Carey v Pattinson (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carey v Pattinson (No 2) [2020] NSWLEC 177

Hearing dates:

11 December 2020

Date of orders:

11 December 2020

Decision date:

15 December 2020

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Notice of motion dismissed.

Catchwords:

COSTS: application for costs in Class 2 tree matter – presumptive rule that each party pays their own costs unless fair and reasonable to otherwise order – whether fair and reasonable to order that the unsuccessful applicants pay costs – whether unreasonable not to excavate to determine the cause of damage – whether unreasonable for the applicants to rely on expert evidence stating that the tree was to blame for the damage – whether the applicants acted reasonably in attempting to reach agreement with the respondents – merely because the Acting Commissioner did not accept the expert evidence of the applicants did not make their commencement and conduct of the proceedings unreasonable – application for costs dismissed.

Legislation Cited:

Civil Procedure Act 2005 s 98(1)

Land and Environment Court Rules 2007 r 3.7(2) and (3)

Trees (Disputes Between Neighbours) Act 2006 s 10(1)

Cases Cited:

Carey v Pattinson [2020] NSWLEC 1515

Marks v Perham (No 2) [2020] NSWLEC 84

McLaren v Lewis (No 2) [2011] NSWLEC 176; (2011) 183 LGERA 344

Zhang v Davidson (No 2) [2020] NSWLEC 89 at [70]

Category:

Costs

Parties:

Michael and Kelly Carey (Applicants)
Adam and Leanne Pattinson (Respondents)

Representation:

Counsel:
K Carey (Litigant in Person) (Applicants)
P Bahlmann (Solicitor) (Respondents)

Solicitors:
K Carey (Litigant in Person) (Applicants)
P Bahlmann (Solicitor) (Respondents)

File Number(s):

2020/23050

Judgment

The Pattinsons Seek Their Costs in a Class 2 Tree Dispute

1. On 23 January 2020 Kelly and Michael Carey (“the Careys”) filed a Class 2 application in this Court for the removal of Adam and Leanne Pattinson’s (“the Pattinsons”) Camphor laurel tree (“the tree”).

2. On 3 September 2020 a hearing in respect of the Class 2 application took place on site at the Careys’s property before Douglas AC. The application was dismissed (Carey v Pattinson [2020] NSWLEC 1515).

3. On 24 November 2020 the Pattinsons filed a notice of motion seeking the following orders:

1.   That the Applicants pay the Respondents’ costs of the proceedings on an indemnity basis.

2.   Alternatively, that the Applicants pay the Respondents’ costs as agreed or assessed.

3.   That the Applicants pay the Respondents’ costs of the Motion.

Costs in Class 2 of the Court’s Jurisdiction

4. The Court’s power to make a costs order is conferred by s 98(1) of the Civil Procedure Act 2005, subject to the Land and Environment Court Rules 2007 (“the LEC Rules”).

5. The presumptive rule with respect to costs in Class 2 of the Court’s jurisdiction is set out in r 3.7(2) of the LEC Rules:

3.7   Costs in certain proceedings

(2)   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…