Harrison & Anor v Neuer & Anor

The substantive proceedings

1. The tree dispute application named a number of respondents to the proceedings. It also relied on both Part 2 and Part 2A of the Trees Act. Part 2A of the Trees Act concerns obstruction to sunlight or views by trees that form a hedge. Although it appears that the applicants were referring to a hedge on or adjacent to the boundary, no evidence was filed in support of that part of their application and none of the orders sought in the application concerned those trees. The orders sought in the application ranged from orders requiring the respondents to maintain the tallowwood tree, orders seeking removal of the tree, and orders for compensation.
2. Prior to the first directions hearing, on 11 December 2014, the solicitor for the respondents wrote to the applicants setting out a number of issues in relation to the application. That letter is annexed to the affidavit of Mr Kay sworn 11 May 2015 and clearly set out the relevant provisions of the Trees Act that allowed proceedings to be brought to the Court. At pages 1 and 2 of the letter the respondents' solicitor provides as follows: "[W]e confirm that section 7 of the Act permits an owner of land to apply to the Court for an order "as a consequence of a tree that is situated on adjoining land." Relevantly, section 4(3) of the Act says that a tree is situated on land "if the tree is situated wholly or principally on the land." On your own evidence, it is clear that the Tallowood tree the subject of your application is principally situated on your land - not on adjoining land - and, as such, you are unable to make an application in relation to this tree"
3. The letter then goes on to quote a number of relevant cases on this point, and encloses extracts from the decision of the Court in Robson v Leischke [2008] NSWLEC 152. The letter quotes paragraph 155 of the Chief Judge's decision in Robson v Leischke as follows: "But (the Act) is also restrictive in that the joint owner on whose land the tree is principally located cannot make application to the Court for an order in relation to the tree."
4. The letter then makes some observations in relation to the claims under Part 2A of the Trees Act, and then at page 3 of the letter, the respondents' solicitor states as follows: "It is clear that you have no basis to make an application to the Court in relation to the Tallowwood tree as it is situated principally on your land. If you proceed with your application in this respect, then the Respondents will rely on a copy of this letter in seeking an order that you pay their legal costs on an indemnity basis upon your application being dismissed."
5. The proceedings then took a course through a second and third directions hearing, the chronology in relation to which is outlined at [9]-[30] of the judgment of Commissioner Fakes and I adopt the content of those paragraphs. I highlight these aspects of that chronology:

• At the first directions hearing before the Assistant Registrar on 15 December 2014, the issue concerning the location of the tree was raised both in the context of a threshold jurisdictional issue and in relation to who ought to be the respondents in the proceedings. The proceedings were adjourned for the applicants to obtain a survey to determine where the tree was located.
• The Assistant Registrar wrote to the applicants on 8 January 2015 outlining the issues raised at the first directions hearing as well as informing the applicants of the direction made for them to provide a current survey.
• On two separate occasions, 8 and 27 January 2015, the Manager of Client Services with the Court registry responded to correspondence from the applicants by indicating that the Court could not provide certain advice and encouraging the applicants to seek independent legal advice.
• The matter proceeded to a second directions hearing before the Assistant Registrar on 19 January 2015 and a third directions hearing before the Senior Commissioner on 16 February 2015. At the third directions hearing, orders were made allowing the applicant to file an Amended Application naming only Mr and Mrs Neuer as the respondents in the proceedings.
• Throughout the proceedings, the applicants relied on a sketch survey of October 2009 and an addendum to that survey dated 14 January 2015. The addendum referred to a need to excavate the area around the tree to determine upon what property or properties the tree is located when considered at natural ground level. The respondents refused requests by the applicants to access the property and/or to carry out the excavation.
• At the third directions hearing, the Senior Commissioner offered to make an order allowing the applicants to access the respondents' property in order to carry out excavation around the tree, subject to the applicant undertaking to make good any work or damage done in carrying out the excavation. The applicants refused to give that undertaking, and as a result an order was not made.
• Prior to the hearing, the applicants had survey pegs placed at the boundary of the two properties.

1. The proceedings came before Commissioner Fakes at an onsite hearing on 15 April 2015. In her judgment, the Commissioner outlined the nature of the threshold issue and, following consideration of the history of the proceedings and her observation of the location of the tree, determined that the tree was principally located on the applicants' property. At [30]: "With the arboricultural expertise I bring to the Court, I observed nothing unusual in the form of the tree to suggest that it originated on the respondents' property and has somehow grown radically asymmetrically towards the applicants' property. The attached photograph clearly shows root buttresses on the applicants' land near the bottom of the embankment which would indicate that the base of the tree on that side is close to natural ground level. In my opinion even allowing for the increase in soil level as a consequence of the embankment, there is nothing to indicate that the tree is other than principally on the applicants' land."
2. The Commissioner also found that the survey and the addendum were of little assistance and in dismissing the application, the Commissioner stated as follows (at [39]): "On the evidence before me I am not satisfied that the tree the subject the application is wholly or principally on the adjoining land, being the respondents' land and the tree is therefore not a tree to which the Trees Act applies. To that end, the Court has no jurisdiction to consider any other elements of the applicants' claim."
3. The respondents were at all times represented by Mr Kay of Falvey Kay Lawyers, who also represented the other respondents prior to their removal as respondents in the proceedings.

