Szabo v Ciacchi

CASES CITED: Kiama Council v Grant (2006) 143 LGERA 331 Palladium Management Pty Ltd v Council of the City of Sydney [2008] NSWLEC 100 (4 March 2008)

APPLICANT Mr J Kells (solicitor) SOLICITORS John J Kells LEGAL REPRESENTATIVES: RESPONDENT Claude Ciacchi SOLICITORS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: I give reasons for judgment in relation to the application for costs by the applicant in these proceedings. 2 Mr Szabo who resides at 76 Joseph Banks Drive, Kings Langley, made application to the Land and Environment Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 for the removal of a eucalyptus tree that was located on the property of his neighbour, Mr Ciacchi at 74 Joseph Banks Drive, Kings Langley. 3 The matter came before the Court constituted by Commissioner Brown and Acting Commissioner Fakes on 8 October 2007. Commissioners Brown and Fakes determined that Mr Szabo's application should be upheld and the tree should be removed. In addition, the Commissioners considered that following removal of the tree, the boundary fence should be replaced. 4 The formal orders that the Court made were:

1. The tree the subject of the application, is to be removed at full cost to Mr Ciacchi within a period of 90 days from the date of this order.

2. A replacement tree is to be provided after consultation with Blacktown City Council of an appropriate species.

3. Following the removal of the tree, the cost of a replacement boundary fence is to be shared equally between the property owners. 5 Subsequently the orders of the Court were taken out and served upon both Mr Szabo and Mr Ciacchi. Mr Ciacchi failed to comply with any of the Court orders within the time periods specified. As I have noted, the first order was that the tree was to be removed by Mr Ciacchi within a period of 90 days from the date of the order. The date of the order was 8 October 2007. This means that the tree was required to be removed by the court order by 8 January 2008. Following that removal, there were to be the two steps specified in orders two and three, namely the planting of a replacement tree and the construction of a replacement boundary fence, the cost of which was to be shared equally between the parties. 6 Mr Ciacchi took no action to comply with the Court's first order before the expiry of the period of time, namely by 8 January 2008. Mr Ciacchi has stated from the bar table that he was busy with his business and then, once Christmas came, there was the Christmas-New Year period where obtaining tradesmen can be difficult. However, Mr Ciacchi made no attempt at all in the period to contact any workmen to carry out the work prior to the expiry of the period. Subsequent to 8 January 2008, Mr Ciacchi has said from the bar table, his mother became sick in February 2008 and then his father passed away in April 2008. He said that he was responsible for caring for his mother and making arrangements in relation to his father. As a result of this, Mr Ciacchi said he still took no further action through this period. 7 Mr Ciacchi did not at any time make application to the Court for an extension of the time within which he could carry out the orders of the Court, nor did Mr Ciacchi contact either orally or in writing his next door neighbour, Mr Szabo, seeking consent for an extension of time within which to carry out the work. 8 Mr Szabo, for his part, first approached the local Council requesting it to take action pursuant to s 17 of the Trees (Disputes Between Neighbours) Act 2006. That section provides that the person who is the beneficiary of a court order under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 may request the local council to inspect the land on which the tree occurs to ascertain whether the order of the Court has been complied with and, if the order has not been complied with, to take action itself to comply with the Court order. Any costs of carrying out the work required by the order could be recovered from the person bound by the order in a court of competent jurisdiction. However, the council is not obliged under s 17 to do either of these actions, notwithstanding receiving a request from the person who is the beneficiary of the order. 9 The council declined to take action as requested by Mr Szabo under s 17. Mr Szabo engaged Mr Kells, solicitor, to assist him in his entreaties to the Council. However, Mr Kells was similarly unsuccessful in moving the Council to take action under s 17. The Council instead responded to Mr Kells saying that Mr Szabo should take his own action in the Land and Environment Court to enforce the order. Unfortunately the Council referred to s 15 of the Trees (Disputes Between Neighbours) Act 2006 as the means by which such enforcement action should be taken. I say "unfortunately" because s 15 is the section of the Trees (Disputes Between Neighbours) Act 2006 which makes non compliance with an order of the Court under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 a criminal offence. It says in s 15(2) that:

