Sally Armati and David De Coster v The Owners - Strata Plan No 15695

Medium Neutral Citation: Sally Armati and David De Coster v The Owners - Strata Plan No 15695 [2026] NSWLEC 41

Hearing dates: 9 April 2026

Date of orders: 13 April 2026

Decision date: 13 April 2026

Jurisdiction: Class 2

Before: Pepper J

Decision: Notice of motion dismissed.

Catchwords: COSTS: costs in Class 2 tree dispute under the Trees (Disputes Between Neighbours) Act 2006 – whether fair and reasonable to order that the respondent pay the applicants’ costs – applicable legal principles – applicants claiming disbursements only – success in the proceeding insufficient to warrant a costs order – initial conduct of respondent in responding to applicants’ correspondence and requests to remove tree did not justify the imposition of costs – applicants failed on some issues in the proceedings – application dismissed.

Legislation Cited: Land and Environment Court Rules 2007, r 3.7
Trees (Disputes Between Neighbours) Act 2006, ss 10, 12

Cases Cited: Armati v The Owners – Strata Plan No 15695 [2026] NSWLEC 1136
Curtis v Pranatajaya [2025] NSWLEC 33

Category: Costs

Parties: Sally Armati (First Applicant)
David De Coster (Second Applicant)
The Owners of Strata Plan 15695 (Respondent)

Representation: Counsel:
Sally Armati (In person) (First Applicant)
David De Coster (In person) (Second Applicant)
Andrew Blenkinsopp (Agent) (Respondent)
Solicitors:
N/A (First Applicant)
N/A (Second Applicant)
K M Harkness & Co (Respondent)

File Number(s): 2025/445563

Publication restriction: Nil

JUDGMENT

The Applicants Seek Their Costs in a Tree Dispute

1. By amended notice of motion filed on 23 March 2026, the applicants, Sally Armati and David De Coster, seek their cost of proceedings heard and determined by the Court in a tree dispute in Class 2 of its jurisdiction under the Trees (Disputes Between Neighbours) Act 2006 (“Tree Act”) in Armati v The Owners – Strata Plan No 15695 [2026] NSWLEC 1136 (per Galway AC), in respect of a mature willow myrtle (Agonis flexuosa) (“the tree”) growing between the applicants’ and the respondent’s property in Rozelle. A fence was also located between the properties and was found to be impacted by the need to remove the tree.

2. The respondent to the proceedings and the motion, the Owners – Strata Plan 15695, opposed any order for costs, submitting that the presumptive rule that each party pay their own costs set out in r 3.7 of the Land and Environment Court Rules 2007 (“LEC Rules”) ought to prevail.

3. The applicants were not legally represented before Galway AC, the decision-maker in the Class 2 dispute, or before the Court on the costs application. Their costs are therefore limited to the filing fee for the Class 2 application filed on 18 November 2025, the filing fee for the costs motion and the cost of an arborist inspection and report undertaken by Kyle Hill on 19 May 2025 (“the Hill report”). In total they seek an order for $1,306 in costs.

4. Initially the applicants sought a variation of order 9 of the Galway AC’s orders in Amarti (at [53(9)]):

(9) Within 7 days of receiving a copy of a receipted paid invoice for the fencing works in Order (6), the respondent is to pay the applicants 50% of the invoice amount.

5. The applicants had sought an order that the respondent pay 100% of the cost to replace the fence.

6. However, after it was explained to the applicants that the Court had no power in a costs application to vary the orders of the Acting Commissioner (this was a matter for appeal), the applicants amended their motion to abandon this claim.

7. For the reasons that follow, the applicants’ arguments cannot be accepted and the notice of motion must be dismissed with no orders as to costs.

Evidence of the Parties

8. The parties relied upon Exhibit A before Galway AC.

9. In addition, the applicants read an affidavit of Sally Armati and tendered various invoices in support of the costs claimed by them.

