Maurici v Kaldor

[2025] NSWLEC 20

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maurici v Kaldor [2025] NSWLEC 20

Hearing dates:

31 October 2024

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Class 2

Before:

Robson J

Decision:

See orders at [70]

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), Pt 2A, ss 4, 7, 14A, 14B

Cases Cited:

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

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

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

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

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

Maurici v Kaldor [2024] NSWLEC 1267

Maurici v Kaldor (No 2) [2024] NSWLEC 1310

Simo Popovac v Dominic Kennedy [2022] NSWLEC 9

Texts Cited:

Land and Environment Court Practice Note – Class 2 Tree Applications

Category:

Costs

Parties:

Anthony Phillip Maurici (Applicant)
Andrew Gabriel Kaldor (First Respondent)
Renata Kuzena Kaldor (Second Respondent)
Transport for NSW (Third Respondent)

Representation:

Counsel:
J Potts SC with A Cameron (Applicant)
T Poisel (First and Second Respondents)
C Koikas (Third Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
MinterEllison (First and Second Respondents)
Hunt & Hunt Lawyers (Third Respondent)

File Number(s):

2023/00304389

Publication restriction:

Nil

JUDGMENT

Introduction and outcome

1. By notice of motion filed 9 July 2024, Anthony Phillip Maurici seeks an order that Andrew Gabriel Kaldor, Renata Kuzena Kaldor (together, the ‘Kaldors’) and Transport for NSW (‘TfNSW’), the respondents in proceedings brought by Mr Maurici pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’), pay his costs of the proceedings.

2. For the reasons that follow, I consider that there should be no order for costs in relation to these proceedings.

Structure of judgment

3. Given the extensive evidence and submissions received in relation to this costs motion, I will provide a precis of the background facts which will provide context for the parties’ submissions. Further facts, some controversial, will be noted in my consideration of the parties’ submissions.

Evidence

4. The Court received extensive evidence comprising over 800 pages of documentation as well as CCTV footage. In support of the motion, Mr Maurici read three affidavits sworn by him on 8 July 2024, 5 August 2024 and 17 September 2024. The Kaldors read the affidavit of Andrew Gabriel Kaldor affirmed 27 August 2024, and TfNSW read the affidavit of Hasti Kalarostaghi affirmed 27 August 2024. In addition to the extensive material in, and exhibited to, the affidavits, each of the parties provided detailed written and oral submissions.

Precis of background

5. Mr Maurici is the registered proprietor of a property in The Point Road, Woolwich, which adjoins the Lane Cove River. The Kaldors are the joint registered proprietors of a neighbouring property. The Kaldors also occupy under a lease, adjacent land owned by TfNSW situated at the rear of their land which also adjoins the land owned by Mr Maurici.

6. In 2008, Mr Maurici submitted a development application for alterations and additions to his property. The Kaldors objected to the application and since that time, based on either that objection or other more personal reasons, the relationship between the neighbours has broken down and it is common ground that there has been, for some period of time, animosity between them.

7. In 2021, Mr Maurici became concerned in relation to the presence of certain trees on the Kaldors’ land and the TfNSW land and forwarded correspondence to the Kaldors in December 2021 that first, requested the removal or pruning of certain trees which blocked certain views and created damage by leaf drop; and second, that requested payment for the cost of replacement of a boundary fence allegedly damaged by the trees.

8. Mr Maurici maintained that apart from some limited pruning, despite carefully maintaining the Kaldors’ own garden and vegetation, the particular trees had been allowed to grow bigger and affected his enjoyment of his land. Mr Maurici maintained that certain trees were planted and permitted to grow as an act of spite, reflecting the ongoing animosity between the neighbours.

9. Some of the plantings about which Mr Maurici was concerned were in planter boxes which had been installed and maintained by the Kaldors on the land owned by (and leased from) TfNSW. Mr Maurici requested TfNSW to require, under the lease, that the Kaldors take action in relation to certain trees in the planter boxes on the TfNSW land.

