O'Connor v Kerr (No. 2)

[2015] NSWLEC 1542

Land and Environment Court

New South Wales

Medium Neutral Citation:	O'Connor v Kerr (No. 2) [2015] NSWLEC 1542
Hearing dates:	2 October 2015
Date of orders:	23 December 2015
Decision date:	23 December 2015
Jurisdiction:	Class 2
Before:	Registrar Gray
Decision:	1.The applicant pay 50% of the respondent’s costs of the proceedings from 23 June 2015 to 29 July 2015, as agreed or assessed. 2.The applicant pay the respondent the sum of $440 for the cost of engaging the arborist to provide an expert report in the proceedings. 3.The applicant pay the respondent’s legal professional costs of the notice of motion filed 1 September 2015, as agreed or assessed.
Catchwords:	COSTS: Tree dispute application; Application dismissed on all grounds; Whether fair and reasonable to order costs
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Rules 2007 r 3.7 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Fox v Ginsberg (No 3) [2011] NSWLEC 139 O’Connor v Kerr [2015] NSWLEC 1285 Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17 Yang v Scerri [2007] NSWLEC 592
Category:	Costs
Parties:	Raymond O’Connor (Applicant) Nicole Kerr (Respondent)
Representation:	Applicant Mr O’Connor (in person) Respondent Ms Kerr (in person)
File Number(s):	20436 of 2015

JUDGMENT

1. On 11 May 2015 the applicant made an application under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) for orders concerning trees growing on an adjoining property, owned by the respondent. The application was made on the basis that the applicant alleged that the trees would cause damage to property or obstruction to sunlight in the future. The proceedings came before Commissioner Fakes for an onsite hearing on 29 July 2015 and on the same day (in O’Connor v Kerr [2015] NSWLEC 1285) she declined to make the orders sought and dismissed the application. The respondent now seeks her costs of the proceedings. That application is made by notice of motion filed 1 September 2015, and is supported by affidavits of the respondent, Ms Kerr, on 1 September and 21 September 2015.

History of the proceedings

2. The history of the proceedings can be drawn from the affidavits filed and the documents attached to the submissions filed by each of the parties, and can be summarised as follows:

• Prior to the commencement of the proceedings, the applicant wrote to the respondent in two separate but similar letters of 13 and 17 February 2015. These letters set out the applicant’s concerns regarding the trees and asked the respondent a number of questions regarding them.

• On 25 February 2015 the respondent was sent a letter from the Department of Justice Community Justice Centres advising that Mr and Mrs O’Connor sought a mediation with the respondent.

• On 5 March 2015 the respondent wrote to the applicant providing details of the trees, denying the applicant’s concerns about the trees but including a statement that she would remove the trees if they caused damage…