"Proceedings for an offence under subsection (1) may be taken before the [Land and Environment] Court in its summary jurisdiction." 10 However, these are criminal proceedings and not civil enforcement proceedings. 11 No doubt taking on board the recommendation of the Council that proceedings to enforce the order should be brought under s 15 of the Trees (Disputes Between Neighbours) Act 2006, Mr Szabo commenced proceedings in the Court with an application which was entitled as being made under s 15 of the Trees (Disputes Between Neighbours) Act 2006. However, the application does not purport to be, except for this title, a summons commencing criminal proceedings. 12 The Land and Environment Court Rules, Pt 5 r 5.3(1), state that proceedings for an offence brought before the Court in its summary jurisdiction are to be commenced by a summons claiming an order under s 246 of the Criminal Procedure Act 1986 in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence. The summons is to be accompanied by the affidavits intended to be relied on as establishing prima facie proof of the offence charged: see Pt 5 r 5.3(2) of the Land and Environment Court Rules. 13 The procedure is that upon receipt of that summons and consideration of the accompanying affidavits, the Court, if satisfied that there is prima facie proof of the offence charged, issues an order that the defendant be brought before the Court to be dealt with according to law for commission of the offence. This procedure, of course, was not followed in this case. 14 The application drawn by Mr Kells, the solicitor for Mr Szabo, described it as being brought in the former proceedings in which the Court had made orders, namely proceedings number 20675 of 2007. However, the registry of the Court crossed out that reference and instead made it a new application in Class 4 of the Court's jurisdiction. The proceedings became proceedings number 40455 of 2008. 15 The application in para 3 claims that the respondent, Mr Ciacchi, is: "clearly in contempt of the court having ignored the order given on 8 October 2007". 16 It is true that proceedings may be brought to punish a person for contempt for failing to comply with an order of the court. Such proceedings would be brought in the proceedings in which the order of the Court was made, in this case in the Class 2 proceedings. The procedure is to move by notice of motion seeking that the contemnor be punished for the contempt in failing to comply with the Court's order. 17 However, there is a particular procedure that must be followed. This procedure is laid down in Pt 55 r 6 of the Supreme Court Rules 1970. The procedure in Pt 55 of the Supreme Court Rules 1970 applies to proceedings in Class 2 of the Court's jurisdiction: see Pt 3 r 3.9 and r 3.1 of the Land and Environment Court Rules 2007. A statement of charge, that is a statement specifying the contempt of which the person is alleged to be guilty, needs to be subscribed to or filed with the notice of motion: see Pt 55 r 7 of the Supreme Court Rules 1970. Evidence in support of a charge is to be given by affidavit unless the Court otherwise permits: Pt 55 r 8 of the Supreme Court Rules 1970. The notice of motion, the statement of charge and the affidavits are to be served personally on the person alleged to be guilty of contempt. Where the person is found guilty of contempt the court may punish the person, if, as in this case, the person is an individual, by imprisonment or fine or both: see Pt 55 r 13(1). 18 The application brought by Mr Szabo, although claiming as a prayer for relief that the respondent is in contempt of court, does not comply with this procedure which would be necessary to punish a person for contempt. If the matter had proceeded, it would have been necessary for the applicant to have amended the application to accord with this procedure if the respondent was to be punished for contempt. 19 The fourth prayer for relief in the application was that the Court now enforce its own order. It is not clear on the face of this prayer for relief what is alleged to be the source of the Court's power to enforce its own order. I have earlier referred to the fact that one way of enforcment can be by way of criminal proceedings but that is not what was in fact done, notwithstanding the reference to s 15 of the Trees (Disputes Between Neighbours) Act 2006. Another way of enforcing an order is by bringing contempt proceedings but as I have noted above, the procedure for doing this was not followed in this case. 20 There is another means of enforcement under Pt 40 Div 2 of the Uniform Civil Procedure Rules 2005 which does apply to civil proceedings including proceedings in Class 2 of the Land and Environment Court's jurisdiction: see s 4 and Sch 1 of the Civil Procedure Act 2005 and Pt 1 r 1.5 and Sch 1 of the Uniform Civil Procedure Rules 2005. Where this means of enforcement is taken, the Court can enforce a judgment or order of the court by imprisonment of the person bound by the judgment or sequestration of that person's property. However, it is not clear that that is what was being sought in the application in these proceedings. 21 The last way in which the Court might have power is under s 20(2) of the Land and Environment Court Act 1979. That section provides that the Court, in Class 4 of its jurisdiction, can hear and dispose of proceedings to enforce any rights, obligation or duty conferred or imposed by a planning or environmental law, which includes the Trees (Disputes Between Neighbours) Act 2006: see s 20(2) and s 20(3)(a) of the Land and Environment Court Act 1979. 