Saidi v Farajpour

[2022] NSWLEC 77

Land and Environment Court

New South Wales

Medium Neutral Citation:

Saidi v Farajpour [2022] NSWLEC 77

Hearing dates:

1 June 2022

Date of orders:

1 June 2022

Decision date:

01 June 2022

Jurisdiction:

Class 2

Before:

Moore J

Decision:

At [22]

Catchwords:

COSTS - costs application in tree dispute case - special costs rule applies - costs not to be awarded unless it is fair and reasonable to do so – costs’ applicant only partially successful at substantive hearing of tree dispute application - not fair and reasonable to make any costs order for substantive hearing – costs’ respondent seeks costs of costs’ hearing - costs of costs’ hearings conventionally follow the event - appropriate to order that costs applicant pay respondents’ costs of costs’ hearing - appropriate to make gross sum costs order for costs’ hearing pursuant to s 98(4)(c) of the Civil Procedure Act 2005 - actual costs discounted as conventionally appropriate - costs applicant ordered to pay costs’ respondents’ costs in the gross sum of $4875 within 28 days

Legislation Cited:

Civil Procedure Act 2005, s 98

Land and Environment Court Rules 2007, r 3.7

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, s 14F(c),

Cases Cited:

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

McDougall v Philip (2011) NSWLEC 1280

Category:

Costs

Parties:

Samir Saidi (First Applicant)
Kate Ann Saidi (Second Applicant)
Ladan Farajpour (First Respondent)
Mehran Farajpour (Second Respondent)

Representation:

Counsel:
Mr S Saidi (First Applicant – in person)
Ms H Kalarostaghi, solicitor (Respondents)

Solicitors:
Hunt & Hunt (Respondents)

File Number(s):

132861 of 2021

Publication restriction:

No

EXTEMPORE Judgment

1. HIS HONOUR: In these proceedings, the Applicants were before Acting Commissioner Galwey in a tree dispute proceeding that was filed in May 2021 pursuant to Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). They sought orders concerning trees that were located on a neighbouring property, on the basis that they severely impacted the sunlight to their property. The proposed orders set out, on page 2 of the tree dispute application, were in the following terms, in the alternative. Orders 1 to 4 were that:

1   The Respondent will remove the hedge and replant the hedge with an appropriate replacement and within 30 days.

2   The removal of the hedge will be carried out by appropriate qualified licensed and insured contractors.

3   The Respondent will pay for the removal of the hedge and the replanting of the hedge.

4   Thereafter the Respondent will maintain the replanted hedge at 2.5 metres above ground level on the identified address on a regular basis and at their expense.

2. In the alternative to those four proposed orders, the alternative suite of orders were as follows:

1   The Respondent will prune the hedge so that it will be at a height of 2.5 metres above the ground level of the nominated street address within 30 days.

2   The pruning of hedge will be carried out by appropriately qualified, licensed and insured contractors.