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

1. 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].

1. 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

1. Mr Lewis relied, in support of his notice of motion, on three affidavits he had affirmed, the first on 20 June 2011, the second on 11 July 2011 and the third on 1 September 2011.

1. In his affidavit of 20 June 2011, Mr Lewis says that on Sunday 10 April 2011, three days before the hearing of Mrs McLaren's application on Wednesday 13 April 2011, he telephoned Mrs McLaren "to plead with her to not proceed with the court case, as she was certain to lose her application. I said to her in very strong terms that if she lost the case I would be asking her to pay my costs as I would have to drive from Queensland to Bonny Hills during school holidays" (para 6). Mr Lewis also said to Mrs McLaren that it seemed to him that her actions were vindictive and vexatious (para 8). Mrs McLaren subsequently emailed Mr Lewis and asked that he not contact her again. He said he complied with this request (para 9), although he did inform her that he would be ringing the Court on Monday to ask if he could claim costs against her (para 10).

1. Mr Lewis said he telephoned the Court on Tuesday and was advised that "costs were claimable and that I should have a solicitor write this letter rather than doing it myself" (para 11). The next day after the Court delivered judgment on 28 April 2011, Mr Lewis said he instructed his solicitor to write a letter to Mrs McLaren claiming Mr Lewis' costs (para 13). On 25 May 2011, Mr Lewis' solicitor wrote a letter of demand to Mrs McLaren claiming payment of Mr Lewis' costs in the amount of $4,602.30 (para 16 and annexure 3).

1. On 14 June 2011, Mrs McLaren's solicitors replied to Mr Lewis' solicitor denying liability to pay Mr Lewis' alleged expenses, noting that the Court is not to make an order for cost unless the Court considers that the making of an order as to the whole or any part of the cost is fair and reasonable in the circumstances and further noting that any application for an order for cost should have been within 28 days of the final orders in the proceedings (para 17 and Annexure 4).

1. Mr Lewis' affidavit of 11 July annexed letters and email correspondence between the parties or their agents or solicitors. One of the letters was a letter from a real estate agent, who had been employed by Mrs McLaren to sell her home, dated 1 July 2011, in which he asked for Mr Lewis' consent to the trimming of the trees at no cost to Mr Lewis (para 2 and Appendix 1).

1. In his third affidavit of 1 September 2011, Mr Lewis responds to Mrs McLaren's affidavit of 31 August 2011. Mr Lewis says that when he spoke to Mrs McLaren on 10 April 2011 he was strong and determined but not intimidating. He was concerned that Mrs McLaren was forcing him to take a five day journey during school holidays that he did not want to take. So he tried to impress upon Mrs McLaren the impossibility of her winning the case and the seriousness of his intention to claim costs (para 5). Mr Lewis says that the fence and the trees on the common boundary have been the cause of a long standing feud between Mr Lewis' family and Mrs McLaren. That is the reason he says Mrs McLaren's application to the Court under the Trees Act was vexatious and vindictive (para 6). Mr Lewis says that this was illustrated by the request by Mrs McLaren's real estate agent, after the Court had given judgment, for his consent to trim the trees to a point to which Mr Lewis had earlier agreed (para 7). Mr Lewis also referred to a letter from Port Macquarie Council ("the Council") to Mr Lewis concerning the application of the Council's tree preservation order to the trees (para 8).

1. At the hearing, Mr Lewis relied upon the Council's letter, which was dated 17 March 2011, to Mr Lewis stating that all but two of the twelve trees are protected by the Council's Tree Preservation Order - Private Land Policy, that pruning by way of ornamental shaping or pruning to optimise or enhance a view or outlook would require Council's consent, and that the Council was unlikely to grant consent for those purposes.

The submissions in support of the costs application

1. At the hearing, Mr Lewis' submissions for a costs order in his favour are: first, prior to Mrs McLaren applying to the Court, he had made a reasonable offer to trim the trees, which Mrs McLaren had refused; secondly, after Mrs McLaren had applied to the Court, he had sent a copy of the Council's letter to Mrs McLaren concerning the application of the tree preservation order and the unlikelihood of the Council granting consent under that order, which should have demonstrated to Mrs McLaren that there was a "near certainty that she could not win" the proceedings; thirdly, Mr Lewis had pleaded with Mrs McLaren to drop the case three days before the hearing, but Mrs McLaren had refused; fourthly, Mrs McLaren's application to the Court was vexatious and vindictive; fifthly, Mr Lewis had warned Mrs McLaren that if he had to travel to Bonny Hills for the hearing of her application he would be asking for his costs; and sixthly, Mr Lewis was in the event successful as Mrs McLaren's application was dismissed by the Court.

The evidence in defence of the costs application

1. Mrs McLaren opposed Mr Lewis' application for costs and submitted the Court should not make an order for the payment of costs. Mrs McLaren relied on her affidavit of 31 August 2011. Mrs McLaren agreed that Mr Lewis, in his telephone call to her on 10 April 2011, had said that if she lost the case he would be asking her to pay his costs. She says he spoke in a very intimidating manner (para 3). Mrs McLaren denied her actions were vindictive and vexatious (para 4).

The submissions in defence of the costs application

1. Mrs McLaren's arguments opposing the making of costs order are: first, there was no necessity for Mr Lewis to incur the travelling and accommodation expenses; secondly, Mrs McLaren's conduct during the proceedings was reasonable: she did not fail to provide any information or documents required in the proceedings or which were required to enable the Court to gain a proper understanding of and give proper consideration to her application under the Trees Act ; thirdly, Mrs McLaren's conduct leading up to the commencement of the proceedings was reasonable; and fourthly, Mr Lewis did not make his application for an order of costs within the time constraint of 28 days of the final orders being made.

