Harrison & Anor v Neuer & Anor

Consideration

I accept that the applicants acted unreasonably in commencing and carrying on the proceedings. Those circumstances fall squarely within those outlined in rule 3.7(3)(f) as being appropriate circumstances in which the Court might consider it fair and reasonable for a costs order to be made. Although the applicants represented themselves in the proceedings, there is a large volume of information available both online and that can be obtaining in writing from the Court in relation to commencing proceedings under the Trees Act. The information package concerning tree disputes, entitled "Trees Act - Understanding the Law" as well as the annotated Act, clearly set out at pages 2 and 5 respectively that the tree must be located "wholly or principally" on the respondents land in order for the Court to have jurisdiction to consider whether the tree has causing, is causing or is likely to cause damage to property or injury to persons. That information is readily available on the Court's website and also provided by registry staff to prospective applicants. Whilst it is unclear whether the applicants had access to this information prior to the commencement of the proceedings, it is clear from information readily available to prospective applicants that the location of the tree "wholly or principally" on the respondents' property is a threshold issue of fact that must be satisfied prior to the proceedings being properly commenced within the Court's jurisdiction.
Even if the first applicant was unaware of the threshold issue that the tree must be "wholly or principally" on the adjoining land, he was made aware of this issue by letter to him dated 11 December 2014 and also by the Assistant Registrar at the first directions hearing in the proceedings on 19 December 2014. To the credit of the respondents' solicitor, the letter of 11 December 2014 sets out very clearly the relevant provisions of the Trees Act and the relevant case law. It does so in a manner that is informative and helpful to a litigant in person. Further, at the first directions hearing the proceedings were adjourned for the very purpose of enabling the applicants to obtain survey information to enable them to establish that the tree was wholly or principally on one or more of the respondents' land, and for the applicants to consider which of the respondents to proceed against. If there was any doubt about what occurred at that directions hearing, it was made clear by the correspondence sent on behalf of the Assistant Registrar on 8 January 2015.
Notwithstanding the applicants being made aware of this issue, they did not furnish any evidence that established that the tree was located principally on the respondents' property. Rather, the photo annexed to the judgment of Commissioner Fakes clearly shows that having regard to the survey pegs the tree is located principally on the applicants' property.
The applicants were therefore on notice early in the proceedings of the threshold issue that they were required to satisfy in order to trigger the Court's jurisdiction in relation to trees that are likely to cause damage to property or injury to persons. To carry on the proceedings beyond receipt of that notice by letter of 11 December 2014 and beyond the first directions hearing on 15 December 2014 without furnishing any evidence that the tree was principally located on the respondents' property was clearly unreasonable. Twice it was suggested to the applicants that they obtain legal advice, yet they continued to pursue the application without doing so and without any evidence that the tree was located on the respondents' property.
I do not accept the applicants' submission that the fact that the tree remains an issue means that there ought not be a costs order. What the applicants are saying is that they commenced the proceedings to seek to solve a problem, and they feel unsatisfied in that the Court was unable to solve that problem. What they failed to realise is that the Court is not the forum for resolving concerns about a tree on a boundary and principally located on their own land. The very fact that the Court could not solve their problem is the reason why this costs application is made. It also cannot be said that there should have been some sort of gatekeeper that stopped the Court progressing the application based on the fact that jurisdiction had not been established. The Court is not a forum for receiving complaints about the maintenance of trees. Rather, the Court's role is to adjudicate on disputes under the Trees Act that have been commenced by an applicant within its jurisdiction. The location of a tree, and whether or not it is principally located on the respondents' property, is not always easily ascertained and cannot necessarily cause the application to be rejected for filing in the registry. In commencing and carrying on the proceedings, it was a matter for the applicants to establish the fact that the Court had jurisdiction, which they ultimately failed to do.
