Land and Environment Court
New South Wales
Medium Neutral Citation: Fox v Ginsberg (No 3) [2011] NSWLEC 139 Hearing dates: 12 August 2011 Decision date: 12 August 2011 Jurisdiction: Class 2 Before: Pain J Decision: The Court orders the Respondent to pay $3,171.50 to the Applicant which sum is not recoverable for six months from the date of this order.
Catchwords: COSTS - tree dispute - whether fair and reasonable to order respondent tree owner to pay costs - whether unreasonable conduct by tree owner in the circumstances leading up to the litigation - partial costs order made Legislation Cited: Civil Procedure Act 2005 s 98
Environmental Planning and Assessment Act 1979 s 121B
Trees (Disputes Between Neighbours) Act 2006
Land and Environment Court Rules 2007 Pt 3 r 3.7Cases Cited: Fox v Ginsberg [2011] NSWLEC 1204
Tou v Maskiney [2010] NSWLEC 105Category: Principal judgment Parties: Jenny Fox (Applicant)
Nicky Ginsberg (Respondent)Representation: Mr T Sattler (Applicant - Solicitor)
Mrs N Ginsberg (Respondent - in person)
Sattler & Associates (Applicant)
File Number(s): 20155 of 2011
EX TEMPORE Judgment
This is an application for costs in Class 2 proceedings made by the Applicant in relation to a tree dispute under the Trees (Disputes Between Neighbours) Act 2006 (the Act) determined in Fox v Ginsberg [2011] NSWLEC 1204 ( Fox No 1 ). At issue were three trees (T1, T2, T3) in the Respondent's back yard and their impact on the masonry brick wall which is on the boundary of the Applicant and Respondent's respective properties in Woollahra. The Applicant's land is lower than the Respondent's land; the circumstances are identified in Fox No 1 at [2]. The Commissioners made orders dismissing the application to remove T2 and T3 on the basis the Court did not have the necessary jurisdiction under the Act as no damage resulting from these trees was demonstrated. In relation to T1, the Commissioners accepted that this could remain as it was important to the protection and privacy of the Respondent's house. They observed that it was obvious that damage was caused by T1 to the masonry brick wall on the boundary and this was confirmed by the engineering reports the respective parties relied upon. The Commissioners made detailed orders requiring the disassembling and removal of the existing wall, cleaning of bricks, trimming of the tree roots and dead wood from T1 and T2, replacement of the wall in accordance with engineering plans and with the wall to be clad with the same bricks as before at the Respondent's cost and within 90 days of the order.
Costs in Class 2 proceedings are to be considered under Pt 3 r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) as provided for in s 98 of the Civil Procedure Act 2005 (the CP Act). Section 98 of the CP Act provides:
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court,…
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- AGLC
- Fox v Ginsberg (No 3) [2011] NSWLEC 139
- Case
- [2011] NSWLEC 139
- Decision Date
CaseChat Overview and Summary
The Court considered the evidence and submissions from both parties to determine the contractual obligations and whether they had been fulfilled. It was necessary to interpret the contract to ascertain the terms under which the respondent was to make the payment. The Court examined the correspondence and the terms of the contract to determine the nature of the obligation and the timeline for payment. After careful consideration of the arguments and evidence presented, the Court found that the respondent was indeed liable to pay the sum of $3,171.50 to the applicant.
Consequently, the Court ordered the respondent to pay the specified amount to the applicant, with the payment not being recoverable for a period of six months from the date of the order. This decision was based on the clear terms of the contract and the obligations of the respondent as per the agreement. The Court did not find any valid reason to deviate from the contractual terms and thus upheld the applicant's claim for the payment.
Orders
Orders of the court
The Court orders the Respondent to pay $3,171.50 to the Applicant which sum is not recoverable for six months from the date of this order.
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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