Fox v Ginsberg

EX TEMPORE Judgment 1This is an application for costs in Class 2 proceedings made by the Applicant in relation to a tree dispute under the Trees (Disputes Between Neighbours) Act 2006 (the Act) determined in Fox v Ginsberg [2011] NSWLEC 1204 ( Fox No 1 ). At issue were three trees (T1, T2, T3) in the Respondent's back yard and their impact on the masonry brick wall which is on the boundary of the Applicant and Respondent's respective properties in Woollahra. The Applicant's land is lower than the Respondent's land; the circumstances are identified in Fox No 1 at [2]. The Commissioners made orders dismissing the application to remove T2 and T3 on the basis the Court did not have the necessary jurisdiction under the Act as no damage resulting from these trees was demonstrated. In relation to T1, the Commissioners accepted that this could remain as it was important to the protection and privacy of the Respondent's house. They observed that it was obvious that damage was caused by T1 to the masonry brick wall on the boundary and this was confirmed by the engineering reports the respective parties relied upon. The Commissioners made detailed orders requiring the disassembling and removal of the existing wall, cleaning of bricks, trimming of the tree roots and dead wood from T1 and T2, replacement of the wall in accordance with engineering plans and with the wall to be clad with the same bricks as before at the Respondent's cost and within 90 days of the order. 2Costs in Class 2 proceedings are to be considered under Pt 3 r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) as provided for in s 98 of the Civil Procedure Act 2005 (the CP Act). Section 98 of the CP Act provides: (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. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. 3Part 3 r 3.7 of the Court Rules provides: (1) This rule applies to the following proceedings: ... (b) all proceedings in Class 2 of the Court's jurisdiction, ... (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. (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. 4In prayer 4 of the Notice of Motion filed 13 July 2011, the Applicant seeks an order her legal and consultant's costs of the proceedings be paid by the Respondent. Her solicitor states that she seeks her expert (arborist, engineer, surveyor) and legal (solicitor's) costs, which total $9,926.00 as identified in her affidavit of 29 July 2011. The order in the Notice of Motion states that orders are sought on an indemnity basis. Indemnity costs should not be lightly sought in any proceedings given the presumption that the usual costs order is on the basis of party and party costs. Indemnity costs were not pursued at the hearing by the Applicant's solicitor.

Evidence 5The Applicant read the following affidavits in chief: affidavit of Mr Sattler, Applicant's solicitor, dated 13 July 2011 (par 14 - 20 - which I note are essentially submissions), and two affidavits of Mrs Fox dated 30 May 2011 and 29 July 2011. In reply the Applicant read her affidavit dated 10 August 2011. The Respondent read her affidavits dated 23 May 2011 and 4 August 2011. 6A relevant chronology which is a summary of key events referred to in the numerous affidavits follows. Date Event 10 - 11 years ago Applicant complained to the Respondent about the trees and crack in the wall. The Respondent disputes that the crack in the wall was existing at this time and that the Applicant complained about it. About mid 2002 Applicant wrote a letter to the Respondent complaining about the trees and a crack in the wall. The Respondent disputes that the crack in the wall was existing at this time and that the Applicant complained about it. 7 years ago Applicant wrote a letter to the Respondent complaining about the trees and a crack in the wall. The Respondent disputes that the crack in the wall was existing at this time and that the Applicant complained about it. 5 - 6 years ago Respondent noticed a small crack on her side of the wall. 3 years ago (2008) Respondent noticed that the crack was starting to become more significant and realised the wall might need to be replaced. 9 February 2010 Applicant wrote to the Respondent requesting that she discuss the serious damage to the rear adjoining fence. June 2010 Respondent made an offer via telephone message to replace the masonry wall with a timber fence. 18 June 2010 Applicant wrote a letter to the Respondent refusing the offer made via telephone message to replace the masonry wall with a timber fence ( Offer 1 ) because it would not be in keeping with the style of the house and the tree is so large that it would knock over a wooden fence. 2 July 2010 Applicant consulted Woollahra Municipal Council tree officer inquiring about removal of privet trees. 21 July 2010 Applicant received reply from Woollahra Municipal Council stating that they would only consent to the removal of the trees after receiving a Tree Preservation Order application with the owner's consent. Between 21 July 2010 and 6 September 2010 Woollahra Municipal Council compliance officer, Mr Host, inspected the brick wall. 6 September 2010 Woollahra Municipal Council served on the Applicant and the Respondent a notice of intention to give an order pursuant to s 121B of the Environmental Planning and Assessment Act 1979 that under the guidance and supervision of a structural engineer they must repair the masonry wall. This was a consequence of a council inspection of the boundary wall which revealed bulging resulting in structural failure of the boundary wall at the rear of the Applicant's property. 5 October 2010 Inspection carried out by the Respondent's structural engineer, Mr Smith of Serrao Smith Consulting Engineers, of the site in Woollahra. 27 October 2010 Applicant's structural engineer, Mr Benitez of VDM Consulting Engineers, carried out an inspection of the site in Woollahra. 10 November 2010 Applicant's structural engineer's report (Smith report) prepared. 13 November 2010 Respondent's structural engineer's report (Smith report) dated 10 November 2010 sent to Respondent only. 13 November 2010 Applicant's structural engineer's report prepared (VDM report). 24 November 2010 Applicant's solicitor wrote to Respondent advising that legal proceedings would be commenced within 21 days of the letter, the proposed orders sought, and that if the Respondent were able to agree to the terms within that period, costs of the proceedings would be minimised. 15 December 2010 Respondent's then solicitor wrote to the Applicant offering to replace the masonry wall with a timber paling fence and to pay 50 per cent of the cost. ( Offer 2 ) 1 February 2011 Mediation conducted by the Community Justice Centre, at the suggestion of the Woollahra Municipal Council, unsuccessful. 25 February 2011 Applicant commenced Class 2 proceedings. 2 April 2011 Respondent wrote letter to Applicant's solicitor referring to his email of 25 February 2011, in which he had indicated that the matter may still be resolved by negotiation and agreement, advising that she would also prefer for the matter to be settled prior to hearing. If the Applicant agreed to discontinue the proceedings, the Respondent stated she would remove one of the trees subject of the Class 2 application, make arrangements for a qualified builder to remove and replace the boundary wall with a timber fence and pay 100 per cent of the cost. ( Offer 3 ) 24 May 2011 The Respondent opposed the orders sought by the Applicant and proposed orders and alternative orders annexed to her affidavit filed on 24 May 2011. The proposed orders were as follows: firstly, that the brick wall and footing is to be disassembled and removed under the supervision of a qualified builder, secondly, that the Respondent pay 100 per cent of the cost of removing the brick wall and footing, thirdly that the brick wall is to be replaced by a suitable timber fence constructed so as to enable the two privet trees to remain in situ, fourthly, that the Respondent pay for 100 per cent of the cost of the replacement timber fence and fifthly, access for the work to be carried out be shared by between the parties. The proposed alternative orders differed in that the brick wall was to be replaced by a suitable masonry wall constructed to enable the two privet trees to remain in situ and the Respondent was to pay 75 per cent of the cost of that wall. Applicant received a copy of Respondent's structural engineer's report (Smith report) for the first time when she received the Respondent's affidavit filed on 24 May 2011 attaching it. 16 June 2011 Hearing and decision in Fox No 1 .

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