Franco v Mazzetti

[2022] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:

Franco v Mazzetti [2022] NSWLEC 1354

Hearing dates:

24 May 2022

Date of orders:

05 July 2022

Decision date:

05 July 2022

Jurisdiction:

Class 2

Before:

Froh R

Decision:

The Court orders that:

(1) The Notice of Motion is dismissed.

Catchwords:

Costs – Notice of Motion – Land and Environment Court Rule 3.7 – whether costs fair and reasonable

Legislation Cited:

Civil Procedure Act 2005, s 98

Land and Environment Court Rules 2007, r 3.7

Cases Cited:

Franco v Mazzetti [2022] NSWLEC 1090

Hunter v Central Coast [2017] NSWLEC 154

Category:

Costs

Parties:

Joe Franco (Applicant)
Ozlem Mazzetti (Respondent)

Representation:

J Franco (Self-represented) (Applicant)
No appearance (Respondent)

File Number(s):

2021/236725

Publication restriction:

No

Judgment

1. This matter before me is a Notice of Motion for costs sought by the Applicant against the Respondent under r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules).

2. In support of the Notice of Motion, the Applicant read his affidavit dated 18 March 2022 which set out the costs he incurred in conducting this matter. For completeness I list those costs here:

• Inhouse Consulting Engineers Report: $550

• Glenyss Laws Consulting Arborist: $935

• Land and Environment Court filing fee: $259 (Tree Dispute Application)

• Servedoc: $324.50

• Land and Environment Court filing fee: $231 (Notice of Motion substituted service)

• Land and Environment Court filing fee: $231 (Notice of Motion costs)

Total: $2,530.50

3. It is worth noting at this point that the Notice of Motion was stood over several times due to the ill health of the Applicant. The Respondent to the Motion was aware of the proceedings, but declined to take part.

4. The Applicant bears the onus of convincing the Court that an order for costs in its favour is fair and reasonable: Hunter v Central Coast [2017] NSWLEC 154 at [96].

5. The Court’s power to order costs is derived from s 98(1) of the Civil Procedure Act 2005 and subject to r 3.7(2) of the Court Rules which states that:

The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

6. Rule 3.7(3) then goes on to provide a non-exhaustive list of circumstances in which an order for costs may be fair and reasonable.

7. The Applicant submitted that in his application for costs he relied on paragraph 31(5) in judgment in the substantive proceedings delivered by Douglas AC in which the Commissioner states:

“Both parties claimed orders for reimbursement of the cost of reports, Court filing fees, and in case of Ms Mazzetti, loss of income. Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion to the Court, which is heard before the Registrar, or a Judge. Considering the outcome of the dispute, I would suggest that the Applicant rather than the Respondent may be more likely to be successful in this respect”

8. This paragraph by the Commissioner in the substantive judgment is unfortunate in that it implies that as Mr Franco has had his application to the Court upheld, that an award for costs should follow.

9. This is a misstatement of the law on how an award for costs in determined by a Registrar or a Judge in the Class 2 jurisdiction of this Court.

10. The Court only has power to award costs in Class 2 proceedings if it considers it fair and reasonable to do so under the Court Rules.

11. Having considered the evidence before me and the submissions of Mr Franco I do not consider it fair and reasonable to award costs.

Order

12. The Court orders that:

1. The Notice of Motion is dismissed.

S Froh

Registrar of the Court

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