Marks v Perham (No 2)

[2020] NSWLEC 84

Land and Environment Court

New South Wales

Medium Neutral Citation:

Marks v Perham (No 2) [2020] NSWLEC 84

Hearing dates:

01 May 2020

Date of orders:

08 July 2020

Decision date:

08 July 2020

Jurisdiction:

Class 2

Before:

Robson J

Decision:

See orders at [44]

Catchwords:

ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Costs — Tree dispute — Whether order for costs fair and reasonable — No order as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Land and Environment Court Rules 2007 (NSW) r 3.7

Trees (Disputes Between Neighbours) Act 2006 (NSW) s 7

Cases Cited:

Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224

Burns v St Clair (No 2) [2015] NSWLEC 115

Dunford v Gosford City Council (No 3) [2015] NSWLEC 96

Fox v Ginsberg (No 3) [2011] NSWLEC 139

Grant v Kiama Municipal Council [2006] NSWLEC 70

Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116

Marks v Perham [2020] NSWLEC 1057

McLaren v Lewis (No 2) [2011] NSWLEC 176; (2011) 183 LGERA 344

Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125

Texts Cited:

Land and Environment Court Practice Note – Class 2 Tree Applications

Category:

Costs

Parties:

Aidan Austin Marks (First Applicant)
Ryan Mitchell Swanson (Second Applicant)
Benjamin William John Perham (Respondent)

Representation:

Counsel:
L A Walsh (Applicants)
D W Robertson (Respondent)

Solicitors:
Connor & Co Lawyers (Applicants)
Rolland Ross Lawyers (Respondent)

File Number(s):

2019/00244876

Publication restriction:

Nil

Judgment

1. Aidan Austin Marks and Ryan Mitchell Swanson (‘applicants’) were successful in an application brought against their neighbour, Benjamin William John Perham (‘respondent’) in proceedings pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’). The applicants now seek an order that the respondent pay their costs.

2. The originating application brought in Class 2 of the Court’s jurisdiction sought relief comprising orders for the removal of two trees on the respondent’s property, being a Lilly Pilly (Syzygium paniculatum) (‘T5’) and a China Doll Tree (Radermachera sinica) (‘T7’), on the basis that the trees were likely to cause damage to their property or injury to a person.

3. An onsite hearing was conducted by Acting Commissioner Galway (‘Commissioner’) on 5 December 2019 and, in a compendious decision delivered on 17 January 2020, the Commissioner granted relief to the applicants including orders that T5 be pruned and that T7 be substantially removed: Marks v Perham [2020] NSWLEC 1057.

4. By notice of motion filed 14 February 2020, the applicants seek:

“1 An order pursuant to Rule 3.7 of the Land and Environment Court Rules 2007 that the Respondent pay the Applicants' costs of the proceedings as agreed or assessed.

2   In the alternative, an order that the Respondent pay 75% of the Applicants' costs of the proceedings as agreed or assessed.

3   An order that the Respondent pay the Applicants' costs of…