10. As a result of the above matters and after an unsuccessful attempt at mediation through the Community Justice Centre, Mr Maurici commenced action under the Trees Act in this Court seeking detailed orders under Pt 2 and Pt 2A against the Kaldors and TfNSW that included the removal or pruning of 22 trees, and orders to repair damage caused by the trees on 25 September 2023.

11. At the time of the commencement of these proceedings, Mr Maurici did not have legal representation and intended to conduct the proceedings without being legally represented. However, at the first directions hearing, as both the Kaldors and TfNSW appeared with legal representation and indicated that certain jurisdictional issues would be raised throughout the proceedings, Mr Maurici obtained legal representation.

12. The hearing of the application proceeded on 21 and 22 February 2024 before a Commissioner of the Court. As will be considered later in this judgment, shortly before the hearing, the Kaldors raised two apparently jurisdictional issues being first, whether the TfNSW land was unzoned; and second, whether that land was Crown land with the prospect that the Trees Act would not apply to the land. On the second day of the hearing, TfNSW acknowledged that its land was not Crown land.

13. The hearing before the Commissioner was hard-fought with extensive expert and lay evidence, and each of Mr Maurici, the Kaldors and TfNSW were represented by experienced counsel. As will be noted later in this judgment, there were a number of issues canvassed and determined at the hearing before the Commissioner including, but not limited to, whether the house being constructed or altered on Mr Maurici’s land was, because its construction had not been completed, a “dwelling”; whether reasonable effort had been made to reach agreement prior to the proceedings being commenced; and whether Mr Maurici had otherwise given proper notice of his application.

14. The Commissioner, having received extensive evidence and detailed written submissions, published his reasons for judgment on 22 May 2024 indicating that he intended to make orders in respect of 21 of the 22 trees the subject of the application and inviting further submissions from the parties in relation to discrete aspects of his findings: Maurici v Kaldor [2024] NSWLEC 1267 (‘Maurici (No 1)’).

15. On 11 June 2024 (having received further submissions), the Commissioner published a further judgment making orders for the pruning of 21 of the 22 trees in respect of both height and overhang and orders for the replacement of a boundary fence: Maurici v Kaldor (No 2) [2024] NSWLEC 1310.

Submissions

Mr Maurici’s position

16. With reference to the relevant principles noted later in this judgment, Mr Maurici makes submissions under the following four broad categories.

17. First, accepting the Court may make a costs order where the proceedings involve, as a central issue, questions of law, it is clear that certain “jurisdictional” issues raised by the Kaldors and TfNSW relating to both the “unzoned land issue” (which concerned the application of s 4(1)(a) of the Trees Act) and the “Crown land issue” (which related discretely to the TfNSW land) were questions of law which had to be considered and determined before any determination of the merits, and the consideration of which took a significant part of the hearing time. In circumstances where Mr Maurici was successful on both of those issues, he submits that it is “fair and reasonable” for him to receive his costs in relation to those issues.

18. Further, Mr Maurici submits that the Kaldors ought to be responsible for the Crown land issue because, if that issue had been properly investigated by the Kaldors prior to the hearing, that issue may not have been pressed. In respect of the unzoned land issue, the Kaldors and TfNSW maintained that “defence” throughout the hearing through to closing submissions in circumstances where Mr Maurici again succeeded on that issue.

19. Secondly, Mr Maurici submits that the Kaldors and TfNSW should bear the costs of the whole of the proceedings because they each acted unreasonably in the circumstances leading up to the commencement of proceedings. This included that the Kaldors ignored correspondence requesting that the trees be pruned or removed, and the Kaldors’ failure to engage in settlement discussions before the commencement of proceedings in circumstances where the whole of the proceedings could have been avoided if they had appropriately engaged in settlement discussions and, at least, trimmed the boundary trees to a reasonable height and overhang. Instead, Mr Maurici was forced to commence proceedings to achieve that outcome.

20. Mr Maurici says that TfNSW acted unreasonably prior to the commencement of the proceedings because it did not exert its contractual powers under its lease to resolve Mr Maurici’s claims in respect of the trees planted on the TfNSW land in circumstances where TfNSW merely contacted Mr Kaldor once by telephone to suggest “topping” of certain trees. Moreover, if TfNSW had become involved at that early stage, it may never have been joined in the proceedings and its conduct, which Mr Maurici submits was unreasonable, should result in a costs order.

