Carmela Ruoso v Thi Ngoc Hoa Hoang & Anor

[2015] NSWLEC 1551

Land and Environment Court

New South Wales

Medium Neutral Citation:	Carmela Ruoso v Thi Ngoc Hoa Hoang & Anor [2015] NSWLEC 1551
Hearing dates:	2 April 2015
Date of orders:	02 April 2015
Decision date:	02 April 2015
Jurisdiction:	Class 2
Before:	Registrar Gray
Decision:	See [14]
Catchwords:	CONSEQUENTIAL ORDERS – application for an order to quantify amount payable pursuant to earlier orders
Legislation Cited:	Land and Environment Court Rules 2007 Trees (Disputes Between Neighbours) Act 2006
Category:	Consequential orders (other than Costs)
Parties:	Carmela Ruoso (applicant) Thi Ngoc Hoa Hoang (First respondent) Huu Quoc Viet Nguyen (Second respondent)
Representation:	Counsel:   Solicitors: F C Bryant Thomas & Co (applicant)
File Number(s):	20965 of 2013
Publication restriction:	No

Judgment ON NOTICE OF MOTION

1. REGISTRAR: This matter comes before me today on a Notice of Motion filed on 19 March by the applicant in these proceedings seeking a number of orders.  The first order sought by that Notice of Motion seeks the payment of a sum of $7,242.  That sum is derived from the cost of the cheapest of three quotes provided to the applicant for the works required to be carried out pursuant to the orders of Acting Commissioner Galwey in these proceedings.  I will return to the terms of those orders shortly.  The second order that is sought, by way of Notice of Motion, is that the respondents pay the applicant the costs of this Notice of Motion.  The third order that is sought is an order for the respondents to pay the costs of the substantive proceedings.

2. In order for me to make a costs order in relation to the substantive proceedings, r 3.7 of the Land and Environment Court Rules 2007 requires that the Court be satisfied that it is fair and reasonable for a costs order to be made.  The applicant is not in a position to put forward evidence and submissions in relation to that order today. I have therefore indicated that I will deal only with its application under prayers 1 and 2 of the Notice of Motion, and that I will stand over the question of costs of the substantive proceedings to a future date.

3. I turn then to the first and second orders sought by way of the Notice of Motion. By way of background, the substantive proceedings concerned an application under Part 2 of the Trees (Disputes Between Neighbours) Act 2006.  Ms Ruoso, the applicant in the proceedings, sought orders for the owners of the neighbouring land to pay for a repair to a section of paving and also for cutting concrete for an inspection hole to work out damage that is being caused by roots from two trees on the respondents' property.

4. The matter came before the Court on a number of occasions prior to the matter being listed for hearing.  On each of those occasions there was no appearance by the respondents.  I understand that, throughout that process, orders for substituted service were made and complied with in order to bring the documents to the attention of the respondents.  Notwithstanding this, the respondents did not appear following the service of the documents on them pursuant to the orders for substituted service.

5. The matter then came before the Court and was fixed for hearing on 18 March 2014.  At that time, Acting Commissioner Galwey conducted the hearing and reserved his judgment.  That judgment was then delivered on 9 April 2014.

6. The orders made include the following.

…

(2)   Within 30 days of the date of these orders the respondents are to engage a suitably qualified (minimum AQF level 3) and insured arborist to remove the two trees near the common boundary to ground level and apply herbicide containing glyphosate to the stumps or, alternatively, grind out the stumps.

(3)   Within 14 days of the date of these orders, the applicant is to obtain three quotes from suitable contractors to remove and replace 22 square metres of damaged paving to an equivalent standard of the original paving. The quotes are to include removal of all woody tree roots found in the soil below the paving.

(4)   Within 21 days of the date of these orders the applicant is to serve the cheapest of the three quotes on the respondent.

(5)   After removal of the two trees and within 60 days of the date of these orders the applicant is to engage her chosen contractor to remove and replace the 22 square metres of damaged paving.

(6)   Between removal and replacement of the paving the applicant's contractor is to remove all woody tree roots found in the soil below the paving.

(7)   When the works above are completed the applicant is to serve the respondents with notification of such.

(8)   Within 7 days of being served notification in (7) the respondents are to pay to the applicant the amount of the quote in Order (4) along with an additional $242, being the cost of concrete removal completed to date.

(9)   The exhibits are returned.

7. Subsequent to the delivery of the judgment on 9 April, a Notice of Appearance was filed by the respondents on 6 May 2014.  Notwithstanding this, I am told by Ms Aghabi, who represents the applicant today, that no correspondence has been received from the respondents in relation to the orders that were made by Acting Commissioner Galwey.

8. The applicant then sought to comply with those orders and obtained three quotes for the works outlined in the orders. Two of those quotes were in the amount of $7,000 and the third in the amount of $8,976.  I have had a look at those quotes and they do cover the work that was required and covered by the orders of Acting Commissioner Galwey.

9. The applicant today seeks that I make an order quantifying the amount that is to be paid by the respondents to the applicant as a result of the orders made by Acting Commissioner Galwey. That is, those orders required the respondents to pay the applicant the cost of the cheapest quote plus an amount that is quantified in order 8, being an amount of $242.

10. The Notice of Motion that was filed together with the supporting affidavit was served on the solicitors for the respondents.  Evidence of that service is contained in the Affidavit of Service of Ms Kontozis of 26 March 2015.  That Affidavit of Service clearly shows that the Notice of Motion and the affidavit were sent by e-mail, and also by post, to the email address and the postal address of the respondents' solicitors respectively.  That service was effected on 23 March, clearly in sufficient time for the respondents to attend today in response to the Notice of Motion.  Notwithstanding this, there is no appearance by the respondents today and I am therefore required to consider making orders in their absence.

11. In light of the evidence that is before me, and the terms of the orders of Acting Commissioner Galwey, and upon satisfaction that the Notice of Motion, the orders made by the Court and the affidavit in support of the Notice of Motion have been served on the respondents through their solicitors, I am of the view that it is appropriate for me to make order 1 of the Notice of Motion filed on 19 March.

12. I indicated earlier to Ms Aghabi that, whilst such an order is not required as there is already an order for payment of that amount, I understand that an order quantifying the amount is required in order for registration of a judgment with the Local Court to enforce the Court's orders.

13. I will make order 1 of the Notice of Motion. Further, given that the order for payment was already made by Acting Commissioner Galwey and no correspondence has been received by the respondents in relation to the payment of that amount, the applicant was, therefore, put to the costs of putting on this Notice of Motion and seeking an order from the Court. In light of that, it is entirely appropriate that the respondents pay the applicant's costs of the Notice of Motion up to today’s date, as agreed or assessed.

14. As a result, the terms of my orders are as follows:

1. That the respondents pay the applicant the sum of $7,242;

2. That the respondents pay the applicant the costs of the Notice of Motion filed 19 March 2015 up to today’s date, as agreed or assessed;

3. The applicant to file and serve any evidence in support of prayer 3 of the Notice of Motion by 24 April 2015;

4. The respondents are to file and serve any evidence in reply by 8 May 2015;

5. The applicant to file and serve any evidence in reply by 15 May 2015;

6. The applicant is to file and serve an outline of submissions by 19 May 2015;

7. The respondents to file and serve an outline of submissions in response by 22 May 2015;

8. The matter is stood over to the hearing of prayer 3 of the Notice of Motion on 26 May 2015 at 10.00 am;

9. I make a direction the Registry will notify the respondents of these orders.

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Decision last updated: 05 January 2016