The Court's power to order costs

1. The Court has power to order costs under s 98(1) of the Civil Procedure Act 2005. However, this power is subject to the rules of court. Part 3 r 3.7 of the Land Environment Court Rules 2007 deals with costs in certain proceedings, including all proceedings in Class 2 of the Court's jurisdiction. Mrs McLaren's application to the Court under s 14B of the Trees Act is in Class 2: s 18(g) of the Land and Environment Court Act 1979 .

1. Rule 3.7(2) 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 any part of the costs is fair and reasonable in the circumstances."

1. Rule 3.7(3) sets out some circumstances in which the Court might consider that the making of a cost order is fair and reasonable, including that: the proceedings involve a potentially dispositive preliminary question (para (a)); a party has failed to provide or unreasonably delayed in providing information or documents required by law or necessary to enable a proper understanding and consideration of the application (para (b)); a party has acted unreasonably in the circumstances leading up to commencement of the proceedings (para (c)); a party has acted unreasonably in the conduct of the proceedings (para (d)); a party has commenced or defended the proceedings for an improper purpose (para (e)); and a party has commenced or continued to claim or maintain a defence where the claim or defence did not have reasonable prospects of success or was otherwise unreasonable (para (f)).

1. The Court has also adopted under s 76 of the Land and Environment Court Act the Practice Note - Class 2 Tree Applications. Paragraph 55 of that practice note provides that:

"Where a Commissioner has heard and determined a tree application, any party seeking an order for costs of the proceedings must apply for costs by notice of motion filed within 28 days of the final orders in the proceedings."

1. The costs for which the Civil Procedure Act and the Land and Environment Court Rules provide are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his case: Cachia v Hanes (1994) 179 CLR 403 at 409, 410 and 414. A litigant in person can, however, be reimbursed for certain types of out of pocket expenses incurred in and for the purposes of litigating the proceedings.

Costs claimed not "costs" within costs rules

1. The costs claimed by Mr Lewis in Annexure 1 to his notice of motion are not monies paid or liabilities incurred for professional legal services. The time spent by Mr Lewis in driving to and from the hearing, in appearing at the hearing and in preparing documents are not "costs" within the meaning of the rules dealing with costs: Cachia v Hanes at 409, 410 and 414. A litigant in person is not entitled to travelling expenses as an out of pocket expense incurred to attend the hearing: Cachia v Hanes at 417. This would cover Mr Lewis' claims for mileage, accommodation and food expenses. Hence, the only expense which could be claimed by Mr Lewis as an out of pocket expense is the filing fee for his notice of motion seeking costs. However, this is not an expense incurred in the substantive proceedings brought by Mrs McLaren but rather is an expense in Mr Lewis' subsequent application for costs.

1. Accordingly, Mr Lewis' motion for an order for payment of his costs must fail for the simple reason that the reimbursement for work done or expenses incurred by Mr Lewis, which he seeks in his notice of motion, are not "costs" within the meaning of s 98 of the Civil Procedure Act or r 3.7 of the Land and Environment Court Rules . As his motion for cost must fail, there is no basis for reimbursing the filing fee for a notice of motion which fails.

1. Even if there were to have been costs within the meaning of the rules, I do not consider it is fair and reasonable in the circumstances to make an order for payment of costs. The usual position for proceedings under the Trees Act is that the Court will not make an order for 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: r 3.7(2).

Not fair and reasonable to order costs

1. I do not consider Mr Lewis has established circumstances in which the making of a cost order would be fair and reasonable. I do not consider the evidence establishes that Mrs McLaren acted unreasonably leading up to commencement of, in commencing or in conducting the proceedings under the Trees Act .

1. The letter from the Council to Mr Lewis in which the Council said that the Council's tree preservation order applied to two of the twelve trees and that the Council would be unlikely to approve under its tree preservation order either ornamental shaping or pruning to enhance a view does not make Mrs McLaren's application to the Court under the Trees Act unreasonable. The Trees Act provides for a different means of obtaining approval for removal or pruning of trees. With the introduction of Pt 2A of the Trees Act , the Court also has power to approve the pruning of hedges which severely restrict views. The two regimes - the Council's tree preservation order and the Trees Act - are different. It is not necessarily unreasonable to seek to invoke the latter in circumstances where the former may not have reasonable prospects of success.

1. I do not consider the evidence has established that Mrs McLaren's bringing of an application under the Trees Act was vexatious or vindictive. Having brought the application, Mrs McLaren was entitled to have it heard by the Court. I do not consider it vexatious or vindictive to not acquiesce to Mr Lewis' plea that the case be dropped before Mrs McLaren's application had even been heard. The fact that Mr Lewis would need to travel to the hearing for a longer distance or time than might otherwise be the case, because he is an interstate owner, is not a reason why Mrs McLaren should have dropped the case and not have the Court hear her application.

1. The fact that Mrs McLaren was ultimately unsuccessful in her application under the Trees Act is not sufficient in itself. Mr Lewis' bare warnings without substantiation by reference to evidence in the proceedings or reasoning, given only a few days before the hearing, that he considered Mrs McLaren would lose, that she should drop the case but if she didn't drop the case, he would be asking for her to pay his costs, are also not sufficient in the circumstances.

1. For these reasons, Mr Lewis' notice of motion applying for an order for costs should be dismissed. Mrs McLaren does not seek her costs of the motion.

ORDERS

Accordingly, 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.

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Decision last updated: 07 October 2011