Ceeney v Rutter

[2025] NSWLEC 52

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ceeney v Rutter [2025] NSWLEC 52

Hearing dates:

26 May 2025

Date of orders:

26 May 2025

Decision date:

26 May 2025

Jurisdiction:

Class 2

Before:

Beasley J

Decision:

The following orders are made by consent:

(1) Within 30 days of the date of these orders, the Respondents are to remove, or engage and pay for a suitably experienced contractor to remove, all oleander tree roots remaining on the Applicant’s property the subject of the judgment of Acting Commissioner Galwey dated 12 February 2025.

(2) No order as to costs.

(3) The Applicant is to allow any access required to his property on reasonable notice and at a reasonable time of day so that the works in Order 1 be completed.

Catchwords:

NOTICE OF MOTION — Costs — Tree dispute — Orders made by consent — No orders as to costs

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW), Pts 2, 2A

Cases Cited:

Birketu v Castagnet (2022) NSWSC 1435

Cachia v Hanes & Anor (1994) 179 CLR 403; [1994] HCA 14

Ceeney v Rutter [2025] NSWLEC 1175

Category:

Costs

Parties:

Ross Douglas Ceeney (Applicant)
Gary Alan Rutter (First Respondent)
Linda Joyce Rutter (Second Respondent)

Representation:

Counsel:
R Ceeney (Self-represented) (Applicant)
G Rutter (Self-represented) (First Respondent)

File Number(s):

2024/00395980

Publication restriction:

Nil

EX TEMPORE JUDGMENT

1. Before the Court today is a Notice of Motion filed on 13 March 2025, through which the Applicant Mr Ceeney seeks “costs” and “compensation for … damages” arising out of a tree dispute matter that was determined by the judgment of Acting Commissioner Galwey on 12 February 2025: Ceeney v Rutter [2025] NSWLEC 1175.

2. The motion was supported by an affidavit of the Applicant, Ross Douglas Ceeney, dated 11 February 2025, and a further affidavit of the Applicant dated 6 May 2025. Both those affidavits were read without objection. The First Respondent Mr Rutter read two affidavits both dated 12 May 2025. Mr Rutter had also supplied the Court with written submissions dated 13 May 2025, and Mr Ceeney had filed his own written submissions in response to the Respondent’s submissions dated 19 May 2025.

3. The parties are self-represented litigants. They represented themselves at the hearing before Acting Commissioner Galwey, which was brought under the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act). The Applicant claimed that certain trees on the Respondents’ land posed a risk of damage to his land, and had caused actual damage.

4. In his judgment of 12 February 2025, the Acting Commissioner made the following orders:

1. The application is upheld to the extent of the following orders.

2. Within 30 days of the date of these orders, the Respondents are to remove, or engage and pay for a suitably experienced contractor to remove, all oleander trees along their rear boundary.

3. Within 30 days of the date of these orders, and then annually in March thereafter, the respondents, or a suitably experienced contractor they engage at their expense, are to prune all palm trees along their rear boundary to remove all dead and dying fronds along with any developing fruit.

4. The Applicant is to allow any access required to his property on reasonable notice and at reasonable times of the day for the works in Orders (2) and (3).

5. During the course of the argument before me today, Mr Ceeney clarified that in respect to the claim he made for damages, he was in effect seeking to relitigate the claim that had already been part of the claim before the Acting Commissioner. The Acting Commissioner found in his judgment that although plant material and fronds from trees on the Respondents’ property had fallen onto the Applicant’s property, they had not yet caused damage: Ceeney v Rutter at [10]. I therefore indicated to the parties that given the issue of damage and compensation had been before the Acting Commissioner and had been dealt with by him, it did not appear appropriate to seek to reopen the same subject matter before me by means of this Notice of Motion. The First Respondent made a submission to similar effect in his written submissions.

6. In relation to the claim for “costs”, at least part of that claim was for the Applicant’s own time spent preparing and arguing both the hearing before the Acting Commissioner, and this motion before me. I explained to the parties that I could not make an order for these kinds of costs: Cachia v Hanes & Anor (1994) 179 CLR 403; [1994] HCA 14; Birketu v Castagnet (2022) NSWSC 1435.

7. In relation to other claims or “costs” of the Applicant, some of these were said to be costs incurred for the hearing before the Acting Commissioner (such as for drone flights and various arborists fees), while other claims for costs related to Land Titles Office searches and ancillary administrative costs (for example, photocopying), again concerning both the hearing before the Acting Commissioner, and in relation to this motion. None of the claims were supported by any receipts or invoices, or evidence of payment. It was discussed in argument that the Court would not be able to make any such orders without a proper evidentiary basis such as the tendering of receipts and invoices, and evidence of payment and the like.

8. Despite all of the above, at the commencement of the hearing of the Notice of Motion today, while indicating (as evidenced by his affidavits) that he had complied with the orders made by the Acting Commissioner concerning the removal of the oleander trees and the pruning of the palm trees, the First Respondent admitted that roots of the oleander trees remained on the Applicant’s property (although the trees themselves had been cut down). They had subsequently been treated, but Mr Rutter offered to consent to an order to remove, or have removed, these remaining oleander roots. The parties ultimately agreed this was a suitable means of resolving the Notice of Motion, and the balance of their dispute.

9. Accordingly, the following orders are made by consent:

1. Within 30 days of the date of these orders, the Respondents are to remove, or engage and pay for a suitably experienced contractor to remove, all oleander tree roots remaining on the Applicant’s property the subject of the judgment of Acting Commissioner Galwey dated 12 February 2025.

2. No order as to costs.

3. The Applicant is to allow any access required to his property on reasonable notice and at a reasonable time of day so that the works in Order 1 be completed.

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Decision last updated: 26 May 2025