21. Thirdly, the Kaldors ought to bear the costs as they acted unreasonably in the conduct of the proceedings by putting in issue each element of Mr Maurici’s claim and moreover, defending the proceedings for an improper purpose mainly “to cause damage, inconvenience and cost given the animosity between the neighbours”. Mr Maurici’s senior counsel submitted that the Kaldors “consciously and deliberately […] put [Mr Maurici] to proof on every issue, to throw every obstacle in the way of the Court granting any relief at all, including raising various legal or jurisdictional issues which they said precluded the relief that was sought, either at all or in large part” (Tcpt, 31 October 2024, p 9(35)).

22. Fourthly, the Kaldors, and TfNSW, “escalated” the proceedings to a level which forced Mr Maurici to engage lawyers in circumstances where his evidence makes plain that he commenced the proceedings, and was prepared to conduct the hearing, without legal representation which would have had the effect that the parties would not have incurred the vast majority of their costs. As such, it was the respondents who turned an “ordinary” tree dispute into “adversarial litigation”.

23. In the above circumstances, and given the result of the proceedings, Mr Maurici submits that it is fair and reasonable for the Kaldors and TfNSW to pay his costs of the proceedings.

The Kaldors’ position

24. The Kaldors note that the Commissioner, during the hearing that led to the judgment in Maurici (No 1), dealt with a notice of motion filed by the Kaldors seeking to set aside a notice to produce issued by Mr Maurici, and that the Court found that the notice to produce did not serve a forensic purpose and the Kaldors were “wholly” successful in relation to this motion.

25. The Kaldors point to the fact that the Commissioner was required to consider and determine whether the Trees Act applied to certain trees (designated T14-T22) situated on the TfNSW land in circumstances where the Court accepted the Kaldors’ position that the relevant land was “unzoned”. Although Mr Maurici was successful on that issue, there is nothing in the judgment in Maurici (No 1) that suggests the Kaldors’ argument, which clearly went to the jurisdiction of the Court, was unreasonable or untenable.

26. In relation to the issue of whether the TfNSW land was Crown land (for the purpose of s 14A(2) of the Trees Act which provides that Pt 2A does not apply to trees situated on Crown land), although the Kaldors contended that the TfNSW land was Crown land, and it was only on the second day of the hearing that TfNSW indicated its position (that the land was not Crown land) in circumstances where, immediately following this concession, the Kaldors appropriately and reasonably conceded the otherwise jurisdictional point.

27. Further, while the Kaldors raised an argument that the uncompleted building on Mr Maurici’s land was not “occupied” and therefore would not answer the description of a “dwelling” (and thereby not triggering relief pursuant to s 14B of the Trees Act), the Commissioner, having carefully analysed the issue and the submissions, found that the building was a dwelling for the purposes of the Trees Act. The Kaldors again submit that although Mr Maurici enjoyed success in this regard, again there was nothing in Maurici (No 1) to suggest that the Kaldor’s argument was unreasonable or untenable.

28. The Kaldors submit that Mr Maurici did not enjoy the “substantial” success that he claims. For example, Mr Maurici had contended that plant growth, leaf fall/litter and other debris from certain trees had caused, and were likely to cause, damage to a proposed tennis court fence; stormwater drainage; eaves of the dwelling; landscape planting and other matters, in circumstances where the Commissioner rejected those contentions. Mr Maurici was wholly unsuccessful in respect of the leaf fall/litter claim. Despite this, the Kaldors accept that the Commissioner did find that certain trees, if left unattended, could result in damage to property and so ordered certain trees to be pruned.

29. The Kaldors point to the fact that Mr Maurici had also contended that certain trees had caused damage to a boundary timber paling fence in circumstances where the Kaldors had acknowledged that certain trees had contributed to the “deviation and distortion” of the fence, and the Court found that orders for replacement of the fence and a regime of pruning and maintenance were appropriate. The Kaldors further submit that they were wholly successful in avoiding the need to remove certain trees which Mr Maurici had alleged caused damage to the fence.

