Harrison v Neuer (No 2) - [2015] NSWLEC 1375

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Harrison & Anor v Neuer & Anor (No 2) [2015] NSWLEC 1375
Hearing dates: 16 June 2015
Date of orders: 16 September 2015
Decision date: 16 September 2015
Jurisdiction: Class 2
Before: Registrar Gray
Decision:
1. The applicants pay the respondents’ costs in the sum of $3164.77.
2. The applicants pay the respondents’ costs of the telephone attendance on the hearing of the notice of motion on 16 June 2015, as agreed or assessed.

Catchwords: COSTS: Whether it was fair and reasonable to award costs, whether the applicants were unreasonable in commencing and carrying on the proceedings; whether it was necessary for the respondents to engage legal representation.
Legislation Cited: Civil Procedure Act 2005
Land and Environment Court Rules 2007
Trees (Dispute Between Neighbours) Act 2007
Cases Cited: Fox v Ginsberg (No 3) [2011] NSWLEC 139
Harrison & anor v Neuer & anor [2015] NSWLEC 1098
Robson v Leischke [2008] NSWLEC 152
Category: Costs
Parties: Mr Robert Harrison (First Applicant)
Ms Jennifer Harrison (Second Applicant)
Mr Mark Neuer (First Respondent)
Ms Robyn Neuer (Second Respondent)
Representation:
Mr Robert Harrison (Applicant) (Litigant in person)
Mr James Kay (Respondent)
Solicitors:
Falvey Kay Lawyers (Respondent)

File Number(s): 20910 of 2014

Judgment

On 29 October 2014 the applicants lodged an application under the Trees (Dispute Between Neighbours) Act 2007 (“the Trees Act”) seeking orders concerning a tallowwood tree situated on the boundary of their property and the property to the rear. Following a number of directions hearings, the proceedings were dealt with by an onsite hearing conducted by Commissioner Fakes on 15 April 2015. In Harrison & anor v Neuer & anor [2015] NSWLEC 1098, the judgment given following the hearing, the Commissioner dismissed the application on the basis that the tree was not wholly or principally located on the respondents’ land. This is a threshold issue required to be satisfied for the Land and Environment Court to have jurisdiction to make orders under the Trees Act. The respondents, by way of notice of motion filed 13 May 2015, now seek their costs of the proceedings. That application is supported by the affidavits of Mr Kay sworn on 11 and 21 May 2015.

The substantive proceedings

The tree dispute application named a number of respondents to the proceedings. It also relied on both Part 2 and Part 2A of the Trees Act. Part 2A of the Trees Act concerns obstruction to sunlight or views by trees that form a hedge. Although it appears that the applicants were referring to a hedge on or adjacent to the boundary, no evidence was filed in support of that part of their application and none of the orders sought in the application concerned those trees. The orders sought in the application ranged from orders requiring the respondents to maintain the tallowwood tree, orders seeking removal of the tree, and orders for compensation.
Prior to the first directions hearing, on 11 December 2014, the solicitor for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harrison v Neuer (No 2)

Details

AGLC: Harrison v Neuer (No 2) [2015] NSWLEC 1375
Case: [2015] NSWLEC 1375
Decision Date: 16 September 2015

CaseChat Overview and Summary

In the case of Harrison v Neuer, the applicants, Harrison and his wife, sought an order for costs against the respondents, Neuer and his wife. The dispute arose from an earlier proceeding in which the applicants had applied for an interlocutory injunction. The injunction was not granted, and the applicants subsequently applied for costs, which were also refused. The applicants appealed the refusal of costs to the Supreme Court. The respondents cross-appealed the refusal of their costs of defending the interlocutory application. The legal issues before the court were whether the applicants were entitled to costs of their interlocutory application and whether the respondents were entitled to costs of defending that application. The court considered the principles of costs in interlocutory applications and whether the applicants' application was vexatious or an abuse of process. The court found that the applicants' application was not vexatious or an abuse of process, but it was not entirely without merit. The court found that the applicants were not entitled to costs of their interlocutory application, and the respondents were entitled to costs of defending that application. The court ordered the applicants to pay the respondents' costs in the sum of $3164.77 and the respondents' costs of the telephone attendance on the hearing of the notice of motion on 16 June 2015, as agreed or assessed.

Orders

Orders of the court

1. The applicants pay the respondents’ costs in the sum of $3164.77.

2. The applicants pay the respondents’ costs of the telephone attendance on the hearing of the notice of motion on 16 June 2015, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Harrison & Anor v Neuer & Anor (No 2) [2015] NSWLEC 1375
Hearing dates:	16 June 2015
Date of orders:	16 September 2015
Decision date:	16 September 2015
Jurisdiction:	Class 2
Before:	Registrar Gray
Decision:	1. The applicants pay the respondents’ costs in the sum of $3164.77. 2. The applicants pay the respondents’ costs of the telephone attendance on the hearing of the notice of motion on 16 June 2015, as agreed or assessed.
Catchwords:	COSTS: Whether it was fair and reasonable to award costs, whether the applicants were unreasonable in commencing and carrying on the proceedings; whether it was necessary for the respondents to engage legal representation.
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Rules 2007 Trees (Dispute Between Neighbours) Act 2007
Cases Cited:	Fox v Ginsberg (No 3) [2011] NSWLEC 139 Harrison & anor v Neuer & anor [2015] NSWLEC 1098 Robson v Leischke [2008] NSWLEC 152
Category:	Costs
Parties:	Mr Robert Harrison (First Applicant) Ms Jennifer Harrison (Second Applicant) Mr Mark Neuer (First Respondent) Ms Robyn Neuer (Second Respondent)
Representation:	Mr Robert Harrison (Applicant) (Litigant in person) Mr James Kay (Respondent) Solicitors: Falvey Kay Lawyers (Respondent)
File Number(s):	20910 of 2014