22 In this case, the obligation on Mr Ciacchi is imposed by the order of the Court made under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 to remove the tree. This obligation is not one that the Trees (Disputes Between Neighbours) Act 2006 imposes directly, rather it is imposed indirectly by reason of the Act authorising the Court to make orders under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 which orders, in turn, impose the obligation. It may well be that the fourth prayer for relief is seeking an order through this means. Because Mr Ciacchi complied with the order before the hearing, the occasion did not arise to address this issue. 23 The application was filed in the Court on 8 May 2008. The application was required to be and was served by 16 May 2008. The matter was assigned by the registry to Class 4 of the Court's jurisdiction. The first return of the application was before the Class 4 list judge on 6 June 2008. On that occasion, Mr Kells appeared as the solicitor for the applicant and Mr Ciacchi appeared in person. 24 Mr Ciacchi said on that occasion that he would, finally, comply with the Court's order and remove the tree if he could be given an opportunity to do so. The Court acceded to this request and stood the matter over to 11 July 2008 in order to give Mr Ciacchi an opportunity to cut the tree down and thereby comply with the Court's order. The orders of the Court were sent to the parties on 11 June 2008. 25 Mr Ciacchi says that around mid June 2008 he arranged for the tree to be cut down and this was done at that time. Accordingly, it took barely about two weeks from the time that the matter was before the Court on 6 June 2008 to the time by which Mr Ciacchi was able to comply with the Court's order. 26 The matter was next before the Court on 11 July 2008. On that occasion Mr Kells appeared for the applicant and Mr Ciacchi appeared in person. The Court was informed that the tree had been removed. This now left the third order of the Court to be complied with. The third order, it will be remembered, was that the fence be replaced and the costs of doing so be paid half each by the parties. This work was to follow in time the removal of the tree. 27 The matter was adjourned for mention on 8 August 2008. In the meantime, after 11 July 2008, the parties engaged in dialogue as to the costs of carrying out the fencing work. There was a delay apparently caused by the tradesmen so that on 8 August 2008 the fencing work had not been carried out although there had been a contract to do so and it was expected that it would be done shortly. The Court made directions to prepare the matter for a hearing, although it was anticipated that if the fencing work was done, the only matter in issue would be the issue of costs. The matter was set for hearing today. As anticipated, the fencing work has now been completed and the only matter outstanding is the issue of costs. 28 The applicant, Mr Szabo, seeks his costs of bringing the proceedings. The applicant's motion for costs is resisted by the respondent, Mr Ciacchi. Mr Szabo's argument is that he has been successful in the sense that, through the proceedings, both of the Court's orders to remove the tree and to erect the fence have been carried out. Whilst Mr Szabo notes that there has not been a hearing and determination of the proceedings, nevertheless the effect of bringing the proceedings has been to achieve the same outcome as that which was sought in the application, namely that there be compliance with the Court's orders. Accordingly, Mr Szabo submits that Mr Ciacchi should pay his costs. 29 Mr Ciacchi resists the Court making any order for costs. The central basis upon which Mr Ciacchi so resists is that Mr Szabo failed to give notice to Mr Ciacchi before commencing proceedings. Mr Ciacchi asserts that if notice had been given that proceedings were to be commenced to enforce the Court's order, he would have then complied with the Court's order. Such compliance would thereby have avoided the necessity of bringing the proceedings. 30 The proceedings, as I have noted, were allocated by the registry to Class 4 of the Court's jurisdiction. In this Class of the Court's jurisdiction, the usual orders as to costs normally apply, that is that costs follow the event: Pt 42 r 42.1 of the Uniform Civil Procedure Rules 2005 which apply to the Land and Environment Court: see Pt 1 r 1.5 and Sch 1 of the Uniform Civil Procedure Rules. Of course, in these proceedings, there has not been the usual event which the Court looks to to determine the costs, namely a hearing and determination of the proceedings. It was not necessary to proceed to hear Mr Szabo's application seeking to enforce the Court's orders because prior to the hearing Mr Ciacchi complied with the Court's orders. 31 An applicant can be denied its costs in whole or part by disentitling conduct: Kiama Council v Grant (2006) 143 LGERA 331 at 457 [80] and Palladium Management Pty Ltd v Council of the City of Sydney [2008] NSWLEC 100 (4 March 2008) at [14]. Although not put in those terms, in a sense what Mr Ciacchi is saying is that Mr Szabo's failure to give notice before commencing the proceedings was disentitling conduct. He says that if there had been such a notice he would then have complied with the Court's order without the necessity of bringing the proceedings. 