Patane v Singh

[2016] NSWLEC 13

Land and Environment Court

New South Wales

Medium Neutral Citation:	Patane V Singh and Anor [2016] NSWLEC 13
Hearing dates:	11 February 2016
Date of orders:	11 February 2016
Decision date:	11 February 2016
Jurisdiction:	Class 2
Before:	Moore J
Decision:	See [18] and [19]
Catchwords:	COSTS – fair and reasonable
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Civil Procedure Act 2005 Land and Environment Court Rules 2007
Cases Cited:	Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Kiama Council v Grant (2006) NSWLEC 96 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Category:	Costs
Parties:	Robert Patane (Applicant) Rashpal Singh (First Respondent) Paramjit Kaur (Second Respondent)
Representation:	Counsel: J McIntosh (Applicant) A Gibbons (Respondent)   Solicitors: H Aziz, MIC Lawyers (Applicant)
File Number(s):	15/20726
Publication restriction:	No

Judgment

1. HIS HONOUR: On 19 August 2015, Mr Patane filed an application pursuant to the Trees (Disputes Between Neighbours) Act2006 (the Trees Act) seeking orders concerning a tree located on the neighbouring property. The matter came before the Court on 21 September 2015 when directions were made, in the standard form, for the provision of evidence including a provision of evidence on behalf of the Respondents. Those directions originally provided, in direction 9, that the Respondents’ evidence and proposals for alternative orders be filed and served by 13 October 2015.

2. By agreement, on 23 October, alterations were made to the timetable that required the Applicant to provide his further evidence (if any) by 27 October, being an extension from 6 October, with the evidence to be provided by the Respondents to be provided by 9 November, that being an extension from 13 October. No evidence was filed by the Respondents within that time.

3. The decision was given by Fakes C after a hearing on site. The hearing on site took place on 27 November 2015 with the Commissioner giving her decision. Later that day, she observed (at [40] of her decision):

The hearing commenced on site. The inspection of the site, viewing of evidence and making of submissions concluded at about 10.15 am as both parties had engaged counsel. I stated that in the interests of keeping costs to a minimum I would deliver my findings and the orders by telephone at 1.45 pm that day.

She proceeded to do so - the remainder of her remarks concerning an application for an adjournment during that 1.45 pm telephone hearing not being relevant on the present application.

4. The Applicant in this motion, who is a respondent in the substantive proceedings, filed a Notice of Motion on 8 December 2015 seeking an order for costs in his favour in the amount of $7,650. That amount represents, as disclosed in the penultimate page of the material appended to the affidavit of the Respondent in the substantive proceedings/the Applicant on the motion, the full actual costs for which he had been invoiced on 30 November 2015. That is, that the application was made for an…