Lunt v Owners Corporation SP 15875

[2008] NSWLEC 1349

Land and Environment Court

of New South Wales

CITATION:

Lunt v Owners Corporation SP 15875 [2008] NSWLEC 1349

PARTIES:

APPLICANT
Jeffrey Lunt

RESPONDENT
Owners Corporation SP 15875

FILE NUMBER(S):

20415 of 2008

CORAM:

Registrar Dixon

KEY ISSUES:

Compensation - Costs - Trees :-

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006
Land and Environment Court Act 1979
Land and Environment Court Rules 2007

DATES OF HEARING:

08/08/2008

EX TEMPORE JUDGMENT DATE:

8 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr Lunt, litigant in person

RESPONDENT
Mr H. Simons, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Registrar Dixon

8 August 2008

20415 of 2008 Jeffrey Lunt v Owners Corporation SP 15875

JUDGMENT

1 The appeal concerns a tree application pursuant to s7 of the Tree (Disputes Between Neighbours) Act 2006 heard by Commissioner Brown and Acting Commissioner Thyer on 1 July 2008.

2 The Applicant, Mr Lunt sought orders from the Court for two things: the removal of trees and monetary compensation for damage to his tenants’ chattels and other repair works to his property. The Applicant claims the sum of $5,454. (including reimbursement for monetary damages paid to his tenants ordered by the Consumer, Trader and Tenancy Tribunal (CTTT))

3 The proceedings were finally resolved in favour of the Respondent and a extemporaneous decision was given on 1 July .The judgment reflects the findings given onsite and the background documentation provided as part of the proceedings.

4 The appeal is listed today to determine the Respondent’s Notice of Motion dated 24 July 2008 seeking Orders that the Applicant pay the Respondent’s costs and disbursements of the appeal.

5 The Respondent’s claim is pursuant to Regulation 3.7(1)(b) of the Land and Environment Court Rules 2007. The Respondent relies in support of its claim upon the affidavit of Howard Norman Simons sworn on 23 July 2008 and is represented by its lawyer Mr. Simons.

6 The Applicant, Mr Lunt, is again self-represented.

7 The evidence discloses that the Applicant did not call any expert evidence at the hearing but rather relied on a view of the site and oral submissions. In contrast, the Respondent was legally represented from 12 June (after the initial callover) and relied on an arboreal expert ‘s report and other evidence at the hearing.

8 The hearing date was fixed then changed to accommodate the convenience of the Applicant who was required to travel overseas.

9 The evidence discloses that the Respondent challenged the jurisdiction of the Court to deal with the compensation claim and the removal of the trees.

10 After a consideration of the evidence the Court rejected the Applicant’s claim for compensation on a number of grounds and refused to order the removal of the trees. However, this decision was not before the Respondent was put to a considerable effort and expense to defend the appeal. Apart from the expense of legal representation at the hearing and the preparation of statements by its lawyer the Respondent also engaged an arboreal expert to report on the trees. The evidence also discloses that the Respondent instructed its lawyer to carry out searches at the Council in respect of the tree preservation orders affecting the trees.

11 The evidence also discloses that the Respondent’s lawyer Mr. Simons (at a charge out rate of $380 per hour) spent time researching the relevant legislation including the competency of the compensation claim and coordinating evidence from an arborist for the hearing.

Statutory Power to award costs

12 Section 98 of the Civil Procedure Act 2005 relevantly provides that, subject to the rules of the Court, costs are in the discretion of the Court.

13 Rule 3.7 (1)(b) provides that the Court can order costs in Class 2 proceedings including tree appeals, which are referred to in s 19(h) of the Land and Environment Court Act 1979.

14 However, the rule is tempered by sub rule (2), which provides:

“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 part of any of the costs is fair and reasonable in the circumstances.”

15 I am of the opinion that it would be fair and reasonable to require the Applicant to pay the Respondent’s legal costs of the tree appeal because the Court rejected the Applicant’s appeal on all grounds.

16 The Applicant did not incur the expense of a lawyer or arboreal expert but relied on unsubstantiated claims, which were rejected by the Court.

17 It would also appear to me to be fair and reasonable that the Applicant pay the cost of the arboreal expert’s evidence, which the evidence discloses amounted to the sum of $618.

18 Although the evidence discloses that the Applicant only received the arborist report and invoices in respect of the maintenance works to the trees on the eve of the hearing the Applicant advised the Court that he did not seek an adjournment on the day of the hearing or indicate to the Court that he needed further time to retain an arborist or consider the invoices.

19 It was always open to the Applicant to make that application for an adjournment rather than allow the matter to proceed to hearing and final determination.

20 The evidence discloses that the Respondent’s total legal costs and disbursements are in the sum of $4135.00 (including an amount of $600 for the Notice of Motion hearing today). While I do not doubt that the fees claimed reflect the true legal cost of Mr. Simons’ involvement in the matter and the disbursements for the expert I am of the opinion that it would not be fair and reasonable to require the Applicant to pay that full amount. Rather as the Applicant was self represented I am of the opinion that some discount needs to be applied to the figure of $4135.

21 Accordingly, the Court orders that the Applicant pay the sum of $3000 to the Respondent within 28 days.

___________________

Susan Dixon
Registrar
Land and Environment Court
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