McLaren v Lewis (No 2) - [2011] NSWLEC 176

Land and Environment Court

New South Wales

Medium Neutral Citation: McLaren v Lewis (No 2) [2011] NSWLEC 176
Hearing dates: 7 September 2011
Decision date: 07 September 2011
Jurisdiction: Class 2
Before: Preston CJ
Decision:
The Court orders:
1. Mr Lewis' notice of motion filed 25 July 2011 is dismissed.
2. There is no order as to costs of and in relation to that notice of motion.

Catchwords: Costs - proceedings seeking pruning of high hedge obstructing view - proceedings unsuccessful - successful respondent seeks costs - respondent a litigant in person - costs claimed not "costs" within meaning of costs rules - proceedings in Class 2 of Court's jurisdiction - no order as to costs unless fair and reasonable in circumstances - respondent not establishing that fair and reasonable to order costs.
Legislation Cited: Civil Procedure Act 2005, s 98(1)
Land and Environment Court Act 1979, s 18(g)
Land and Environment Court Rules 2007, r 3.7
Trees (Disputes Between Neighbours) Act 2006, s 14B
Cases Cited: Cachia v Hanes (1994) 179 CLR 403
McLaren v Lewis [2011] NSWLEC 1170
Category: Costs
Parties: Mrs S McLaren (Applicant)
Mr G Lewis (Respondent)
Representation: Mrs S McLaren (Applicant in person)
Mr G Lewis (Respondent in person)

File Number(s): 20007 of 2011

EX TEMPORE Judgment

A successful party applies for costs

Mr Lewis was the successful respondent to an application by Mrs McLaren under s 14B of the Trees (Disputes Between Neighbours) Act 2006 "( Trees Act") that Mr Lewis prune twelve trees along the boundary between Mrs McLaren's and Mr Lewis' properties. The Court heard the application on site at Bonny Hills on 13 April 2011. At the conclusion of the hearing the Court reserved its judgment. On 28 April 2011, the Court dismissed Mrs McLaren's application: see McLaren v Lewis [2011] NSWLEC 1170. The Court found that the trees that formed a hedge did not severely obstruct views from Mrs McLaren's property and that the trees that did severely obstruct views from Mrs McLaren's property did not form a hedge: [31], [32].

Mr Lewis seeks by notice of motion dated 20 June 2011, but not filed in court until 25 July 2011, an order that Mrs McLaren pay his costs as enumerated in Annexure 1 to the notice of motion. These costs are mileage allowance for driving his car between Noosa in Queensland (where he resides) to Bonny Hills (where his rental property is)(1,645km x $0.74 = $1,217.30); three nights accommodation in or near Bonny Hills ($225); food ($200); his time spent in preparing documents (9 hours x $60 per hour = $540); his travel time (104.5 hours x $20 per hour = $2,090); his appearance time at the hearing (2.5 hours x $60 per hour = $150); and the filing fee for his notice of motion for costs ($180), giving a total of $4,602.30.

The evidence in support of the costs application

Mr Lewis relied, in support of his notice of motion, on three affidavits he had affirmed, the…

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.

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Details

Case: [2011] NSWLEC 176
Decision Date: 07 September 2011

CaseChat Overview and Summary

The appeal was heard by the Full Court of the Family Court of Australia, with the parties being Mr McLaren and Mr Lewis. The matter concerns the interpretation of a parenting order made by the Family Court in 2005, specifically regarding the access rights of Mr Lewis to his son, the child of the relationship between Mr Lewis and Mr McLaren. The appeal is brought by Mr McLaren against the decision of a single judge who had found that a particular clause in the 2005 parenting order was ambiguous and had granted Mr Lewis' application to have that clause clarified. Mr McLaren contends that the clause is not ambiguous and that the single judge erred in finding otherwise.

The primary legal issue before the court was whether the clause in the 2005 parenting order was ambiguous and required clarification. The court considered whether the language used in the clause was clear and capable of only one meaning or whether it was open to more than one interpretation. The court also considered whether the single judge had erred in his interpretation of the clause and whether he had applied the correct legal principles in reaching his decision. In examining these issues, the court considered the principles of statutory interpretation, the context in which the clause was made, and the parties' conduct before the court.

In delivering the judgment of the court, Chief Justice Ryan held that the clause in question was not ambiguous and that the single judge had erred in finding otherwise. The court found that the language used in the clause was clear and capable of only one meaning. The court also found that the single judge had not applied the correct legal principles in reaching his decision and had given insufficient weight to the context in which the clause was made. The court held that the appeal should be allowed and that the order made by the single judge should be set aside. As a result of this decision, Mr Lewis' application to have the clause clarified was dismissed, and there was no order as to costs of and in relation to that notice of motion.

Orders

Orders of the court

The Court orders:

1. Mr Lewis' notice of motion filed 25 July 2011 is dismissed.

2. There is no order as to costs of and in relation to that notice of motion.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	McLaren v Lewis (No 2) [2011] NSWLEC 176
Hearing dates:	7 September 2011
Decision date:	07 September 2011
Jurisdiction:	Class 2
Before:	Preston CJ
Decision:	The Court orders: 1. Mr Lewis' notice of motion filed 25 July 2011 is dismissed. 2. There is no order as to costs of and in relation to that notice of motion.
Catchwords:	Costs - proceedings seeking pruning of high hedge obstructing view - proceedings unsuccessful - successful respondent seeks costs - respondent a litigant in person - costs claimed not "costs" within meaning of costs rules - proceedings in Class 2 of Court's jurisdiction - no order as to costs unless fair and reasonable in circumstances - respondent not establishing that fair and reasonable to order costs.
Legislation Cited:	Civil Procedure Act 2005, s 98(1) Land and Environment Court Act 1979, s 18(g) Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006, s 14B
Cases Cited:	Cachia v Hanes (1994) 179 CLR 403 McLaren v Lewis [2011] NSWLEC 1170
Category:	Costs
Parties:	Mrs S McLaren (Applicant) Mr G Lewis (Respondent)
Representation:	Mrs S McLaren (Applicant in person) Mr G Lewis (Respondent in person)
File Number(s):	20007 of 2011