Bowler v Mackney
[2024] NSWLEC 30
•06 March 2024
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:
Solicitors:
K F Bowler, self-represented (Respondent on the Motion)
J Ryan, solicitor (Applicant on the Motion)
Self-represented (Respondent on the Motion)
Stringybark Legal (Applicant on the Motion)
File Number(s): 2021/00263520 Publication restriction: Nil
Judgment
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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.
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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
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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.
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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’).
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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.
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Having found that there was no claim in relation to the antenna or the dwelling, the Acting Commissioner then considered whether damage or injury was likely to occur. He found, based on the evidence before him, that there was little chance of damage or injury occurring. He accepted the evidence of Mr Williams that there were no problems with the trees’ root zones.
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The Acting Commissioner also dealt with concerns raised by Mr Bowler in relation to bushfire risk due to the proximity of the trees to his property and concluded that apart from Mr Bowler’s concern regarding the proximity of the trees, there was no evidence before him that they were likely to cause damage to the property. However, he noted that Mr Bowler had experienced some traumatic events during the 2018 bushfires.
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In consideration of the evidence and having noted that there was an apparently poor relationship between the parties, the Acting Commissioner found that it was appropriate to make orders for some remedial pruning of the trees. He concluded that orders would be made to prune T1, T2, and tree T4 (‘T4’), to mitigate the risk of limbs falling.
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The pruning was to include crown reduction and some removal of deadwood from the trees extending over Mr Bowler’s property, however the Acting Commissioner was careful to find there were no grounds for making orders in relation to the other aspects of Mr Bowler’s application. He also found that it was open to Mr Bowler to carry out minor reduction pruning himself. In the circumstances, the Acting Commissioner saw no need for ordering ongoing pruning at regular intervals and made orders including the following:
“…
(2) Within 60 days of the date of these orders the Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune trees T1 and T2 (trees ‘T1 – T3’ in the application) and T4 to remove all deadwood greater than 40mm in diameter above the Applicant’s property and to reduce their crowns where they extend over the Applicant’s property by up to 15% total crown mass, including removal of branches as shown in photographs on page 8 of Mr Williams’ report (Exhibit 5).
(3) All works are to be done in accordance with the guidelines of the Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’ and AS4373 ‘Pruning of amenity trees’.
…”
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Subsequent to the Acting Commissioner’s judgment, Mr Bowler formed a concern that the orders had not been, or were not being, complied with and commenced these contempt proceedings on 16 October 2023 by filing a notice of motion and a statement of charge directed to Ms Mackney. The motion itself sought orders that primarily replicated the orders made by the Acting Commissioner, however, it also included a further order:
“Give direction to Port Stephens Council to complete the [C]ourt orders in the situation that the Respondent does not comply with the [Court] orders.”
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More relevantly, the statement of charge directed to Ms Mackney, stated:
“You are charged with contempt of court in that:
Charge
You have disobeyed order (2) of the orders made by the [C]ourt on 13 May 2022. In that you did not carry out the work required by order (2)(3)(4)(5)(6) at 188 Sandy Point Road, Corlette NSW within the time periods required by those orders.
Particulars:
a. You did not cut down T1 branches and crown at 2.3 metres from ground within 60days of 13 May 2022.
Particulars:
b. You did not cut down T2 branches over the boundary within 60 days of 13 May 2022.
Particulars:
c. You did not cut down T3 four branches over the boundary within 60 days of 13 May 2022.
Particulars:
d. You did not cut down T4 two branches and crown within 60 days of 13 May 2022.
e. You did not cut down 15% of remaining crown mass over the boundary within 60 days of 13 May 2022.”
Evidence
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Although the application before me relates to costs, I was directed to and read the affidavits relied upon by the parties. Mr Bowler read his affidavits of 21 August 2023, 28 February 2024, and 1 March 2024; and Ms Mackney read her affidavits of 22 November 2023 and 26 February 2024. Ms Mackney also read the affidavit of Stephen Williams, arborist, of 28 February 2024, and the affidavit of her solicitor, James Ryan, of 1 March 2024. I will note some of the evidence in a chronological manner.
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Ms Mackney’s first affidavit of 22 November 2023, which was prepared without legal assistance, indicates that she is the defendant in these contempt proceedings and that she is an aged pensioner living on her own with no other form of income. She comments on various documents received from Mr Bowler and states that, in accordance with her understanding of her obligations under the Court orders, she retained an arborist known as Agility Professional Tree Services Pty Ltd (‘Agility’) (on the recommendation of Mr Williams), who undertook the required pruning on 14 June 2022, and that further pruning was later undertaken because, as Ms Mackney states, “Mr Bowler wasn’t happy with the first pruning, so Mr William Mittens from Agility Tree Service[s], sent a Cert 5 arborist to remove more”, and the “[s]econd pruning [was] completed on 2nd September 2022”.
