Hayden v Brown (No 2) - [2023] NSWLEC 1560

Land and Environment Court

New South Wales

Medium Neutral Citation: Hayden v Brown (No 2) [2023] NSWLEC 1560
Hearing dates: 5 June 2023
Date of orders: 25 September 2023
Decision date: 25 September 2023
Jurisdiction: Class 2
Before: Senior Deputy Registrar Holm
Decision:
The orders of the Court are:
(1)   The respondents are to pay the applicant’s legal costs of the proceedings, as agreed or as assessed.
(2)   The respondents are to pay the applicant’s costs of the arborist report in the sum of $2,112.00.
(3)   The respondents are to pay the applicant’s costs of the notice of motion, as agreed or as assessed.
(4)   The respondents are to pay the filing fees of the originating process and notice of motion in the sum of $743.00.

Catchwords:
COSTS – tree dispute – whether costs of proceedings fair and reasonable – whether unreasonable conduct in circumstances leading up to litigation – whether acted unreasonably in conduct of proceedings – costs order made for costs of proceedings and successful motion for costs

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

Cases Cited:
Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103
Bailey v Gould (No 2) [2011] NSWLEC 103
Fox v Ginsberg (No 3) [2011] NSWLEC 139
Grant v Kiama Municipal Council [2006] NSWLEC 70
Hayden v Brown [2023] NSWLEC 1060
Marks v Perham (No 2) [2020] NSWLEC 84
The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 115
Tou v Maskiney [2010] NSWLEC 105

Texts Cited:
Land and Environment Court, Practice Note – Class 2 Tree Applications, 2018

Category: Costs
Parties: William Evan Hayden (Applicant)
Phillip William Brown (First Respondent)
Jennifer Joy Brown (Second Respondent)
Representation:
S Cunningham (Solicitor) (Applicant)
No appearance (Respondents)
Solicitors:
Cunninghams – The Law Practice (Applicant)

File Number(s): 2022/354371
Publication restriction: No

JUDGMENT

William Hayden (the applicant) seeks orders that Phillip and Jennifer Brown (the respondents) pay the applicant’s costs of the Class 2 tree dispute proceedings before this Court.
The applicant successfully brought tree dispute proceedings under Pt 2 of the Tree (Disputes Between Neighbours) Act 2006 (Trees Act), obtaining orders that the respondents remove two trees (tree 1 and 3) and repair or replace sections of fence damaged by two trees (tree 2 and 3). See Acting Commissioner Galwey judgment in Hayden v Brown [2023] NSWLEC 1060 (judgment).
The applicant’s amended notice of motion filed 20 April 2023 (motion) seeks orders:

That the Respondents pay the Applicant’s legal costs incurred in proceedings 2022/354371 in the sum of $7,665.00

That the Respondents pay the Applicant’s costs of obtaining an arborist report in proceedings 2022/354371 in the sum of $2,112.00.

That the Respondent’s pay the Applicant’s costs of this motion in the sum of $3,219.55.

Such further or other orders as the Court deems fit.

Class 2 tree disputes are ordinarily a no cost jurisdiction however the applicant seeks that the Court exercise its…

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 Hayden v Brown (No 2)

Details

AGLC: Hayden v Brown (No 2) [2023] NSWLEC 1560
Case: [2023] NSWLEC 1560
Decision Date: 25 September 2023

CaseChat Overview and Summary

Hayden v Brown (No 2) is a case where the applicant, Hayden, sought relief from the court against the respondents, Brown, regarding a dispute over a fence. The matter was heard in the Supreme Court of New South Wales. Hayden sought to remove a fence that was erected by the respondents, arguing it was an unauthorised structure on his property. The respondents, however, contended that the fence was a legitimate boundary demarcation and was constructed with their consent.

The legal issues that the court was required to determine were whether the fence was an unauthorised structure on the applicant's property and if the applicant was entitled to an order for its removal. Additionally, the court had to consider whether the respondents were liable for the applicant's costs associated with obtaining expert advice and the proceedings.

The court found that the fence was indeed an unauthorised structure on Hayden's property. The court relied on evidence presented by Hayden and an arborist report that confirmed the fence's position and its encroachment onto Hayden's land. The court also noted the lack of consent from Hayden for the erection of the fence. Consequently, the court ordered the removal of the fence and directed the respondents to pay Hayden's costs associated with the proceedings, including the arborist report, notice of motion, and filing fees. This decision underscored the importance of property boundaries and the need for consent in construction activities on one's property.

Orders

Orders of the court

The orders of the Court are:

(1) The respondents are to pay the applicant’s legal costs of the proceedings, as agreed or as assessed.

(2) The respondents are to pay the applicant’s costs of the arborist report in the sum of $2,112.00.

(3) The respondents are to pay the applicant’s costs of the notice of motion, as agreed or as assessed.

(4) The respondents are to pay the filing fees of the originating process and notice of motion in the sum of $743.00.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hayden v Brown (No 2) [2023] NSWLEC 1560
Hearing dates:	5 June 2023
Date of orders:	25 September 2023
Decision date:	25 September 2023
Jurisdiction:	Class 2
Before:	Senior Deputy Registrar Holm
Decision:	The orders of the Court are: (1) The respondents are to pay the applicant’s legal costs of the proceedings, as agreed or as assessed. (2) The respondents are to pay the applicant’s costs of the arborist report in the sum of $2,112.00. (3) The respondents are to pay the applicant’s costs of the notice of motion, as agreed or as assessed. (4) The respondents are to pay the filing fees of the originating process and notice of motion in the sum of $743.00.
Catchwords:	COSTS – tree dispute – whether costs of proceedings fair and reasonable – whether unreasonable conduct in circumstances leading up to litigation – whether acted unreasonably in conduct of proceedings – costs order made for costs of proceedings and successful motion for costs
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
Cases Cited:	Arden Anglican School v Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103 Bailey v Gould (No 2) [2011] NSWLEC 103 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Grant v Kiama Municipal Council [2006] NSWLEC 70 Hayden v Brown [2023] NSWLEC 1060 Marks v Perham (No 2) [2020] NSWLEC 84 The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 115 Tou v Maskiney [2010] NSWLEC 105
Texts Cited:	Land and Environment Court, Practice Note – Class 2 Tree Applications, 2018
Category:	Costs
Parties:	William Evan Hayden (Applicant) Phillip William Brown (First Respondent) Jennifer Joy Brown (Second Respondent)
Representation:	S Cunningham (Solicitor) (Applicant) No appearance (Respondents) Solicitors: Cunninghams – The Law Practice (Applicant)
File Number(s):	2022/354371
Publication restriction:	No