30. The Kaldors also point to Mr Maurici’s contention that certain trees had caused mould growth on ceilings within the dwelling on his land in circumstances where Mr Maurici was wholly unsuccessful in respect of the compensation claim. Further, Mr Maurici was unsuccessful in relation to various contentions that certain trees were situated on a sandstone outcrop which was at risk due to root-jacking.

31. The Kaldors note that Mr Maurici enjoyed only partial success in relation to his claim involving alleged “severe” obstruction of sunlight or views from his dwelling in relation to some of the trees in circumstances where, in relation to views from his dwelling, the Commissioner accepted the expert evidence marshalled on behalf of the Kaldors over the evidence called on behalf of Mr Maurici. However, despite this, the Commissioner determined that certain views from windows were severely obstructed, and in these circumstances, Mr Maurici was partially successful in respect of the loss of views from certain windows and unsuccessful in respect of the other claimed view loss matters.

32. The Kaldors submit that, contrary to the submissions of Mr Maurici, the outcome was “fundamentally a significant success for the Kaldors” such that they should not be ordered to pay costs and, in particular, Mr Maurici’s “success” in relation to two jurisdictional issues does not entitle him to a costs order.

33. The Kaldors submit that, in relation to the parties’ conduct before the proceedings were commenced, the Commissioner did not make any finding or otherwise to suggest that their conduct was unreasonable in relation to not replying to earlier emails from Mr Maurici (on the basis that Mr Kaldor maintained that he understood mediation would occur in any event). The Kaldors submit that their evidence shows that they had no legal experience in this area of disputation, and chose to engage legal representation in circumstances where Mr Maurici’s application under the Trees Act comprised over 200 pages and contained “much technical data and legal language”. Moreover, the Kaldors submit that the Commissioner described the early attempts by Mr Maurici in relation to settlement as “perfunctory” and “somewhat formulaic”, despite the Commissioner finding that Mr Maurici had made a reasonable effort to reach agreement prior to the institution of the proceedings.

34. The Kaldors submit that their conduct was not unreasonable during the proceedings because they sought to engage various (jurisdictional) preconditions to the exercise of the Court’s power and, in all the circumstances, and at all relevant times, the Kaldors submit that they acted reasonably and were prepared to prune various of the trees if agreement was able to be reached in circumstances where Mr Maurici offered no compromise.

35. Finally, the Kaldors submit that many of Mr Maurici’s claims in relation to height, health and privacy were either dismissed or significantly moderated, and that they were fundamentally “more successful” in the proceedings than Mr Maurici based upon the relief and orders originally sought in Mr Maurici’s application.

TfNSW’s position

36. TfNSW submits that although the Court made orders in relation to certain trees on the TfNSW land, Mr Maurici could not be described as being “substantially” successful in his claim in circumstances where he originally sought orders against TfNSW which included first, damages in the sum of approximately $26,000; second, the removal of all trees on the TfNSW land the subject of the application; third, mandatory injunctions restraining further planting of trees; fourth, replacement of boundary fencing shared between Mr Maurici and the Kaldors; and fifth, various orders regarding pruning, tree removal and ongoing maintenance works concerning trees that were not situated on the TfNSW land.

37. TfNSW submits that it was not until 15 February 2024, three days before the hearing commenced, that Mr Maurici agreed to limit the orders sought against TfNSW and that he then amended his application abandoning orders sought in relation to boundary fencing and pruning relating to the trees on the TfNSW land.

38. TfNSW submits that Mr Maurici was wholly unsuccessful against TfNSW and that no order was made requiring the removal of any trees on the TfNSW land and/or the payment of damages.

39. TfNSW denies that its conduct leading up to the proceedings was unreasonable and points to the fact that the Kaldors entered a 20-year lease with the predecessor of TfNSW pursuant to which TfNSW does not have possession nor exercise care or control over the subject land, and that the trees on the TfNSW land were in fact planted by the Kaldors in planter boxes that the Kaldors had constructed without TfNSW’s prior approval (which was a breach of a clause of the lease). As such, the concerns of Mr Maurici in relation to the trees on the TfNSW land were not brought about or authorised in any way by TfNSW.

