costs of the proceedings. It is, as I have indicated, permissible to apportion costs, depending on the basis of the outcome of the proceedings. I am satisfied that, given the succinct nature of the Acting Commissioner's discussion in his decision of 14 October 2021, that I could conclude that, at maximum, the issue of the fronds falling from the palm trees, and the necessity for the Acting Commissioner to make orders in that regard, would constitute, at most, 50% of the elements that the Acting Commissioner needed to determine during the course of the proceedings.
When I requested the parties to this hearing to give me an estimate of the costs that would be involved if I were to make a costs order (either in favour of the Applicant for legal costs or in favour of the Respondent for photocopying costs), I was advised that the Applicant's legal costs were, including the costs of these costs proceedings, a little over $20,000.
I am satisfied that, pursuant to s 98 of the Civil Procedure Act 2005, it is appropriate to make an apportioned costs order in favour of the Applicant and that it is appropriate to make that as a gross sum costs order to avoid the necessity for an assessment process to be engaged, or further negotiations to be engaged, if I made the conventional "as agreed or assessed" costs order.
On the basis that half of the legal costs of the Applicant in these proceedings were a little over $10,000, having regard to my view of the appropriate apportionment between the parties at the substantive hearing, and in light of the fact that there has only been partial success by the Applicant in these costs proceedings, I am satisfied that it is appropriate to make an apportioned costs order. In doing so I make it modestly below the conventional range for discounting for such an order to take account of the fact that there is only a partial success in these costs proceedings.
I am satisfied, under the circumstances, that it is appropriate to order the Respondent to pay the Applicant costs in the gross sum of $5,000 in satisfaction of the appropriate order for costs to be made of the proceedings before the Acting Commissioner and the costs of these costs proceedings.
The orders that I make, therefore, are:
1. The Respondent is to pay the Applicant costs in the gross sum of $5,000;
2. Those costs are to be paid within 28 days of the date of these orders.
[2]
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Decision last updated: 24 June 2022