Low v Elliott

CASES CITED: Low v Elliot [2007] NSWLEC 809 Yang v Scerri [2007] NSWLEC 592

APPLICANT Mr R O'Gorman-Hughes SOLICITOR Bray Jackson & Co LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton SOLICITOR Bartier Perry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 Her Honour: In Low v Elliot [2007] NSWLEC 809, handed down on 21 November 2007, Commissioner Hoffman and Acting Commissioner Fakes held that the jurisdiction of the Court was not enlivened under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Disputes Act) because they were not satisfied the five trees in issue on the Respondent's property were likely to cause damage to the Applicant's property in the near future and dismissed the Applicant's appeal. 2 The Respondent now seeks her costs of the proceedings under Pt 3 r 3.7 (r 3.7) of the Land and Environment Court Rules 2007 (the Court Rules). The Court Rules are referred to in s 98 of the Civil Procedure Act 2005 as relevant to consider on costs. Section 98 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 Rule 3.7 concerns "Costs in certain proceedings". It 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, … (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.

4 The application commencing these proceedings was filed on 27 August 2007. The decision Yang v Scerri [2007] NSWLEC 592 was handed down on 31 August 2007. In that decision Commissioners Brown and Hoffman and Acting Commissioner Fakes set out a principle applicable in tree disputes that "likely in the near future to cause damage" in s 10(2)(a) should be applied on the basis of 12 months being a reasonable "rule of thumb". 5 Subsections (a), (d), (e) and (f) of r 3.7(3) were relied on by the Respondent's counsel. The affidavit of Kim Elliot sworn 4 March 2008 was read which identified the legal costs and arborist and engineering expert costs incurred in relation to the proceedings. 6 The Respondent referred to the arborist report of November 2007 filed by the Applicant which referred to the possibility of damage from the five trees on the Applicant's property in the future (time unspecified) and also, as the Applicant's counsel referred to, assessed risk from the five trees in issue at a ranking of "8" when "10" suggests that immediate removal is necessary.

7 The Respondent also relied on an engineering report of Rafeletos Zanuttini dated 29 October 2007 filed by the Applicant which stated that the masonry wall and footings may experience cracking and movements within five years because of the trees. The parties' respective engineers prepared a joint report which recorded that no evidence of damage to the garage or wall was found.

8 The Respondent's arborist, Mr Castor, also prepared and filed a report. This stated that two of the trees may cause some problems in five years and the others in about 15 years or more. The report also referred to the decision in Yang. 9 It was also submitted that the correspondence attached to the application filed in Court discloses that the Applicant acted for an improper purpose in commencing proceedings.

10 The Applicant's counsel submitted that this matter does not fall within r 3.7(a) as it does not involve a preliminary question of law or fact as it is really a merit issue which is at the heart of most tree dispute applications. To award costs therefore would mean that costs would be likely to be applied for in many cases in the future. Further the 12 month period in relation to s 10(2)(a) of the Trees Disputes Act identified in Yang was only a "rule of thumb" and could be extended where necessary, as was recognised in that judgment. None of the other sections in r 3.7 apply in the circumstances. Finding 11 The general presumption in relation to costs in Class 2 proceedings in this Court is that there be no order as to costs. Costs are only awarded under r 3.7(2) if it is fair and reasonable to do so in the circumstances. Some of the circumstances which might be considered to justify an award of costs on this basis are identified in r 3.7(3).

12 Section 10 of the Trees Disputes Act provides: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 13 Section 10 identifies several matters which must be satisfied before the Court can make an order under the Trees Disputes Act. The determination of whether they are satisfied will be a preliminary question of fact undertaken by the Court before it can consider the merits of a particular matter by taking into account the matters referred to in s 12 of the Trees Disputes Act. Rule 3.7(3)(a) arises as the question of fact which is determinative of the proceedings was decided against the Applicant in the Commissioners' findings before the evaluation of the merits of the application was undertaken. This suggests that r 3.7(a) applies in this case given that the Court dismissed the appeal because s 10(2)(a) was not satisfied.

14 Given that Yang was not handed down until after the application was filed and could not therefore be known to the Applicant or her legal representatives at the time of filing, it is arguable that the likelihood that s 10(2)(a) of the Trees Disputes Act would not be satisfied was not known until some time later. It was certainly made known when the report of Mr Castor, arborist, was served as he referred specifically to it.

15 Subsection (f) of r 3.7(3) also arises as, at the time Mr Castor's report was served, it should have been obvious to the Applicant and her representative that the matter should not have proceeded further. There is no suggestion in the Commissioners' judgment that the argument was put that an extension of the twelve month "rule of thumb" period specified in Yang to, for example, five years, was appropriate. 16 I consider therefore that a partial costs award should be made in the Respondent's favour from the date of filing of Mr Castor's report which was 13 November 2007.

17 While improper purpose in the commencement of the proceedings has been alleged (r 3.7(e)), based on correspondence attached to the Class 2 application, I do not accept that is the case given the report of the arborist filed by the Applicant in support of the application. That report suggests there was an issue concerning the trees. Nor do I consider r 3.7(d) arises.

18 In the circumstances it is fair and reasonable that the Applicant pay the Respondent's costs of the proceedings from 13 November 2007. As the Respondent has been partially successful in her costs application she should also have her costs of this costs application.

19 It is desirable that a specific amount of costs be awarded and the parties' advice as to the appropriate amount is sought so that a figure can be included in the final orders. The parties are to notify the Court of a specific amount of costs by 4.00 pm Tuesday 11 March 2008.

17/03/2008 - Legal representatives incorrectly identified - Paragraph(s) Coversheet

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