40. In response to Mr Maurici’s contention that TfNSW acted unreasonably prior to the proceedings because it had not exerted its “contractual powers” (under the lease) to resolve Mr Maurici’s claim in respect of the trees on the TfNSW land, TfNSW submits that the Court would not accept that TfNSW could have used its powers under the lease to resolve Mr Maurici’s claim and, in any event, even if TfNSW could have relied upon the lease to force the removal of trees or pruning, the fact that this conduct was not undertaken, does not make it fair and reasonable for TfNSW to pay Mr Maurici’s costs of the proceedings.

36. In relation to the unzoned land issue, TfNSW submits that the Commissioner made no express finding that the Trees Act applied to the TfNSW land. Further, even if it could be said that Mr Maurici “succeeded” on the unzoned land issue, this does not provide an entitlement to costs. Further, apart from the fact that the unzoned land issue was never finally determined by the Court, the issue was only raised by the Kaldors on 29 January 2024 shortly before the commencement of the hearing, when they filed an expert report. In any event, the fact that TfNSW advanced an argument in relation to the proper construction of s 4(1)(a) of the Trees Act, does not make it fair and reasonable that TfNSW should pay the costs in relation to the unzoned land issue. Further, the unzoned land issue was not, and was unlikely to have been, potentially determinative in the proceedings because it only concerned eight of the 22 trees that were the subject of the application, and as such it did not fall within the discrete criterion in r 3.7(3)(a)(i) of the Land and Environment Court Rules 2007 (NSW) (‘Court Rules’), that it “in one way was, or was potentially, determinative of the proceedings”.

Consideration

42. The Court’s power to order costs is derived from s 98(1) of the Civil Procedure Act 2005 (NSW) and is subject to the Court Rules.

43. Before turning to my consideration, it is appropriate to note that disputes under the Trees Act are conducted in Class 2 of the Court’s jurisdiction, to which the presumptive rule contained within r 3.7(2) of the Court Rules applies:

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

44. Further, r 3.7(3) provides a non-exhaustive list of circumstances in which an order for costs may be fair and reasonable:

(3)   Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following—

…

(c)   that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

(d)   that a party has acted unreasonably in the conduct of the proceedings,

(e)   that a party has commenced or defended the proceedings for an improper purpose,

(f)   that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where—

(i)   the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii)   to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

45. In considering the application of r 3.7 of the Court Rules, it is apposite to note that the “no discouragement” principle underlies the presumptive rule in r 3.7(2). Put simply, a person generally should not be discouraged from making or defending an application by the prospect of an adverse costs order: Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224 (‘Arden’) at [10].

46. Relevant to the present matter, subrr 3.7(3)(c), (d), (e) and (f) provide that unreasonable conduct by a party either before or in the conduct of the proceedings, or the maintenance of a defence which was without reasonable prospects of success, may justify an order for costs.

47. Although the indicia contained within in r 3.7(3) may provide some assistance when evaluating whether an order for costs is fair and reasonable, the power exercised by the Court is not confined to these matters and is instead in the broadest of terms.

48. The principles applicable to the Court’s exercise of the costs power under r 3.7 of the Court Rules are well-known: Simo Popovac v Dominic Kennedy [2022] NSWLEC 9 (‘Popovac’) at [26]-[35]; Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116 at [10]-[14]; Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [30].

49. The no discouragement principle is particularly important in the context of applications made pursuant to the Trees Act, as these applications are subject to the Court’s Practice Note Class 2 – Tree Applications, which is designed to facilitate the just, quick and cheap resolution of tree disputes through an appropriate and easily accessible procedure. This principle also speaks to the fact that Class 2 proceedings are intended to be an efficient and cost-effective means of facilitating justice in tree disputes between neighbours and that the statutory regime has been designed to enable parties to represent themselves: Fox v Ginsberg (No 3) [2011] NSWLEC 139 at [9]. Therefore, there must be considerations of “sufficient weight to overcome the presumptive rule”: Arden at [9].