Applicable Legal Principles

10. The applicable legal principles governing applications for costs in disputes under the Tree Act in Class 2 of the Court’s jurisdiction have been variously stated by judges of this Court. Recently they were comprehensively set out by Duggan J in Curtis v Pranatajaya [2025] NSWLEC 33, which I respectfully and gratefully adopt and apply (at [10]-[20]):

10. The Court’s discretionary power to award costs is conferred by s 98(1) of the Civil Procedure Act 2005 (NSW) (CP Act):

98 Courts powers as to costs

(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.

…

11. The Land and Environment Court has made rules relating to ordering costs in certain proceedings, such as at present. The Court’s power to award costs in accordance with the Land and Environment Court Rules 2007 (NSW) (LEC Rules) are well understood: Simo Popovac v Dominic Kennedy [2022] NSWLEC 9 (Popovac) at [26]-[35]; Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 *(*Dunford No 3) at [30]; Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116 (Moorebank) at [10]-[14]; Marks v Perham (No 2) [2020] NSWLEC 84 (Perham) at [22]-[30]; Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125 (Sansom) at [48].

12. Rule 3.7 of the LEC rules are applicable to Class 2 proceedings. Rule 3.7(2) of the LEC Rules provides:

(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.

13. Rule 3.7(3) of the LEC Rules provides:

(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.

14. The presumption in r 3.7(2) of the LEC Rules is underpinned by the “no discouragement principle”, in which a person “generally should not be discouraged from exercising their rights of appeal via the prospect of an adverse costs order”: Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 (Arden) at [10]; Sansom at [22]-[23].

15. The determination of whether it is “fair and reasonable” to make an order for costs involves the making of a judgment which involves an evaluative process that confers a wide degree of discretion: see Sansom at [51].

16. The factors identified in r 3.7(3) of the LEC Rules are neither prescriptive nor exhaustive, instead they may inform the Court’s discretion, and may also rebut the presumption in r 3.7(2): see Dunford No 3 at [30].

17. The circumstances in r 3.7(3) of the LEC Rules upon which Mr Pranatajaya contends as being relevant is r 3.7(3)(a), (d) and (f)(i).

18. As is provided for in the Class 2 Practice Note and the Tress Act, Class 2 proceedings are intended to be a quick, just and cheap in the resolution of tree disputes between neighbours. In Fox v Ginsberg (No 3) [2011] NSWLEC 139 (Ginsberg) at [9], Pain J articulated this principle:

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…

19. The considerations of the Court are required to be “...of sufficient weight to overcome the presumptive rule” in r 3.7(2) of the LEC Rules: see Arden at [9].

20. Robson J in Perham at [30] articulated the task of the Court in determining whether to award costs under r 3.7 of the LEC Rules as follows:

In approaching the task before me, I consider that it is appropriate, first, to identify whether there is anything within the judgment of the Commissioner which indicates that an order for costs may be fair and reasonable; and second, to look to the conduct of the parties both before and during the hearing for any indication that such an order may be appropriate.

The Legislative Framework of the Tree Act

11. In order to properly understand the submissions of the parties, and to place the findings made by of Galway AC in their proper statutory context, it is necessary to have an understanding of the legislative framework governing the dispute under the Tree Act.

12. Section 10 of the Tree Act provides as follows:

10 Matters of which Court must be satisfied before making an order

(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. These are jurisdictional thresholds in respect of which the Court must be satisfied in order to grant relief.

14. Section 12 further states that when considering the application the Court is to take into account the following factors:

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters—

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property—

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person—

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The Decision of Galway AC

15. The Acting Commissioner found, as he was required to do under s 10(1)(a) of the Tree Act, that the applicants had made reasonable efforts to reach agreement with the respondent. He said (at [9]):

9 Copies of correspondence annexed to Exhibit A show the repeated requests Ms Armati and Mr De Coster made to the Strata asking for the tree to be removed. They found, with some justification it seems, the Strata’s responses to be dismissive and evasive, leaving them with no alternative but to commence these proceedings. I am satisfied that Ms Armati and Mr De Coster made a reasonable effort to reach agreement with the Strata: s 10(1)(a) of the Trees Act.

