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:
Solicitors:
K Carey (Litigant in Person) (Applicants)
P Bahlmann (Solicitor) (Respondents)
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
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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”).
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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).
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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
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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”).
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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…
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- Case
- [2020] NSWLEC 177
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court to resolve was whether the statements in the article were defamatory and, if so, whether they had caused sufficient harm to warrant a remedy. Additionally, the court needed to consider the public interest in publishing the statements and whether any defences available to the defendant applied.
The court found that the statements in question were indeed defamatory, as they implied Carey had acted immorally. However, the court also considered the public interest in the statements, particularly in light of Carey's public profile and the nature of the allegations. The court concluded that while the statements were defamatory, the public interest in publishing them outweighed the harm to Carey's reputation. Consequently, the court dismissed the notice of motion brought by Carey, finding that no remedy was warranted in this instance.
Orders
Orders of the court
Notice of motion dismissed.
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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