Costs Application

1. The discretion to award costs arises under section 98 of the Civil Procedure Act 2005. In Class 2 proceedings, that discretion must be exercised in accordance with rule 3.7 of the Land and Environment Court Rules 2007. Rule 3.7(2) provides that "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." Rule 3.7(3) sets out a number of circumstances in which the Court might consider that it is fair and reasonable to make an order for costs.

Submissions

1. In seeking an order for costs, the respondents rely on the circumstances set out in rule 3.7(3)(c) and (f). The respondents submit that in accordance with rule 3.7(3)(c) the applicants acted unreasonably in circumstances leading up to the commencement of the proceedings, and that in accordance with rule 3.7(3)(f) the applicants commenced and continued the proceedings without reasonable prospects of success or where to do so was unreasonable.
2. The respondents submit that the applicants commenced the proceedings without ascertaining whether or not the tree the subject of the proceedings was "wholly or principally" on the respondents' land. They submit that given that this a threshold issue, the applicants should not have even commenced the proceedings without first determining that the subject tree was situated wholly or principally on the respondents' land. The respondents say that the if the applicants had obtained a survey report addressing this issue prior to making the decision to commence proceedings, then the time and expense incurred by the respondents in responding to the application could have been avoided.
3. The respondents also say that they put the applicants on notice that they would need to establish that the tree was situated "wholly or principally" on the respondents' land by way of their letter of 11 December 2014. The respondents say that the applicants were again made aware of the issue at the first directions hearing. The respondents submit that in circumstances where the applicants were on notice of the issue and failed to obtain a survey report that showed that the tree was principally located on the respondents' land, it was unreasonable for the applicants to continue to pursue their application. Further, the respondents say that the placement of the survey pegs by the applicants prior to the hearing also clearly revealed that the tree was located principally on the applicants' land. Given that this threshold issue was raised early in the proceedings and was the issue that ultimately resulted in the dismissal of the proceedings, the respondents submit that they were therefore unreasonably put to the cost of dealing with the application. The respondents say that in circumstances where the application raised this threshold issue and where the actual originating process contained multiple attachments totalling around 100 pages, it was reasonable for them to obtain legal representation. The respondents therefore say that the costs of legal representation, which are set out in the affidavit of Mr Kay sworn 21 May 2015, ought to be reimbursed by the applicants. The costs are in the amount of $4747.16, including GST and disbursements of $450.
4. The first applicant, Mr Harrison, represented himself in the proceedings and also appeared on behalf of the second applicant, Mrs Harrison. Mr Harrison disputes the findings of the Commissioner in relation to the location of the tree and the ground level used to make those findings, and makes a number of submissions on the costs application. Those submissions are variously contained in affidavits filed by him on 27 and 29 May 2015, letters addressed to the Court dated 9 and 16 June 2015 and also submissions made orally at the hearing of the application. I have considered those submissions and there are a number of those submissions worth noting.
5. Firstly, the applicants submit that the Court allowed the proceedings to continue based on the surveys and so therefore it was reasonable for the applicants to continue their claim. Secondly, the applicants say that the respondents should have had the proceedings re-listed to deal with the threshold issue so that the parties were not put to the time and cost of having the proceedings dealt with through to finality. In that respect the applicants rely on paragraph 6 of the Practice Note - Class 2 Tree Applications, which provides that: "If any party reasonably considers that compliance with this practice note will not be possible, or will not be conducive to the just, quick and cheap resolution of the tree application, the party should apply to be relieved from compliance on the basis that an alternative process will be more conducive to such resolution." The applicants submit that this means that the respondents ought to have proposed an alternative process. The applicants submit that such a proposal would have been consistent with the parties' obligations to mitigate costs in accordance with paragraph 8 of the practice note: "Parties are to ensure that all directions which they seek with respect to tree applications will assist in enabling such applications to be dealt with at the final hearing with as little formality and technicality, and as quickly as the requirements of the Trees Act and of every other relevant enactment and as the proper consideration of the matters before the Court permits."
6. Thirdly, the applicants submit that the respondents could have made an offer to have the proceedings resolved earlier. The applicants also submit that the issue of the maintenance of the tree is still ongoing and has not been resolved by these proceedings, and therefore the applicants ought not be put to the cost of reimbursing the costs of the respondents when they should also take responsibility for the tree. Finally, the applicants submit that the respondents would have achieved the same result without legal representation, and therefore the applicants should not have to reimburse the respondents for those legal costs.

Consideration

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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."
8. 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.
9. 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.
10. 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.
11. 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.
12. 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

Amendments 18 September 2015 - Typographical changes DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2015