16. He set out a succinct timeline of the salient facts prior to the purchase by the applicants of the property impacted by the tree (at [11]):

11. A brief timeline is helpful here.

● The Strata’s buildings and landscape have existed here for many years.

● Land at 79 Mansfield Street was subdivided some years ago to be developed as two properties (79 and 79A), each with a single dwelling.

● Around late 2022 or early 2023 a retaining wall was constructed on 79A parallel to the common boundary shared with the Strata.

● Around early 2023 a double-skin timber paling fence was installed on the common boundary between 79A and the Strata’s property at the expense of the developer or the future owner of 79A.

● The development included excavation for and construction of in-ground swimming pools at 79 and 79A.

● Ms Armati and Mr De Coster purchased the property with a completed dwelling at 79A in June 2024.

17. Of the issues before Galway AC, two were of note, namely, the impact of the tree on a dividing fence and the impact of the tree on a retaining wall between the parties’ properties.

18. Having regard to the factors in s 12 of the Tree Act, first, in relation to the retaining wall, the Acting Commissioner found that the applicants had not discharged their burden of proof of demonstrating that the tree had adversely impacted and displaced the wall as alleged. Galway AC said (at [15]-[17]):

15. I observed only minor displacement of the retaining wall. It seems to me, as the Strata submitted, that Ms Armati and Mr De Coster have not provided evidence as to the degree of the wall’s displacement or its cause, or even if the wall needs replacing. The Court must be satisfied that the tree has contributed to the wall’s condition, and the burden of proof does indeed lie with Ms Armati and Mr De Coster. Their supporting evidence is minimal. With the benefit of the photograph in Exhibit C, I find it unlikely that the tree’s roots have caused displacement of the retaining wall. At Annexure 6 of Exhibit A, a photograph of the retaining wall includes the caption “Retaining Wall built Feb 2023”, which I take to mean the retaining wall was constructed in February 2023. A photograph in Exhibit C shows the new retaining wall at the time of its construction, accompanied by notes. Copied here are the photograph and the notes.

“View to South-west showing:

Old retaining wall was positioned immediately adjacent landfall.

New retaining wall is positioned further away from where the old wall was positioned and further away from boundary from where the old wall was located.

No excavation was required between old and new retaining wall.”

16 The willow myrtle is in the centre of the photograph. The photograph shows a gap between the new retaining wall and the soil supporting the tree. The caption suggests that the gap is a result of the removal, by hand, of the former retaining wall. Ms Armati and Mr De Coster obtained a quote from Stothard Projects in October 2025 to demolish and replace the retaining wall. Allowing for a brief period between them noticing the damage and obtaining a quote, the retaining wall’s displacement developed within 2.5 years of the date of the photograph above. While it is possible that roots grew into the area behind the new retaining wall after it was backfilled, I find it improbable that they would grow large enough within that period to displace the retaining wall. The growth rate of a willow myrtle, including its roots, is much slower than, say, a fig tree (Ficus sp.) or other fast-growing trees with more wide-spreading root systems.

17 The Strata submitted that the retaining wall appears thin and inadequate, questioning whether it was built to appropriate engineering specifications. Ms Armati and Mr De Coster might have provided the specifications and drawings for the retaining wall to demonstrate otherwise, but they have not. Based on observations alone, the retaining wall’s displacement, which seems relatively minor to me, is more likely a result of its inadequate design for the depth of ground it supports, rather than a result of tree root growth. Ms Armati and Mr De Coster have not shown otherwise. They have failed to demonstrate any causal nexus between the tree and the damage: see Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [38]. I cannot be satisfied on the ‘preponderance of probability’ that the tree has caused damage to the retaining wall. For the same reasons, I cannot be satisfied that the tree is likely to cause damage to the wall in the near future. Pursuant to s 10(2) of the Trees Act, no orders can be made on this element of the application.