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Ms Mackney’s affidavit was in response to Mr Bowler’s affidavit of 21 August 2023, in which he stated that although some work had been completed in relation to the Court orders of 13 May 2022, no work was completed in relation to T1 and T4. Mr Bowler attached photographs of the trees and noted that he had notified both Ms Mackney and Agility that the Court orders had not been complied with. He then states that on 9 May 2023, a “[n]otice of breach of orders letter” was sent to Ms Mackney. The letter of 9 May 2023, sent before the contempt proceedings had been commenced, states in part:
“I have approached the Land and Environment Court for contempt […] proceedings as orders have not been complied with, we will proceed with application after 7 days.”
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In any event, Mr Bowler filed his notice of motion for contempt on 16 October 2023 and on 1 December 2023, the matter was listed before me (by telephone) as List Judge. Both parties appeared without legal representation, and I directed that the proceedings stand over for further directions on 15 December 2023.
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The matter came before Duggan J on 15 December 2023. At that time, Mr Bowler appeared, again unrepresented, and Ms Mackney did not appear. Her Honour set the matter down for hearing before a judge of the Court on 4 March 2024 and directed the Registrar to send Ms Mackney a notice of hearing advising her of that date and made orders for the provision of further evidence.
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Mr Bowler’s affidavit of 28 February 2024 stated that he did not believe that Ms Mackney had complied with the orders of the Court of 13 May 2022. The affidavit included photos of trees and a letter of offer of settlement dated 8 February 2024 that Mr Bowler had sent to Ms Mackney’s solicitor, Mr Ryan. I note that it is clear that Ms Mackney retained Mr Ryan as her solicitor in the light of the fact that the Court made orders for the hearing to proceed on 4 March 2024.
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Mr Bowler’s letter dated 8 February 2024 stated:
“We would like to propose the following in exchange of discontinuing Notice of Motion Hearing on 04 March 2024 at the Land and Environment Court Sydney.”
He then set out five matters:
“- Total removal of T2 and T1
- Pruning of all branches and crown of T4 to boundary.
- Prune all branches of all 4 remaining trees off boundary and reduce crown to make trees safe from uprooting.
- Cover all house and property damages cost including all damages up to the point of tree pruning and removal.
- Cover all court costs up to the date of settlement of dispute”
The letter concluded:
“We will discontinue our case if our requests above have completed by 23 February 2024.”
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I make two comments about this letter. First, the five matters do not properly reflect the orders made by the Acting Commissioner; and second, to the extent Mr Bowler’s letter dated 8 February 2024 was some form of offer of settlement or resolution, it allowed 15 days from the date of the letter for all five matters to be attended to in circumstances where the letter was sent less than four weeks before the allocated hearing date.
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The affidavit of Mr Bowler of 28 February 2024 notes that Mr Bowler sent the letter of offer of settlement on 8 February 2024 and, 11 days later, on 19 February 2024, Mr Bowler sent a notice of discontinuance to Ms Mackney’s solicitor, Mr Ryan, suggesting that each party pay its own costs and noting that the “situation of trees had changed” as Mr Bowler had found that “two of our big trees are moving and bending our boundary fence”. Mr Bowler’s affidavit further notes that there had been discussions between Mr Ryan and Mr Bowler in relation to Mr Bowler’s desire to discontinue the proceedings, and Mr Ryan suggested that agreement could be reached by Mr Bowler paying part of Ms Mackney’s costs in the sum of $600. I also note that Mr Bowler attached a statutory declaration of his own in relation to his intercourse with Mr Ryan.
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Mr Bowler makes certain comments in relation to what he finds in Mr Ryan’s “extremely unsatisfactory behaviour”. Although I am conscious that Mr Bowler is, and has been, unrepresented in these proceedings, I indicate for the record that there is nothing in all the material before me that could, in any way, be properly described as unsatisfactory professional behaviour on the part of Mr Ryan, and I make no further comment in relation to that matter.
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The affidavit of Mr Bowler of 28 February 2024 also attaches a letter dated 15 November 2023 from Glenn Holden under the letterhead “Urban Tree Care”. Mr Holden notes that he had “sighted a copy of the [C]ourt order” and also had a discussion with Mr Bowler, and states:
“In my opinion minimal attempt was made to satisfy the court order [from] 13th May 2022”
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I note that the letter from Mr Holden to the extent that it may have been relied upon as some form of arboricultural assessment, is not in any admissible form. However, even taking it at face value, it does not amount to a comment that would be otherwise compelling in any way in contempt proceedings if they had proceeded.
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Mr Holden also prepared an arboricultural assessment dated 28 February 2024 (which was also attached to Mr Bowler’s affidavit), which stated:
“To stop the damage to the fence tree 1 should be removed.
Tree 2 should be removed due to the fact it is moving in the ground.”
