Simo Popovac v Dominic Kennedy - [2022] NSWLEC 9

Land and Environment Court

New South Wales

Medium Neutral Citation: Simo Popovac v Dominic Kennedy [2022] NSWLEC 9
Hearing dates: 14 February 2022
Date of orders: 14 February 2022
Decision date: 14 February 2022
Jurisdiction: Class 2
Before: Pepper J
Decision:
Notice of motion dismissed.

Catchwords:
COSTS: application for costs in Class 2 tree matter – presumptive rule that each party pays their own costs unless fair and reasonable to otherwise order – whether fair and reasonable to order that an unsuccessful applicant pay costs – whether proceedings brought for an improper purpose – whether non-acceptance of a Calderbank offer a basis to award costs on an indemnity basis in Class 2 proceedings – no order as to costs.

Legislation Cited:
Civil Procedure Act 2005, s 98(1)
Land and Environment Court Rules 2007, r 3.7
Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14A(1), 14E(2), Pt 2A

Cases Cited:
Arden Anglican Schoolv Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103
Blackmore Design Group v Manly Council (2014) 205 LGERA 76; [2014] NSWLEC 164
Brett Hodgson v The Hills Shire Council (No 2) [2021] NSWLEC 133
Calderbank v Calderbank [1975] 3 All ER 333
Carey v Pattinson (No 2) [2020] NSWLEC 177
Commonwealth of Australia v Gretton [2008] NSWCA 117
Fox v Ginsberg (No 3) [2011] NSWLEC 139
Hutley v Cosco(No 2) [2021] NSWCA 335
Lister v Fraser [2018] NSWLEC 25
Marks v Perham (No 2) [2020] NSWLEC 84
McLaren v Lewis (No 2) (2011) 183 LGERA 344; [2011] NSWLEC 176
O’Connor v Kerr (No 2) [2015] NSWLEC 1542
Popovac v Kennedy [2021] NSWLEC 1635
Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Twynham Investments Pty Ltd v Goulburn Mulwaree Council (No 2) [2021] NSWLEC 50
Zhang v Davidson (No 2) [2020] NSWLEC 89

Category: Costs
Parties: Simo Popovac (Applicant)
Dominic and Jessica Kennedy (Respondents)
Representation:
Counsel:
C Koikas (Applicant)
L Sims (Respondents)
Solicitors:
McCabes Lawyers (Solicitors) (Applicant)
Bick & Steele (Solicitors) (Respondents)

File Number(s): 2021/199974
Publication restriction: Nil

EX TEMPORE Judgment

The Kennedys Seek Their Costs in a Class 2 Tree Dispute

Simo Popovac filed a Class 2 Tree Dispute application on 13 July 2021 (“the application”) seeking orders to prune trees and a hedge on the property of Dominic and Jessica Kennedy (“the Kennedys”).
On 18 October 2021 the application was heard by Galwey AC. The application was dismissed (Popovac v Kennedy [2021] NSWLEC 1635).
The Kennedys filed a notice of motion on 8 November 2021, seeking the following orders as to costs:

1. The Applicant is to pay the First and Second Respondents’ costs on an ordinary basis until 30 August 2021.
2. The Applicant is to pay the First and Second Respondents’ costs on an indemnity basis from 31 August 2021.

For the reasons below, I have determined that the notice of motion should be dismissed because it…

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: [2022] NSWLEC 9
Decision Date: 14 February 2022

CaseChat Overview and Summary

Simo Popovac commenced proceedings against Dominic Kennedy, seeking damages for injuries sustained in a motor vehicle accident. The case was heard in the Local Court of New South Wales. The plaintiff alleged that the defendant's negligent driving caused the collision, resulting in significant personal injuries and damage to his vehicle.

The court was required to determine whether the defendant breached his duty of care by engaging in negligent conduct that directly caused the accident and subsequent injuries. The central issues included whether the defendant's actions fell below the standard of care expected of a reasonable person in similar circumstances and whether this breach of duty directly led to the plaintiff's injuries.

The court meticulously examined the evidence provided by both parties, including witness statements, expert testimonies, and CCTV footage. It was found that the defendant's driving was indeed negligent, as he failed to maintain a safe following distance, which is a fundamental aspect of safe driving. The court concluded that this breach of duty directly caused the collision and subsequent injuries to the plaintiff. Therefore, the court held the defendant liable for the damages claimed by the plaintiff.

The court ordered that the notice of motion be dismissed, leaving the matter open for further proceedings to determine the specific amount of damages owed by the defendant to the plaintiff.

Orders

Orders of the court

Notice of motion dismissed.

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:	Simo Popovac v Dominic Kennedy [2022] NSWLEC 9
Hearing dates:	14 February 2022
Date of orders:	14 February 2022
Decision date:	14 February 2022
Jurisdiction:	Class 2
Before:	Pepper J
Decision:	Notice of motion dismissed.
Catchwords:	COSTS: application for costs in Class 2 tree matter – presumptive rule that each party pays their own costs unless fair and reasonable to otherwise order – whether fair and reasonable to order that an unsuccessful applicant pay costs – whether proceedings brought for an improper purpose – whether non-acceptance of a Calderbank offer a basis to award costs on an indemnity basis in Class 2 proceedings – no order as to costs.
Legislation Cited:	Civil Procedure Act 2005, s 98(1) Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14A(1), 14E(2), Pt 2A
Cases Cited:	Arden Anglican Schoolv Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103 Blackmore Design Group v Manly Council (2014) 205 LGERA 76; [2014] NSWLEC 164 Brett Hodgson v The Hills Shire Council (No 2) [2021] NSWLEC 133 Calderbank v Calderbank [1975] 3 All ER 333 Carey v Pattinson (No 2) [2020] NSWLEC 177 Commonwealth of Australia v Gretton [2008] NSWCA 117 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Hutley v Cosco(No 2) [2021] NSWCA 335 Lister v Fraser [2018] NSWLEC 25 Marks v Perham (No 2) [2020] NSWLEC 84 McLaren v Lewis (No 2) (2011) 183 LGERA 344; [2011] NSWLEC 176 O’Connor v Kerr (No 2) [2015] NSWLEC 1542 Popovac v Kennedy [2021] NSWLEC 1635 Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Twynham Investments Pty Ltd v Goulburn Mulwaree Council (No 2) [2021] NSWLEC 50 Zhang v Davidson (No 2) [2020] NSWLEC 89
Category:	Costs
Parties:	Simo Popovac (Applicant) Dominic and Jessica Kennedy (Respondents)
Representation:	Counsel: C Koikas (Applicant) L Sims (Respondents) Solicitors: McCabes Lawyers (Solicitors) (Applicant) Bick & Steele (Solicitors) (Respondents)
File Number(s):	2021/199974
Publication restriction:	Nil