The applicants also submit that this threshold issue could have been a ground for the respondents to seek to dismiss the proceedings early in the course of the proceedings. Whilst this is true, what the respondents did instead was to give the applicants every opportunity to establish that the threshold jurisdictional fact could be met. Despite being given these opportunities, as well as being given the opportunity to benefit from an order by the Senior Commissioner to allow access for excavation, the applicants failed to adduce any evidence that the tree was principally located on the respondents' property. Further, given that the respondents did not rely on expert evidence in the proceedings, the costs of the proceedings progressing to a hearing was not significantly more than the costs that would have been incurred had the respondents made an earlier application for dismissal of the proceedings. The fact that the respondents did not make an application for the proceedings to be dismissed prior to the proceedings progressing to a hearing does not therefore mean that the respondents acted unreasonably in any way such that it would disentitle them from the benefit of a costs order.
There is some merit, however, in the applicants' submission that the same outcome would have been achieved had the respondents not retained legal representation. The point concerning the necessity of legal representation in applications made under the Trees Act is a valid one and was considered by Her Honour Justice Pain in Fox v Ginsberg (No 3) [2011] NSWLEC 139. At [9] Her Honour said: "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." And at [13]: "As stated above, I make no assumption in tree dispute matters that legal representation is essential and I am not satisfied that it was on this occasion. I do not intend any criticism of the Applicant or her solicitor in making this finding but I am emphasising that in matters of this type legal representation is not the norm and will not automatically be compensated."
However, there are several factors in these proceedings that meant that the respondents could not necessarily proceed to defend the application without legal representation. Firstly, the material filed with the application was voluminous. It attaches a number of copies of a survey, together with correspondence between the parties, copy of the registration of an easement, quotations, photographs and invoices. Further, although the orders were specified as relating only to the tallowwood tree, the applicant indicated in the originating process that his application was under both Part 2 and Part 2A of the Trees Act. As set out above, Part 2A concerns hedges that obstruct views or access to sunlight. No material was filed in support of that part of the application. Secondly, the application as filed named 8 different respondents. All of these respondents were the owners of land to the rear of the applicants' property. They were proceeded against because they had the benefit of an easement over Mr and Mrs Neuer's property that ran at the rear of that property along the boundary on which the tree was located.
These factors meant that this was no ordinary tree dispute application that could easily have been dealt with by a respondent appearing in person. Some work had to be done to navigate the volume of material filed and ascertain what issues arose. It was entirely reasonable for the respondents to engage a solicitor to carry out that work.
However, beyond the third directions hearing, at which the other respondents were removed and by which time the jurisdictional issues had been clearly identified and raised in the proceedings, there was no particular reason why the respondents needed to continue to engage legal representation. The issue of jurisdiction would have been immediately apparent to the Commissioner at the hearing even without the respondents having legal representation. In accordance with Fox v Ginsberg (No 3), in applications under the Trees Act legal representation "is not the norm and will not automatically be compensated". I am therefore of the view that whilst the respondents should receive the benefit of a costs order in their favour, it ought not be to the full extent sought. Given the work involved early in the proceedings by the respondents' solicitor I am prepared to award them two thirds of their costs of the proceedings.
It is usually preferable, in circumstances where the quantum of costs is relatively small, that the costs be fixed by the Court to avoid the costs of a costs assessment process. To that end, the respondents rely on the affidavit of Mr Kay of 21 May 2015, which annexes an invoice issued to the respondents in the sum of $4747.16. This invoice includes the costs of preparation of the notice of motion and preparation for the hearing of the notice of motion. The respondents, having been successful on their notice of motion following my determination that the applicants were unreasonable in commencing and continuing the application, ought also to be reimbursed for their costs of the notice of motion. I am of the view that a fair and reasonable quantum for the payment of the respondents' costs, including the costs of preparing the costs application, would be represented by awarding costs in the sum of two thirds of the total invoice issued, being the sum of $3164.77. The applicants should also pay for the respondents' costs of the telephone attendance on 16 June 2015 when I heard the notice of motion.
The orders of the Court are therefore that: 1. The applicants pay the respondents' costs in the sum of $3164.77. 2. The applicants pay the respondents' costs of the telephone attendance on the hearing of the notice of motion on 16 June 2015, as agreed or assessed. Joanne Gray Registrar

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Cases Cited (3)

Cited By (1)