Bailey v Gould (No 2) - [2011] NSWLEC 103

Land and Environment Court

New South Wales

Medium Neutral Citation: Bailey v Gould (No 2) [2011] NSWLEC 103
Hearing dates: 20 June 2011
Decision date: 20 June 2011
Jurisdiction: Class 2
Before: Craig J
Decision:
1Set aside the order for costs made on 12 May 2011.
2Dismiss the applicant's notice of motion filed on 30 May 2011.
3Order that the applicant pay to the respondent costs by way of disbursements incurred in the sum of $645.00.
4Otherwise no order as to costs incurred by either part of and incidental to these proceedings.

Catchwords: COSTS: tree dispute between neighbours - application to set aside order for costs made against applicant in her absence - Uniform Civil Procedure Rules r 36.16(2)(b) - order for costs varied as to quantum - motion dismissed
Legislation Cited: Land and Environment Court Rules 2007 r 3.7
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules r 10.5(1)(b), r 36.16(2)(b)
Cases Cited: Bailey v Gould [2011] NSWLEC 96
Bailey v Gould [2011] NSWLEC 1062
Category: Costs
Parties: Mrs Maureen Bailey (Applicant)
Mr Stephen Gould (Respondent)
Representation:
SELF-REPRESENTED
Mrs Maureen Bailey (Applicant)
SELF-REPRESENTED
Mr Stephen Gould (Respondent)

File Number(s): 20977 of 2010

ex tempore Judgment

On 12 May last, I delivered judgment on an application by Mr Stephen Gould for an order for costs ( Bailey v Gould [2011] NSWLEC 96). Mr Gould was the successful respondent in an application made to the Court by Mrs Maureen Bailey under the Trees (Disputes Between Neighbours) Act 2006. I ordered that Mrs Bailey pay Mr Gould costs by way of disbursements in the sum of $1,101.11.

There was no appearance by Mrs Bailey at the hearing conducted before me on 12 May. At that time Mr Gould, who was self represented, read an affidavit of service of his notice of motion seeking costs. The affidavit stated that on 8 April a copy of the notice of motion had been sent to Mrs Bailey by pre-paid registered post addressed to her Newtown address. Annexed to the affidavit was a photocopy of an Australia Post lodgement receipt indicating the document to have been addressed to Mrs Bailey at that address. An Australia Post stamp with the date "8 April 2011" appeared on the receipt. The address to which the document was directed was the address for service indicated on the application made by Mrs Bailey when she filed her tree dispute application with the Court (cf Uniform Civil Procedure Rules r 10.5(1)(b)).

Mrs Bailey, who is also a self represented litigant, has now filed a notice of motion by which she seeks a number of orders. In substance, she seeks to set aside the order for costs made against her. She also seeks an order that Mr Gould pay her costs of this motion and a further order that he pay costs that were reserved on 13 January last when an order was made by the Court for substituted service upon him of the tree dispute application.

The material filed…

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 (No 2)

Details

AGLC: Bailey v Gould (No 2) [2011] NSWLEC 103
Case: [2011] NSWLEC 103
Decision Date: 20 June 2011

CaseChat Overview and Summary

The case of Bailey v Gould (No 2) involves the applicant, Bailey, and the respondent, Gould. The dispute pertains to an order for costs made on 12 May 2011, which Bailey sought to set aside, and a notice of motion filed on 30 May 2011, which Gould sought to dismiss. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the order for costs made on 12 May 2011 should be set aside and if the notice of motion filed by the applicant on 30 May 2011 was valid and should be dismissed. The court had to consider the circumstances surrounding the making of the costs order and whether it was appropriate to set it aside. Additionally, the court needed to assess the merits of the notice of motion filed by the applicant and determine if it warranted dismissal.

In its decision, the court held that the order for costs made on 12 May 2011 should be set aside. The court found that the order was made without proper consideration of the relevant factors and was thus inappropriate. Regarding the notice of motion filed by the applicant, the court dismissed it on the grounds that it lacked merit and was an abuse of process. The court further ordered that the applicant pay the respondent costs in the sum of $645.00, which were incurred by the respondent in relation to these proceedings.

The court's final order was that the order for costs made on 12 May 2011 be set aside, the applicant's notice of motion filed on 30 May 2011 be dismissed, and the applicant pay the respondent costs by way of disbursements in the sum of $645.00. The court made no further orders as to costs incurred by either party and incidental to these proceedings.

Orders

Orders of the court

1Set aside the order for costs made on 12 May 2011.

2Dismiss the applicant's notice of motion filed on 30 May 2011.

3Order that the applicant pay to the respondent costs by way of disbursements incurred in the sum of $645.00.

4Otherwise no order as to costs incurred by either part of and incidental to these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bailey v Gould (No 2) [2011] NSWLEC 103
Hearing dates:	20 June 2011
Decision date:	20 June 2011
Jurisdiction:	Class 2
Before:	Craig J
Decision:	1Set aside the order for costs made on 12 May 2011. 2Dismiss the applicant's notice of motion filed on 30 May 2011. 3Order that the applicant pay to the respondent costs by way of disbursements incurred in the sum of $645.00. 4Otherwise no order as to costs incurred by either part of and incidental to these proceedings.
Catchwords:	COSTS: tree dispute between neighbours - application to set aside order for costs made against applicant in her absence - Uniform Civil Procedure Rules r 36.16(2)(b) - order for costs varied as to quantum - motion dismissed
Legislation Cited:	Land and Environment Court Rules 2007 r 3.7 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules r 10.5(1)(b), r 36.16(2)(b)
Cases Cited:	Bailey v Gould [2011] NSWLEC 96 Bailey v Gould [2011] NSWLEC 1062
Category:	Costs
Parties:	Mrs Maureen Bailey (Applicant) Mr Stephen Gould (Respondent)
Representation:	SELF-REPRESENTED Mrs Maureen Bailey (Applicant) SELF-REPRESENTED Mr Stephen Gould (Respondent)
File Number(s):	20977 of 2010