50. In approaching the task before me, I consider it appropriate, first, to identify whether there is anything within the judgments of the Commissioner which indicates that an order for costs may be fair and reasonable; and second, to look to the conduct of the parties both before and during the hearing for any indication that any such order may be appropriate: Marks v Perham (No 2) [2020] NSWLEC 84 at [23]-[24]; Popovac at [28]-[29].

51. The relationship between the primary parties is, and has been for a significant period of time, unfortunate. It is common ground that there has been significant disaffection, hostility and animus which, according to the evidence which I do not repeat, springs from intercourse that took place between the parties many years before the matters the subject of these proceedings. At the parties’ behest, I have read the whole of the evidence which, as noted above, comprises documentation in excess of 800 pages. Much of it is simply irrelevant. I have also reconsidered the detailed written and oral submissions from each of the parties.

52. To descend into and record the detail of the background material and past conduct between the parties, and the allegations made in the evidence I have read, would be a waste of judicial ink.

53. Suffice it to say that the lens through which the Court looks at an application for costs in Class 2 proceedings under the Trees Act is particularly well understood and is noted in a summary fashion above. Adopting those principles, and refraining from expressing my concern that the conduct of these proceedings (including this argument for costs) leaves a great deal to be desired, and that each of the primary parties has placed before the Court sworn evidence in relation to allegations of spiteful, invasive and generally unbecoming conduct descending into minutiae regarding such matters as the placement of dog’s excrement and the marshalling of CCTV evidence of each party’s conduct, it is not the manner in which civilised parties, even assuming the unfortunate relationship that exists between these neighbours, should conduct themselves.

54. Despite this, as noted above, I have closely considered all the affidavits (and indeed the pages of objections which, at the end of the hearing before me as I was informed, were no longer taken). Be that as it may, for the reasons that I will shortly give, I do not consider that it is just and reasonable that any costs order should be made in these proceedings including in relation to this motion.

55. I have closely read both judgments of the Commissioner. The Commissioner dealt with commendable care with each of the detailed issues raised by the parties. I have considered the nature and extent of the orders that were sought by Mr Maurici in the original (tree) application (including the nature of the material attached thereto) and have considered the manner in which the Commissioner later summarised a number of the orders that were sought in particular, and with some emphasis upon the summary in Maurici (No 1) at [85], and the final orders made.

56. In relation to the conduct prior to the commencement of the proceedings and accepting (although largely irrelevant) that the relationship between the parties had deteriorated from in or about 2008, I accept that for some years prior to the commencement of the proceedings, Mr Maurici requested that the Kaldors prune or remove certain trees. I also accept and find that the Kaldors were reluctant to do so.

57. I also accept that in relation to the various jurisdictional and other issues which I have noted in my summary of the parties’ submissions above, relating to first, whether the building that was situated on the land was in fact a “dwelling” for the purposes of the Trees Act (in particular s 14B); second, whether land (or part thereof) was unzoned and/or whether Pt 2A of the Trees Act did not apply to trees because the land owned by TfNSW was Crown land for the purpose of s 14A(2) of the Trees Act, the parties, in particular Mr Maurici, enjoyed success.

58. I am also aware that the position of TfNSW in relation to the Crown land issue (which issue had been raised relatively late) was not made clear until the second day of the hearing and that this “issue” was appropriately abandoned by the Kaldors. It is also clear that the Commissioner found in favour of Mr Maurici in relation to the dwelling issue. Despite this, I accept the position of the Kaldors that, although Mr Maurici was successful on the unzoned land issue, it could not be said that the Kaldors’ argument was unreasonable or untenable and I find the same in relation to the dwelling issue. I also accept that the Kaldors acted reasonably and responsibly in retaining legal representation.

59. In relation to the conduct before the commencement of the proceedings (and leaving aside the animosity between the parties) it is clear that for two years, Mr Maurici had requested the Kaldors to prune or remove certain trees. It is also clear that the Kaldors chose, despite having gardeners attending to their property weekly, to keep the rest of their outdoor area appropriately maintained but apparently did not attend to the requests of Mr Maurici in relation to the subject trees. However, in all the circumstances, I do not consider the Kaldors acted unreasonably in the circumstances leading up to the commencement of the proceedings.