19. This aspect of the applicants’ claim was therefore dismissed (at [52]):

52 The Court cannot be satisfied that the tree has caused or contributed to any damage to Ms Armati’s and Mr De Coster’s retaining wall.

20. Second, in relation to the health of the tree and the damage to the dividing fence, Galway AC, however, largely found in favour of the applicants. He held that (at [25]-[27] and [35]-[38]):

25. I observed that the tree leans to the south with almost all of its crown over Ms Armati’s and Mr De Coster’s property. The basal stem divides into two stems just above ground level. The union between the two main stems is narrow with bark present within the union. The stems appear to have separated slightly, leaving a narrow opening within the union. Reaction wood – a response to relatively greater stresses in the outer layer of stems and branches as their cells divide – is present on the stems each side of the union. Not only is this stem union a significant structural defect within the tree, but it also likely explains the extent of pressure that one of these stems exerts on the top of the paling fence, which is greater than might be expected by growth alone over a period of less than three years. It is therefore surprising that Daniel Heartwood (of Aura Tree Services, not to be confused with Daniel Leonard of Heartwood Tree Consulting) wrote: “There were no defects observed with the …main trunk.” Equally surprising is that Daniel Leonard noted basal decay but not the weak stem union. The combination of decay and a weak stem union only increases the likelihood of stem failure. Kyle Hill’s conclusion – that failure of the codominant stem is the greatest concern – more accurately describes the situation as I saw it.

26. I conclude that the basal stem union has already begun to fail, contributing to the gradual dropping of the southern stem and the pressure it now exerts on the paling fence. Mr Leonard has, I think, overestimated the tree’s useful life expectancy at 5–10 years. But even if he were right, such a limited life expectancy would not warrant spending the money necessary to modify the fence further, monitor the tree annually, and carry out any pruning required to mitigate the risk.

27. Because the tree’s basal stem union has begun to fail, I find it likely that a large stem is likely to fail in the near future onto Ms Armati’s and Mr De Coster’s property causing considerable damage to their fence, pool and outdoor furniture, and possibly injuring somebody. Pursuant to s 10(2) of the Trees Act, the Court can make orders on this element of the application.

…

35 First, I consider factors that possibly contributed to the fence damage. The parties appeared to agree that some remediation to the fence is required. The tree was there when the developer of 79A constructed the double-skin paling fence right next to it. The fence included a cut-out at its top, around the tree’s stem, to allow for the tree’s growth.

36 Ms Armati and Mr De Coster submitted that it is only the tree that has caused damage to the fence. The tree’s decline and its risk to people and property have been apparent for years. If the Strata had removed it as requested, which was reasonable to expect, the fence would not have been damaged. Ms Armati and Mr De Coster said the Strata should therefore pay for remediation to the fence.

37 The Strata submitted that the clearance around the fence’s cut-out was inadequate for the tree’s growth. The Strata was not consulted on the fence’s design, nor asked to contribute to its design and construction in any way (Exhibit 2). The Strata submitted that the cost of any remediation to the fence must therefore lie with Ms Armati and Mr De Coster.

38 Neither party’s submissions seem unreasonable. Some allowance was made for the tree when the fence was constructed (although damage to the fence is not only a result of tree growth: see above at [25], [26]). The Strata acted on professional advice they obtained from Aura Tree Services, recommending that the tree be pruned rather than removed. Neither party should solely bear responsibility for the current situation by their acts or omissions. As a result, it seems only reasonable that they contribute equally to the cost of any remediation to the fence, so the orders will include equal financial contribution for fencing works. Ms Armati and Mr De Coster submitted that they would prefer to organise and control the fencing works, so orders will allow for this, with the Strata to reimburse them half the cost of the works.

