Moase v MacMahon

Land and Environment Court (NSW)|2011-02-10|Before: Pain J

EX TEMPORE Judgment 1Mrs MacMahon, the Respondent, has filed a Notice of Motion seeking costs in the amount of $3,220. The substantive proceedings were an appeal by the Applicants under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). Various orders were sought in relation to the removal of several large branches of the very large fig tree on the Respondent's property overhanging the Applicants' property, the erection of a root barrier across the northern side of their lawn, seeking compensation for the removal and replacement of concrete paving, part of a driveway and a low brick wall, and raising concern about injury to persons. The matter was heard and determined by a commissioner of this Court on 20 May 2010: Moase v MacMahon [2010] NSWLEC 1123. The Commissioner dismissed most of the Applicants' claims and refused to make a number of orders sought. The Respondent was represented by her solicitor and Mr Moase, one of the Applicants, spoke for them both. 2The Applicants commenced proceedings with a tree dispute application seeking compensation for property damage, to rectify or prevent property damage and contending that there was risk of injury to people. Supplementary forms for damage to property, compensation and risk of injury to people were also filed. Compensation was claimed in the amount of $33,729. 3Costs in Class 2 proceedings are to be considered under 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. 4Rule 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.

The Commissioner's decision 5The judgment records at [17] that much of the material in the application related to the use of the tree by fruit bats and the resulting work required to clear bat droppings and fruit. Concern about contracting viruses from the bats was also raised. At [18] the judgment records that in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98 Preston J held that damage to property or injury to a person caused by a tree did not include any damage or injury caused by animals attracted to a tree. Other cases which have held similarly are referred to at [19] and the Commissioner concluded that the Court did not have jurisdiction to make orders to alter the tree because of its use by bats. 6At [20] - [21] the Commissioner considered decisions of the Court which have held that leaf and fruit drop will not generally be a basis for ordering the removal of or intervention with an urban tree and held she should apply these in this matter. The Commissioner considered whether there was relevant property damage at [22] - [36] as required under s 10(2) of the Trees Act and held at [46] that the section was satisfied on the balance of probabilities only for the two most northern of the concrete slabs directly above the exposed root. She was not satisfied in relation to the other aspects of the damage alleged to have been caused to the driveway, other areas of concrete slab and the low brick wall. She also considered the likelihood of injury from falling branches was low given the history of the tree, as identified at [40] of the judgment. 7In relation to damage to property the claim form filed by the Applicants identified at par 1(a) - (i) the damage alleged, much of which related to the use of the tree by bats. Partial orders were made by the Commissioner in relation to 1(a) only. The total compensation sought by the Applicants according to the Commissioner's judgment was $31,548. None was awarded. 8Orders were made by the Commissioner on 20 May 2010 as follows: 1.The application for the pruning of the tree and associated compensation is dismissed. 2.The application for the installation of a root barrier and the associated compensation is dismissed. 3.The application for repair of the driveway is dismissed. 4.The application for the replacement of the low brick wall is dismissed. 5.The application for reimbursement of the botanist's fee is dismissed. 6.The application for the replacement of the concrete slab pool surrounds is allowed in part. 7.The applicants are to obtain 3 quotes for the removal and replacement of the most northerly section of concrete at the north-western end of the pool between the high brick wall of the garage and the excavated area. This section is composed of 2 slabs and is approximately 4 - 5 square meters in area. It includes the section closest to the wall with the storm water inlet and the section closest to the excavation. The quotes are to show the cost of replacing the sections without reinforcement. The respondent is to pay 50% of the cheapest quote. If the applicants wish to have the concrete reinforced, this must be a separate item on the quotes. 8.The three quotes are to be provided to the respondent directly or through her solicitor within 21 days of the date of these orders. 9.The respondent, either in person, or through her solicitor is to notify the applicants of the choice of quote within 14 days of the receipt of the quotes. 10.The respondent is to pay the applicants the amount specified in order 7 within 21 days of the receipt of a tax invoice for the completed works. 11.The works are to be completed within 6 months of the date of these orders otherwise orders 7 - 10 lapse.

Evidence 9The Respondent read the affidavit of Mrs Margaret MacMahon sworn 24 December 2010. By effect of order 11, the functional orders made by the Commissioner have lapsed. Accordingly, the entire proceedings have been for nought and have been a waste of time for the parties and the Court. Given the nature of the proceedings and the quantum sought and the gross effect the application would have had on Mrs MacMahon if it had been successful, she thought it was prudent to engage a solicitor to represent her in the proceedings. Mrs MacMahon's legal costs up to 24 December 2010 were in excess of $8,895, excluding the costs of an affidavit, the Notice of Motion and filing fee. Mrs MacMahon is semi-retired and has limited financial means. Mrs MacMahon was informed by her solicitor that her costs on a party/party basis were approximately $5,870. However, Mrs MacMahon does not wish to incur the additional cost and inconvenience of a costs assessment. Rather, she requests that the Court make a costs order for $4,000. 10Mrs MacMahon gave brief oral evidence about what was said at the pre-trial review before the Senior Commissioner on 19 April 2010 to the effect that he stated to the Applicants that expert evidence was necessary. None was forthcoming from the Applicants. 11Mr Moase gave brief oral evidence that he believed he did comply with the orders of the Senior Commissioner in the pre-trial review as can be seen from the letter dated 27 April 2010 and numerous annexures to that (exhibit B before the Commissioner). That material includes lengthy diary entries concerning the presence of bats, correspondence with the Respondent and quotations for paving and pruning work. He did not recall that the Senior Commissioner told him he had to bring forward expert evidence to support his claim.