32 A problem with this argument of Mr Ciacchi is that the source of the obligation on him to remove the tree was the Court's order; it was not necessary to activate that obligation by the person benefiting from the order giving notice to the person bound by the order. 33 The Court had ordered Mr Ciacchi to remove the tree within 90 days of the order being made. Mr Ciacchi took no steps to comply with the Court's order. Furthermore, he made no application to the Court for an extension of time within which to comply with the order or to otherwise explain why he had failed to comply with the Court's order. Mr Ciacchi also made no attempt to contact in any way the respondent to seek its indulgence for an extension of time or to explain why he had not complied with the order. Indeed, for many months afterwards, Mr Ciacchi continued to ignore the Court's order. 34 It is true that he suffered personal hardships through February and April 2008 with his mother becoming sick and his father passing away. Nevertheless, there still was an outstanding obligation to comply with the Court order. Mr Ciacchi still made no application to the Court, nor to the other party, to seek an extension of time within which to comply with the order. 35 Indeed, on Mr Ciacchi's statement from the bar table, he made no attempt, either in the 90 day period in which he was required by the Court order to carry out the works or afterwards, to contact any contractor to carry out the works. It is patently clear until the matter was brought to the Court, Mr Ciacchi had no intention of complying with the Court's order. 36 To say that the mere sending of a letter before action would have been the prompt for Mr Ciacchi to comply with the Court's order does not sit well with the fact that Mr Ciacchi had chosen to ignore the Court's order through the preceding eight months. Accordingly, the failure of Mr Szabo to send a letter before action should not be taken, in all the circumstances, to be conduct which should disentitle Mr Szabo to an order for costs. 37 It is now necessary to determine the amount of costs that should be ordered. The filing fee that was paid, $685, was the filing fee set by the Court's regulations for commencing Class 4 proceedings. As I have said, the application in the fourth prayer for relief would seem to be a claim for an order under s 20(2) of the Land and Environment Court Act 1979. Proceedings for an order under s 20(2) are properly brought in Class 4. Accordingly, I consider that the filing fee that has been paid by the applicant to commence the proceedings is properly compensable. 38 On the return of the application before the Court on 6 June 2008, Mr Ciacchi indicated that he would then comply with the Court's order to remove the tree. I consider that that court attendance was also a proper cost which should be compensable. 39 After that point in time, the subsequent steps concerned compliance with the other orders. The relevant one is the order that the fence be replaced. There were two further occasions, one on 11 July and one on 8 August 2008. I consider each occasions of those were necessary to follow through the process that had been commenced. Of course, if there had been compliance with the first order of the Court, that is to say, the removal of the tree in the 90 day time period specified, then the third order requiring the replacement of the fence would have necessarily followed soon thereafter. The delay in complying with the third order was a necessary consequence of the failure of Mr Ciacchi to comply with the first order. Accordingly, I consider that those further court attendances should also be compensable. 40 However, I do not consider that the applicant should obtain all of its costs of bringing the proceedings. As I have noted, the application that was made to the court was not orthodox. It made a claim purportedly under s 15 of the Trees (Disputes Between Neighbours) Act 2006 which would have required the commencement of criminal proceedings and that was not done. It made a claim that the respondent was in contempt of court but the procedure for bringing contempt proceedings was also not followed. I do not consider the costs of drafting this unorthodox application should be paid by Mr Ciacchi. 41 Mr Szabo and his solicitor also took steps seeking to lobby the council to take action under s 17 of the Trees (Disputes Between Neighbours) Act 2006. Such steps do not relate directly to the legal proceedings and should not be compensable as costs of the proceedings. 42 I consider that a fair and reasonable costs order would, therefore, be that Mr Ciacchi pay those parts of Mr Szabo's costs of the proceedings which encompass the filing fee of $685, each of the court attendances on 6 June, 11 July and 8 August 2008, together with an amount for the hearing today on costs. The reason I say the last mentioned item is that Mr Szabo, for the reasons I have given above, has been partly successful in his application for costs and, conversely, Mr Ciacchi has been unsuccessful in resisting any order for the payment of any costs. 43 Taking a pragmatic approach to the amount of costs, and to avoid the necessity of incurring further costs in preparing a bill of costs in taxable form, and perhaps of having the bill of costs then being challenged and ruled upon, I will assess the amount of costs in the sum of $2,500. This includes the Court's filing fee of $685. 44 For these reasons, the order of the Court is that:

1. The respondent is to pay the applicant's costs of the proceedings, assessed in the sum of $2,500.

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.