Cheng v Robertson

[2024] NSWLEC 1416

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cheng v Robertson [2024] NSWLEC 1416

Hearing dates:

Notice of Motion, 12 June 2024

Date of orders:

22 July 2024

Decision date:

22 July 2024

Jurisdiction:

Class 2

Before:

Froh R

Decision:

The Court orders that:

(1) The motion is dismissed.

Catchwords:

COSTS – notice of motion – Land and Environment Court Rule 3.7 – whether costs fair and reasonable

Legislation Cited:

Land and Environment Court Rules 2007, r 3.7

Cases Cited:

Cheng v Robertson [2024] NSWLEC 1226

Category:

Costs

Parties:

Scott Robertson (First Applicant on the motion)
Bo Robertson (Second Applicant on the motion)
Lissa Cheng (First Respondent on the motion)
John Bridge (Second Respondent on the motion)

Representation:

Counsel:
B Robertson (Self-represented) (Second Applicant on the motion)
L Cheng (Self-represented) (First Respondent on the motion)

File Number(s):

2024/41828

Publication restriction:

Nil

JUDGMENT

1. This matter is a Notice of Motion whereby the Respondents in the substantive proceedings, Scott Alan Robertson and Bo Robertson, are seeking costs from the Applicants, John Bridge and Lissa Cheng the under r 3.7 of the Land and Environment Court Rules 2007 (Rules).

2. Mr and Mrs Robertson filed an affidavit that although executed and witnessed, was purported to be sworn by both Mr and Mrs Robertson in the same document. This is irregular and as such the document was not sought to be read as evidence during the hearing of the motion for costs and was instead used by Mrs Robertson to guide her submissions on costs.

3. Mrs Robertson claims costs for;

1. Arborist report in the amount of $1000

2. Plumbers report in the amount of $1045

3. Compensation for allegedly poisoned plants (unquantified)

4. Cost of restoring driveway in the amount of $12,760

4. Mrs Robertson was informed during the hearing of the motion that compensation for the plants she alleges were poisoned are not recoverable under r 3.7 of the Rules, nor is such a claim within the jurisdiction of the Land and Environment Court.

5. Mrs Robertson was similarly informed that the costs she is claiming concerning her driveway were not raised and determined by the Commissioner in the hearing of the substantive proceedings and, accordingly, it is not within the Court’s power to award costs for the restoration of the driveway under r 3.7 of the Rules.

6. As such, I have not considered these claims further and the claim for compensation in respect of allegedly poisoned plants and the restoration of the Robertsons’ driveway are dismissed.

7. I now turn to the costs Mrs Robertson claims for the plumber and the arborist reports that have been prepared for and tendered as evidence in the substantive proceedings. Mrs Robertson submitted that she is entitled to an order for costs for these two reports under r 3.7 of the Rules as she believes the Applicants acted unreasonably leading up to the commencement of the proceedings, that they acted unreasonably in the conduct of the proceedings, that the Applicants commenced the proceedings for an improper purpose and that the proceedings…