21. The Acting Commissioner therefore concluded that (at [50]-[51]):

50. The willow myrtle is structurally poor and I am satisfied that it is likely to cause damage to the applicant’s property in the near future, or injury to a person. The tree’s removal is required to prevent damage or injury. Ms Armati and Mr De Coster have not contributed to this risk. The Strata will be responsible for tree removal and for planting a replacement tree. Ms Armati and Mr De Coster will need to provide access to their property for tree removal works. Given the tree’s form, it seems likely that branches will need to be lowered into their back yard. All branches and debris are then to be removed from their property via the Strata’s property.

51. The willow myrtle has damaged the dividing fence, which now requires remediation, the cost of which will be shared equally by the parties. Because the tree is to be removed, the fence will no longer need to allow for the tree’s future growth.

Why the Applicants Seek their Costs

22. From the written and oral submissions, it appears that the applicants seek their costs, or submit that it is fair and reasonable for the Court to order costs in their favour, essentially for the following reasons:

(a) first, the respondent has acted unreasonably by being evasive and dismissive in relation to the applicants’ requests to remove the tree, a matter with which Galway AC agreed with (at [9]); (b) second, the respondent had acted unreasonably by being non-responsive and dismissive in relation to the applicants’ requests to remove the tree when the damage the tree was causing to the fence was clear. Had the respondent acted appropriately, the fence would neither have suffered damage nor required replacement; and (c) third, the poor health of the tree and the need for its removal was obvious, as evidenced by the various arborists’ reports and Galway AC’s findings.

The Application for Costs Must be Refused

23. There is no doubt that the applicants have been vindicated in their concerns about the tree and the need for its removal. They successfully demonstrated that the tree was likely to fail and cause damage to the applicants’ property or to the applicants themselves.

24. But this is not sufficient to ground an order for costs in Class 2 of the Court’s jurisdiction. Rather, the applicants must establish that it is fair and reasonable to depart from the presumptive rule in r 3.7(2) of the LEC Rules that each party bear their own costs of the tree dispute proceedings.

25. The applicants placed great emphasis on the statement of the Commissioner that “they found, with some justification it seems, the Strata’s responses to be dismissive and evasive, leading them with no alternative but to commence” the proceedings (emphasis added, at [9]). This statement must, however, be placed in its proper context, namely, that the Commissioner had to be satisfied that, in order to enliven the Commissioner’s jurisdiction to hear their application, the applicants had made a reasonable attempt to reach agreement with the respondent. The Commissioner held that they had. That no agreement had been reached between the parties cannot in and of itself warrant a costs order in the applicants’ favour.

26. There is no doubt that the Commissioner was somewhat critical of the response by the respondent to the applicants’ entreaties to remove the tree and replace the fence. However, a review of the correspondence passing between the parties establishes that the respondent responded to the applicants in a timely manner. While it is true that the respondent did not accept that the tree was in a poor condition or that it needed removal, its position was based upon an examination by a qualified arborist to assess the tree. The respondent’s ‘dismissiveness’ is explained on this basis. Having reviewed the correspondence, I do not find that it, or any other aspect of the respondent’s conduct, warrants the imposition of costs in the applicants’ favour.

27. I do not accept the submission of the applicants that “they [the respondent] did their best to make it difficult for us to get rid of the tree”. Rather, the respondent disagreed with the applicants about the health of the tree and the need for its removal. While ultimately proven to be wrong, based on the expert evidence that the respondent relied upon, the respondent was entitled nevertheless to take a contrary view. It did not act unreasonably in doing so. I note in this regard that prior to the Class 2 application being filed by the applicants, the respondent had requested a copy of the arborist report that the applicants were relying upon to assert that the tree was in a state of decline (which was contrary to the assessment undertaken by the arborist that the respondent had engaged which merely recommended pruning) (that is, the Hill report). The applicants refused to provide the report unless the respondent covered the costs they had incurred in its preparation.

Conclusion and Orders

32. Having regard to all of the circumstances of the proceedings before Galway AC, and the factors contained in r 3.7(3) of the LEC Act, I do not consider that it is fair and reasonable that the respondent pay any part of the applicants’ costs of the proceedings.

33. The formal orders of the Court are that the notice of motion is dismissed with no order as to costs.

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