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Despite this report not being in admissible form, I have read it (in relation to Ms Mackney’s application for costs) as Mr Bowler is not legally represented. In his report, Mr Holden does not refer to the Acting Commissioner’s orders. It is a report which states that it was prepared in relation to Mr Bowler’s “concerns about two of his neighbour’s trees”. The report goes no further.
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Mr Bowler’s third affidavit of 1 March 2024 styled “affidavit of cost” provides “[d]etails of what has cost me so far are as follows”, and attaches various invoices from Urban Tree Care, Duggan Mather Surveyors, Elite Fencing Services, a further invoice from Urban Tree Care, as well as a quote from Bay Area Tree Services. I received this material on the basis that Mr Bowler is bringing to my attention that he has incurred costs in relation to the subject trees.
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During the hearing on costs, Mr Bowler made detailed submissions that he did what he thought he was entitled to do based upon advice he had received. He maintained that work to the trees was required and had not been complied with, and, in any event, that the notice of discontinuance was provided relatively early in the proceedings. He maintained (again) that there was a “change in circumstances” being that the trees had “moved”, and he considered that he could not start new proceedings because there were already proceedings on foot in relation to contempt.
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Ms Mackney’s second affidavit of 26 February 2024 provides a comprehensive response to the material filed by Mr Bowler. It is clear that this affidavit was prepared in anticipation of the contempt hearing. Ms Mackney again deposes to the fact that on 14 June 2022 she engaged Agility to carry out the works specified in the Court orders and that she had contacted Agility on the recommendation of Mr Williams, who was the arborist who gave the evidence in the Court proceedings before the Acting Commissioner.
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Ms Mackney also notes that Mr Bowler had complained that not enough branches had been removed by Agility, and that she therefore asked Agility to return to remove more of the branches. She gives evidence that she had been informed that Agility was in touch with Mr Williams by telephone to ascertain the correct interpretation of the Court orders.
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Ms Mackney also states that she recently re-engaged Mr Williams to return to the site to make observations as to whether the Court orders had been complied with, and that she intends to have Mr Williams’ report before the Court hearing on 4 March 2024. She notes that she has read the affidavit of Mr Bowler and rejects the claim that the photographs represent evidence that the work required by the Court orders was not completed.
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As noted above, Ms Mackney reads the affidavit of Stephen Williams of 28 February 2024, who is the arborist who gave evidence in the initial proceedings before the Acting Commissioner and was the arborist to whom Ms Mackney referred in her second affidavit. Mr Williams affirms that he has undertaken a site inspection on 27 February 2024 and encloses a report in which he acknowledges the expert witness code of conduct pertaining to Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW).
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That report is a follow-up to his report of 17 October 2021, which was the report that was before the Acting Commissioner and was referred to in the Acting Commissioner’s reasons. Mr Williams concludes that he observed that there was crown lift and other pruning on T1 and T2, which demonstrates to him that the work had been carried out in accordance with his recommendations in the original report.
Consideration
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The Court’s power to order costs is derived from s 98(1) of the Civil Procedure Act 2005 (NSW) and subject to the Land and Environment Court Rules 2007 (NSW) (‘Court Rules’). Before turning to my consideration, it is appropriate to note that disputes under the Trees Act are conducted in Class 2 of the Court’s jurisdiction to which the presumptive rule necessarily and primarily applies. This is contained in r 3.7(2) of the Court Rules, which states:
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.
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Rule 3.7(3) provides a non‑exhaustive list of circumstances in which an order for costs may be fair and reasonable, including the following:
…
(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,
…
(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.
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Relevant to the present matter, subrr 3.7(3)(c), (d) and (f) provide that unreasonable conduct by a party either before, or in the conduct of proceedings, or the maintenance of the defence, which was without reasonable prospects, may justify an order for costs. Although subr 3.7(3)(f) may provide some assistance when evaluating whether an order for costs is fair and reasonable, the power exercised by the Court is not confined to those matters and is instead provided in the broadest of terms.
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In noting the principles, I am conscious that the present matter is not a Class 2 proceeding simpliciter, but relates to a notice of motion for contempt that was actively pursued up until ten or so working days before the final hearing which had been set down at the behest of Mr Bowler when the matter was before Duggan J on 11 December 2023, a time when I note Ms Mackney was both unrepresented and did not appear.
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In relation to the costs in these circumstances, although criminal or quasi-criminal in character, contempt proceedings are brought within the civil jurisdiction of the Court. Consequently, costs may be awarded in contempt proceedings. Ordinarily, costs follow the event, however, the Court retains a discretion as to awarding costs. It is well-established that in contempt proceedings, the applicant bears the onus of proving the civil contempt beyond reasonable doubt and costs may be awarded for a contempt proceeding which arises out of a statutory regime with its own rules as to costs.
