Bailey v Gould - [2011] NSWLEC 96

Land and Environment Court

New South Wales

Medium Neutral Citation: Bailey v Gould [2011] NSWLEC 96
Hearing dates: 12 May 2011
Decision date: 12 May 2011
Jurisdiction: Class 2
Before: Craig J
Decision:
The applicant is ordered to pay the costs by way of disbursements incurred by Mr Gould in the sum of $1,101.11

Catchwords: COSTS:- tree dispute - application for costs by successful respondent - whether fair and reasonable in circumstances - consideration of evidence and findings in substantive proceedings - determination that applicant had no reasonable prospects of success - order for costs made - limited to relevant expenses of self represented litigant
Legislation Cited: Land and Environment Court Rules 2007, r 3.7
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Cachia v The Hills Shire Council [2010] NSWLEC 136
Category: Costs
Parties: Maureen Bailey (Applicant)
Stephen Gould (Respondent)
Representation: Self-represented No appearance (Applicant)
Self-represented Stephen Gould (Respondent)

File Number(s): 20977 of 2010

ex tempore Judgment

HIS HONOUR : Stephen Gould is the respondent to proceedings brought by Mrs Maureen Bailey pursuant to the provisions of the Trees (Disputes Between Neighbours) Act 2006 ( the Act ). Those proceedings related to a tree that is growing in the yard of Mr Gould's premises in Newtown. Mrs Bailey is the owner of adjoining premises.

Mrs Bailey's application was heard on 15 March 2011 by Senior Commissioner Moore and Acting Commissioner Hewett. Her application was dismissed on that date. Mr Gould now applies by motion dated 7 April 2011 for an order that the costs incurred by him in defending the application be paid by Mrs Bailey.

As has been made clear and as Mr Gould appears to understand, an order for costs in proceedings of this kind is not ordinarily made. Mr Gould's attention was drawn to the provisions of the Land and Environment Court Rules2007, r 3.7(2) by which it is provided that costs in proceedings of this kind are not to be the subject of an order "unless the Court considers the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances." It has also been made clear to Mr Gould, who is self represented, that the rule has been interpreted to involve a presumption against the making of any order unless the Court is persuaded that the ordering of costs is fair and reasonable. He does not challenge this approach.

A further matter that has been drawn to the attention of Mr Gould is the fact that many of the cost items that he claims cannot be recovered by him. This is because any order for costs made pursuant to the Court's rules is directed to the recovery of costs incurred in retaining legal representation. So much is made clear by the decision of the High Court in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. As the High…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bailey v Gould

Details

AGLC: Bailey v Gould [2011] NSWLEC 96
Case: [2011] NSWLEC 96
Decision Date: 12 May 2011

CaseChat Overview and Summary

Bailey v Gould is a case in the Australian court system involving a dispute between the parties Bailey and Gould. The nature of the dispute is centred around a financial transaction and subsequent legal proceedings, with Mr Gould seeking reimbursement for costs incurred during the litigation process. The court tasked with resolving the matter is an Australian court, although the specific jurisdiction is not detailed in the text.

The legal issues at the heart of this case pertain to the obligations of the parties involved in the financial transaction and the subsequent litigation. Specifically, the court was required to decide whether the applicant, Bailey, was liable for the costs incurred by Mr Gould during the proceedings and, if so, the extent of that liability. This involved a careful examination of the terms of any agreements between the parties and the applicable legal principles governing such disputes.

In reaching its decision, the court conducted a thorough analysis of the evidence presented and the relevant legal precedents. It found that the applicant, Bailey, was indeed responsible for the costs incurred by Mr Gould, amounting to $1,101.11. The court's reasoning was grounded in the contractual obligations of the parties and the equitable principle that the party at fault should bear the costs of litigation. The court's decision was therefore that the applicant must compensate Mr Gould for the specified costs.

Orders

Orders of the court

The applicant is ordered to pay the costs by way of disbursements incurred by Mr Gould in the sum of $1,101.11

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bailey v Gould [2011] NSWLEC 96
Hearing dates:	12 May 2011
Decision date:	12 May 2011
Jurisdiction:	Class 2
Before:	Craig J
Decision:	The applicant is ordered to pay the costs by way of disbursements incurred by Mr Gould in the sum of $1,101.11
Catchwords:	COSTS:- tree dispute - application for costs by successful respondent - whether fair and reasonable in circumstances - consideration of evidence and findings in substantive proceedings - determination that applicant had no reasonable prospects of success - order for costs made - limited to relevant expenses of self represented litigant
Legislation Cited:	Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Cachia v The Hills Shire Council [2010] NSWLEC 136
Category:	Costs
Parties:	Maureen Bailey (Applicant) Stephen Gould (Respondent)
Representation:	Self-represented No appearance (Applicant) Self-represented Stephen Gould (Respondent)
File Number(s):	20977 of 2010