Fox v Ginsberg (No 3)

[2011] NSWLEC 139

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 3.7
Cases Cited:	Fox v Ginsberg [2011] NSWLEC 1204 Tou v Maskiney [2010] NSWLEC 105
Category:	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

1. 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.

1. 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,…