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In the above circumstances and having considered the principles and the evidence which I have summarised, I make the following comments.
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The claim made by Mr Bowler is a serious matter and contains serious allegations. I understand that at the time it was made, both parties were acting without legal representation.
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I am also conscious that during the proceedings before me last Monday, Mr Bowler indicated that he had taken some (legal) advice in relation to the conduct of these proceedings and, on at least one or two occasions, received advice from the duty solicitor attached to this Court.
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Mr Bowler’s “offer” to discontinue on 8 February 2024 was, in my view, unreasonable. It sought relief that was not the subject of any claim or pleading and could not be seen as being reflective of the orders made by the Acting Commissioner and could not be considered as a reasonable offer of settlement.
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Ms Mackney’s conduct, subsequent to the earlier letters and indeed subsequent to the matter being set down for hearing – that is, retaining a solicitor, preparing her affidavit of 26 February 2024, and marshalling the affidavit of Mr Williams to meet these serious claims – appear to me to be reasonable responses required to defend a claim otherwise contained in the notice of motion and the letter of 8 February 2024 which, as I have found, was not a proper and reasonable response and offer of settlement. Ms Mackney, in my view, had little alternative other than to incur further costs, given the seriousness of the contempt proceedings brought against her.
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I note that Mr Bowler continues to maintain in his affidavit and his submissions before me that the orders of the Court had not been complied with. That is not, and I hasten to add again, the question before me. If it was, I would have had some real difficulty finding that there had been non‑compliance. Even at its highest, the expert report of Mr Williams indicates that the orders were complied with, remembering that if the matter proceeded to hearing as a contempt matter, the Court would need to be satisfied beyond reasonable doubt that the orders had not been complied with.
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In any event, the evidence raised by Mr Bowler is that there had been “minimal compliance”, or indeed more particularly, “a minimal attempt to satisfy the Court orders.” The more recent “report” of Mr Holden relied upon by Mr Bowler says little or nothing about the Acting Commissioner’s orders. That report relates, as I have indicated earlier, to a concern in relation to the trees as they are at the moment, remembering that the initial Class 2 proceedings were commenced in September 2021.
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In the current circumstances there was little option open to Ms Mackney. She was faced with serious proceedings in relation to alleged non-compliance and the matter had been set down for hearing. As such, she retained legal representation and marshalled evidence. All this occurred collaterally with Mr Bowler’s claim of 8 February 2024 that the proceedings would only be discontinued if Ms Mackney undertook works that were, on any view, in excess of anything that the Court had ordered.
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It is an unrealistic suggestion, if it be made, that Mr Bowler’s letter of 8 February 2024 was some form of compromise. This sits uncomfortably, in my view, with Mr Bowler’s position adopted in correspondence to the Court and in his oral submissions to me on Monday that there had been a “change of circumstances” in the trees and that he wished to discontinue the proceedings for that reason.
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Even if there had been (to use the expression of Mr Bowler) “some movement and touching and bending of a Colorbond fence”, this has little to do with compliance with the Court order for a one-off and limited pruning almost two years ago. Indeed, Mr Bowler, at the time of the hearing before me last Monday, understood that he may have some other claim, whether in this Court or elsewhere, in relation to his concerns. I accept that Mr Bowler genuinely had (and has) concerns in relation to the more recent movement of the trees and such concerns are not dissimilar to those concerns that he expressed some years ago which were the subject of the earlier hearing before the Acting Commissioner. However, in my view, this does not provide a response to the claim presently made.
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Further, Mr Bowler may have had some misunderstanding of the Court’s orders and/or legal advice he may have received; however, he maintains that his attempts to discontinue the contempt proceedings on the basis of each party paying their own costs were reasonable in circumstances where the situation with the trees has “changed”.
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In all the circumstances, I repeat my view that the letter of demand of 8 February 2024 was not an offer of settlement and that it was not an offer to discontinue, it did not reflect the Court’s orders but made claims and sought relief in excess of the orders made. It was not a reasonable offer as it set a wholly unrealistic timetable allowing 15 days to complete the requested work (the five matters I have noted) and furthermore, the offer was made less than four weeks before the hearing date.
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In the circumstances, taking account of all of the matters, understanding the respective positions of the parties and, more specifically, my conclusions in relation to the parties’ conduct, I consider that it is just and reasonable to make a limited order such that the costs incurred by Ms Mackney from 15 December 2023 (the date the matter was set down for hearing) be paid to the extent of 50%.
Orders
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The orders of the Court are:
The notice of motion filed 16 October 2023 is dismissed.
Kenneth Frederick Bowler is to pay 50% of the costs incurred by Lorraine Beryl Mackney on and from 15 December 2023 (including the costs incurred in relation to the notice of motion for costs filed 4 March 2024).
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Decision last updated: 02 July 2025
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