Lister v Fraser

[2018] NSWLEC 25

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lister v Fraser [2018] NSWLEC 25
Hearing dates:	1 February 2018
Date of orders:	08 March 2018
Decision date:	08 March 2018
Jurisdiction:	Class 2
Before:	Molesworth AJ
Decision:	See orders at [63]
Catchwords:	COSTS – tree dispute – whether fair and reasonable to order the unsuccessful applicant to pay costs – applicant’s evidence deficient despite being forewarned of the requisite standard – order for costs made
Legislation Cited:	Civil Procedure Act 2005 s 98 Land and Environment Court Act 1979 s 36 Trees (Disputes Between Neighbours) Act 2006 s 10(2) Land and Environment Court Rules 2007 rr 3.7, 3.10
Cases Cited:	Bailey v Gould [2011] NSWLEC 96 Burns v St Clair (No 2) [2015] NSWLEC 115 Fang v Li [2017] NSWLEC 1503 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Grant v Kiama Municipal Council [2006] NSWLEC 70 Harrison v Neuer (No 2) [2015] NSWLEC 1375 Lister v Fraser [2017] NSWLEC 1707 Low v Elliott [2008] NSWLEC 111 O'Connor v Kerr (No 2) [2015] NSWLEC 1542 Macdonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211 Patane v Singh [2016] NSWLEC 13 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Song v Hackney (No 2) [2016] NSWLEC 155 Robson v Leischke [2008] NSWLEC 152
Texts Cited:
Category:	Costs
Parties:	Gerry Lister (Applicant) Richard Fraser and Manette Fraser (Respondents)
Representation:	Counsel: Ms J Lazzaro (Solicitor for Applicant) – hearing Mr L T Livingston (Applicant) – submissions Mr Bolger (Respondents) – hearing and submissions   Solicitors: Goldrick Farrell Mullan (Applicant) Fordham Lawyers (Respondents)
File Number(s):	2017/248211
Publication restriction:

Judgment

OVERVIEW

1. The primary hearing in these proceedings occurred before Acting Commissioner Fakes on 30 November 2017, with the Acting Commissioner handing down her decision on 8 December 2017. The subject of the proceedings is a Eucalyptus pilularis (Blackbutt) growing at the rear of 15 Cultowa Road, Pymble. That property is owned by the Respondents. Abutting that property to the rear is 14 Cross Street, Pymble, the property owned by the Applicant.

2. Before the Acting Commissioner, Gerry Lister, the Applicant, contended that the roots of the Blackbutt growing at the rear of his neighbours’ property had damaged his garage. The Applicant’s neighbours, Richard and Manette Fraser, are the Respondents in the proceedings. The Applicant, pursuant to a Class 2 Application dated 15 August 2017, applied under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking, amongst other things, the removal of the tree and the payment, by the Respondents, of $35,560.00 for the rectification of the damage. I shall refer to the primary proceedings, as heard by the Acting Commissioner, as the Tree Application.

3. Apart from the damage allegedly caused by the roots of the Respondents’ Blackbutt, the Applicant was concerned that if the walls of the garage were to collapse, then such collapse could cause injury. Additionally, a large green branch was alleged to have fallen from a Eucalypt onto the roof of the…