Respondent's submissions 12The Respondent relies on r 3.7(3)(a), (d) and (f) as founding an order for costs in her favour. The application was largely unsuccessful and was based substantially on the use of the tree by bats, which the Commissioner held was not a matter within the Court's jurisdiction. The matter was pursued unreasonably and without reasonable prospects of success as no expert evidence to support a finding that the tree had or was likely to cause property damage or injury to a person was ever relied on by the Applicants. This was drawn to the Applicants' attention at the pre-trial review by the Senior Commissioner on 19 April 2010. 13The Respondent's decision to seek legal advice was reasonable given the substantial sums sought by the Applicants in the claims as originally filed. There were multiple claims. Ultimately the Applicants were successful in relation to a small fraction of the matters they brought before the Court. The entire proceedings have proved a waste of time as even in relation to the orders made in the Applicants' favour by the Commissioner (orders 7-10) inaction has meant these have been rendered void, as provided for in order 11.

Applicants' submissions 14The Applicants believed they brought a reasonable claim having been alerted to the possible avenues available to them by a letter from Sydney City Council (exhibit C annexure "W"). They have tried to negotiate with the Respondent since 2001 without success. They considered they brought forward necessary evidence following the pre-trial directions and put evidence before the Court in accordance with those directions. They did not follow up order 7 made by the Commissioner by providing quotations to the Respondent due to serious family circumstances and their conclusion that the sum in question was small.

Finding 15The Court has jurisdiction to make orders it sees fit under s 9 of the Trees Act in relation to prevention of property damage or to prevent injury to persons as a result of a tree the subject of an application. I considered costs in Class 2 tree dispute matters in Low v Elliott [2008] NSWLEC 111. As identified there the presumption is that there will be no costs order in Class 2 proceedings. Costs should only be awarded if fair and reasonable to do so as provided under r 3.7(2) of the Court Rules. Circumstances in which costs might be awarded are identified in r 3.7(3). The Respondent relies on r 3.7(3)(a), (d) and (f) in seeking a costs order. I accept that it was reasonable for the Respondent to seek legal advice given the broad range of issues raised in the Applicants' application and the amount of compensation sought was over $30,000. 16An order cannot be made under the Trees Act unless the Court is satisfied of certain matters, referred to in s 10 which 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. 17As held in Low at [13], the satisfaction of these preliminary questions of fact is necessary before the Court can consider the merits of a particular matter identified in s 12 of the Trees Act. Rule 3.7(3)(a) arises as a question of mixed fact and law which was fundamental to much of the Applicants' claim concerning the impact of the use of the tree by bats. The Commissioner found against the Applicants on this question. The Commissioner held the Court did not have jurisdiction to hear complaints of that nature consistent with authority that tree damage to property or injury to persons cannot arise from use by animals. This was consistent with several decisions of this Court made in 2008 and since. The Applicants were unable to satisfy the Court for most of their claim of necessary matters in s 10(2)(a) or (b) of the Trees Act. 18As to whether the proceedings were continued when there was no maintainable claim or were conducted unreasonably depends on how the pre-trial review and follow up by the Applicants is considered. The oral evidence of Mrs McMahon is that the Senior Commissioner told the Applicants they would need to file expert evidence to demonstrate that the tree in issue had caused or was likely to cause harm. Mr Moase could not recall if this was said at the pre-trial review. In any event no expert evidence was filed in support of the Applicants' application. 19The Applicants submitted that the orders made at the pre-trial review in April 2010 were complied with because they provided additional material as they believed was required. In answer to direction 5, the Applicants supplied lengthy diary entries concerning the impacts of use of the tree by bats, matters held to be irrelevant by the Commissioner. Two letters from the Applicants to the Respondent dated November 2008 raising the need to prune the tree and numerous quotations for undertaking concreting and reconstruction of brick work and pruning of the tree were also provided (exhibit A before the Commissioner). 20The principal part of the Applicants' case was in relation to the effect of the use of the tree by bats. The relevant authority of this Court, Robson v Leischke , which made clear that such use cannot be the basis for an application under the Trees Act, dates from 2008. Extensive information about the Trees Act and decisions made in relation to that Act by commissioners and judges of this Court are available on the Court website. It is essential that those wishing to apply to the Court for orders heed the decisions of this Court as engaging in litigation, regardless of whether parties are represented by lawyers, is time consuming, stressful and often costly. Failure on a threshold issue which was a substantial part of the Applicants' case in these circumstances suggests that a costs order ought be made in light of r 3.7(3)(a)(i) because it is fair and reasonable to do so. 21Further, it is very likely that the Senior Commissioner told the Applicants at the pre-trial review in April 2010 that expert evidence was required to support their claim of property damage although the Applicants cannot recall that being said. 22As to whether the conduct of the Applicants was unreasonable or otherwise maintained where there was no reasonable prospect of success, I accept that the Applicants believed that they complied with the orders made at the pre-trial review given the material provided in exhibit B. That the material was inadequate is confirmed by the Commissioner's judgment. However I accept they did not act unreasonably in the circumstances in which they found themselves. I also accept their submissions that there were serious family circumstances shortly after the Commissioner's judgment which caused their focus to shift from orders 7 - 10 made by the Commissioner. This lack of focus did not result in further costs to the Respondent. 23I consider a partial costs order is warranted under r 3.7. The Respondent seeks only part of her costs. According to her affidavit, she seeks $4,000 whereas in the Notice of Motion she seeks $3,220. In the exercise of discretion I consider an award of costs in the lesser amount is warranted. 24As the Respondent has been successful in her application for costs and costs of this motion should follow the event, her costs of that motion should also be awarded.

Orders 25The Court makes the following orders:

The Applicants are to pay costs in the amount of $3,220 to the Respondent.
The Applicants are to pay the Respondent's costs of the Notice of Motion filed 24 December 2010. 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: 23 February 2011

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