60. Also, in relation to the conduct before the proceedings commenced, Mr Maurici, in my view not unreasonably, asked TfNSW to invoke its rights under the lease to require the trees to be maintained in a manner that was otherwise acceptable to Mr Maurici. However, I do not consider that the conduct of TfNSW was unreasonable.

61. The above facts lead me to accept that Mr Maurici had little alternative but to commence the proceedings and that these were therefore reasonably commenced, and that it was his intention to conduct it as an unrepresented litigant. I also accept that Mr Maurici, on the evidence before the Court, is a particularly experienced litigant, and I accept that his conduct in thereafter retaining legal representation was an appropriate response to the fact that the Kaldors and TfNSW had retained lawyers.

62. I find that there is nothing in the conduct of any of the parties and in particular the Kaldors and TfNSW prior to the commencement of the proceedings which I consider was of significant weight in the matter now before me.

63. In passing, as I noted above, albeit that the intention (and the practices and procedures adopted) in relation to proceedings brought in Class 2 of the Court’s jurisdiction pursuant to the Trees Act is that they are meant to be conducted in an efficient and cost-effective manner to facilitate justice in tree disputes between neighbours, and as noted above, that the statutory regime has been designed to enable parties to represent themselves, the fact that there are issues (and/or “prerequisites”) which can be described as “jurisdictional”, and the fact that parties in litigation can take a hard-nosed forensic approach in relation to all issues, as was the case here, do not on their own dictate that there should be an award of costs.

64. That being said, Mr Maurici has, on any view, enjoyed not insignificant success – although I do not find the success as being “overwhelming” in relation to the precise relief that he had otherwise sought. It is the fact, as submitted on his behalf, that there has been some relief in relation to 21 of the 22 trees the subject of the application. However, in all the circumstances, the simply stated question for the Court, is whether making a costs order in his favour would be “fair and reasonable”.

65. I have summarised above the conduct during the proceedings and the various “jurisdictional” and other issues, and, as I have found, there is little doubt that the proceedings were somewhat complex and hard-fought with extensive documentary and expert evidence covering a number of discrete areas of expertise, and I note that in relation to the various jurisdictional and other issues regarding the trees located on the TfNSW land, TfNSW generally adopted the same submissions as the Kaldors. This was not unreasonable conduct.

66. Although it is submitted on behalf of Mr Maurici, that the Kaldors “put in issue each and every element of the claim” including the jurisdictional matters I have referred to above, in all the circumstances, I do not consider that this is a persuasive submission given the manner in which the primary parties conducted the litigation.

67. Mr Maurici maintains that the Kaldors ought to be responsible for the costs at least in relation to the Crown land issue because their defence (or argument) did not have a reasonable prospect of success (and indeed was not pressed as TfNSW indicated its position on the second day of the hearing). Further, in relation to the unzoned land issue, both the Kaldors and TfNSW maintained that “defence” throughout the hearing through to closing submissions. I do not accept this position. It is clear that each of the matters raised was considered and determined by the Commissioner apparently without adverse comment.

68. In summary, Mr Maurici submits that the Kaldors and TfNSW should each bear the costs of the proceedings on the basis that they each acted unreasonably in the circumstances both leading up to the commencement of and indeed during the hearing; and further, that TfNSW had acted unreasonably prior to the proceedings being commenced because it did not exert its contractual powers. As I have noted above, I have considered all of those matters, and looking at each of the indicia under r 3.7(3), and accepting that those matters are not exhaustive, I do not consider that it is fair and reasonable to make an order that the Kaldors or TfNSW bear the costs of all, or any part of, the proceedings.

Costs

69. Given my view that there should be no award of costs in Mr Maurici’s favour because I consider that it is not just and reasonable to so order, the question arises as to the costs of this motion. For the reasons I have given, and accepting that Mr Maurici has been unsuccessful in this motion, I do not consider it just and reasonable to make any order for costs of this motion.

Orders

70. The orders of the Court are:

1. The notice of motion filed 9 July 2024 is dismissed.

2. No order as to costs.

**********

Decision last updated: 14 March 2025