Bowler v Mackney

[2024] NSWLEC 30

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bowler v Mackney [2024] NSWLEC 30

Hearing dates:

04 March 2024

Date of orders:

06 March 2024

Decision date:

06 March 2024

Jurisdiction:

Class 2

Before:

Robson J

Decision:

See orders at [51]

Catchwords:

COSTS — Costs assessment — Determination — Self-represented litigant

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Land and Environment Court Rules 2007 (NSW), r 3.7

Trees (Disputes Between Neighbours)Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), Sch 7

Cases Cited:

Bowler v Mackney [2022] NSWLEC 1250

Category:

Costs

Parties:

Kenneth Frederick Bowler (Respondent on the Motion)
Lorraine Beryl Mackney (Applicant on the Motion)

Representation:

Counsel:
K F Bowler, self-represented (Respondent on the Motion)
J Ryan, solicitor (Applicant on the Motion)

Solicitors:
Self-represented (Respondent on the Motion)
Stringybark Legal (Applicant on the Motion)

File Number(s):

2021/00263520

Publication restriction:

Nil

Judgment

1. Before the Court is an application for costs incurred by the respondent, Lorraine Beryl Mackney in relation to a notice of motion filed 16 October 2023 by Kenneth Frederick Bowler seeking relief in the nature of contempt of court against Ms Mackney. Mr Bowler and Ms Mackney are neighbours and live at Corlette in the Port Stephens region.

2. The application which proceeded before me last Monday was a notice of motion for costs filed 4 March 2024 by Ms Mackney, consequent upon communications from Mr Bowler that he intended to discontinue the contempt proceedings.

Background

3. The genesis of the present application is that on 15 September 2021, Mr Bowler commenced Class 2 proceedings seeking relief under the Trees (Disputes Between Neighbours)Act 2006 (NSW) (‘Trees Act’). That matter proceeded to hearing before Acting Commissioner Galwey on 30 November 2021, at which both Mr Bowler and Ms Mackney appeared without legal representation.

4. The Acting Commissioner delivered judgment on 13 May 2022 (Bowler v Mackney [2022] NSWLEC 1250), where he summarised the evidence before him and noted that Mr Bowler’s Class 2 application related to eight trees detailed in Mr Bowler’s originating tree dispute claim. The Acting Commissioner noted the evidence of Stephen Williams, a qualified arborist at Hunter Horticultural Services, who had provided evidence on behalf of Ms Mackney in a report dated 17 October 2021, which described two large trees on Ms Mackney’s property close to the common boundary, being tree T1 (‘T1’) and tree T2 (‘T2’).

5. The Acting Commissioner recorded that Mr Bowler had a number of concerns, including what he alleged was damage caused by the trees to an antenna on his property and to the dwelling. The Acting Commissioner found that, in relation to the antenna, he could not be satisfied that there had been any damage caused. And, in relation to the dwelling, the Acting Commissioner concluded that even if the trees had caused damage, it was damage that could have been prevented by Mr Bowler carrying out reasonable property maintenance.

6. Having found that there was no claim in relation to the antenna or the dwelling, the…