Feng v Giannantonio

Land and Environment Court

New South Wales

Medium Neutral Citation:

Feng v Giannantonio [2022] NSWLEC 74

Hearing dates:

7 June 2022

Date of orders:

7 June 2022

Decision date:

07 June 2022

Jurisdiction:

Class 2

Before:

Moore J

Decision:

At [21]

Catchwords:

COSTS - costs application in tree dispute proceedings - special costs rule applies - costs not to be awarded unless it is “fair and reasonable” to do so - costs’ Applicant only partially successful at substantive hearing of Trees Dispute Application - Respondents defended part of the proceedings on an incorrect and untenable legal premise - “fair and reasonable” to make partial costs order for substantive hearing and for costs hearing - appropriate to order that Respondents pay portion of the Applicant’s costs of the hearing and the costs hearing on a gross sum costs basis pursuant to s 98(4)(c) of the Civil Procedure Act 2005 - actual costs apportioned – Respondents ordered to pay Applicant’s costs in the gross sum of $5,000

Legislation Cited:

Civil Procedure Act 2005, s 98

Land and Environment Court Rules 2007, r 3.7

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 10(1)(a), 10(2)(a), 10(2)(b)

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

James v Surf Road Nominees [2004] NSWCA 475

Category:

Principal judgment

Parties:

Yi Feng (Applicant)
Ann Margaret Giannantonio (Respondent)

Representation:

Counsel:
Ms B Manugaran, solicitor (Applicant)
Mr N Giannantonio, agent (First Respondent/agent for Second Respondent)

Solicitors:
ITC Law (Applicant)

File Number(s):

182816 of 2021

Publication restriction:

No

EXTEMPORE Judgment

1. HIS HONOUR: On 25 June 2021, Ms Feng filed an application pursuant to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders that Ms Feng (the Applicant) sought in her Tree Dispute Application, set out on page 3 of that document, concerned two vegetation elements growing on the neighbouring property owned by Ms Giannantonio (the Respondent) - these were bamboo growing in the vicinity of the fence between the two properties and the fronds that were said to fall from palm trees growing on the Respondent’s property.

2. The orders sought:

1. Removal of the encroaching bamboo and installing a suitable root barrier to prevent future encroachment onto the Applicant’s property;

2. Second, to reinstate the existing dividing fence in a proper and workmanlike manner by a licensed contractor, addressing damage that was said to have been occasioned by bamboo; and

3. Finally, an order that, at such regularity as was determined by the Acting Commissioner who heard the Trees Dispute Application, there be pruning of the fronds of the palm trees that were at risk of falling on the Applicant's property.

3. The matter was assigned by the Chief Judge to Acting Commissioner Douglas; the Acting Commissioner heard the matter on 14 October 2021 and gave a brief extemporaneous decision.

4. The Applicant now seeks an order that the Respondent pay her costs of the proceedings.

5. I have a transcript of that extemporaneous decision in evidence before me, as it is appended to the affidavit of Ms…