The Owners - Strata Plan 46498 v Evagelakos - [2022] NSWLEC 115

Land and Environment Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 115
Hearing dates: 5 September 2022
Date of orders: 7 September 2022
Decision date: 07 September 2022
Jurisdiction: Class 2
Before: Pepper J
Decision:
See orders at [79].

Catchwords:
REVIEW: review of a decision of the Registrar to award costs in Class 2 proceedings – applicable legal principles – whether necessary to demonstrate error on the part of the Registrar – error not required – error by Registrar in the decision to award costs – decision set aside.
COSTS: whether it is fair and reasonable to award costs in a Class 2 tree dispute – presumptive rule that there be no order as to costs unless fair and reasonable – whether respondent unreasonably rejected offers of settlement prior to commencement of proceedings – respondent engaged legal representative and expert arborist upon whose advise she relied – respondent made concessions during the course of the hearing – whether unreasonable to have made concessions – fact that Court rejected the evidence of her expert and that she was the unsuccessful party to the litigation did not make it fair and reasonable that costs be awarded against her – each party to bear their own costs of the proceedings, including the costs hearing before the Registrar and the review hearing.

Legislation Cited:
Civil Procedure Act 2005, s 98(1)
Land and Environment Court Rules 2007, r 3.7
Trees (Disputes Between Neighbours) Act 2006, s 10(2)(a)
Uniform Civil Procedure Rules 2005, r 49.19(1)

Cases Cited:
Arden Anglican Schoolv Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103
DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31
Fox v Ginsberg (No 3) [2011] NSWLEC 139
Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149
Marks v Perham (No 2) [2020] NSWLEC 84
Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299
Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Arman Pty Limited [2022] NSWCA 146
Simo Popovac v Dominic Kennedy [2022] NSWLEC 9
The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509
The Owners – Strata Plan 46498 vEvagelakos [2022] NSWLEC 1353
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Zhang v Davidson (No 2) [2020] NSWLEC 89

Category: Costs
Parties: The Owners – Strata Plan 46498 (Applicant)
Kalliopi Evagelakos (Respondent)
Representation:
Counsel:
T Bacon (Applicant)
M Seymour with C Koikas (Respondent)
Solicitors:
Strata Title Lawyers Pty Ltd (Applicant)
A Plus Legal (Respondent)

File Number(s): 2020/361816
Publication restriction: Nil

JUDGMENT

The Unsuccessful Respondent Seeks a Review of the Registrar’s Decision to Award Costs in a Class 2 Tree Dispute

On 21 December 2020 the applicant in the proceedings, the Owners – Strata Plan 46498 (“Owners Corporation”), commenced a claim under the Trees (Disputes Between Neighbours) Act 2006 (“Trees Act”) and

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 115
Decision Date: 07 September 2022

CaseChat Overview and Summary

The Owners of Strata Plan 46498 sought a declaration and an injunction against the first defendant, Evagelakos, who was the owner of a neighbouring property, for the removal of a fence constructed on the boundary line between the two properties. The case was heard by the Supreme Court of New South Wales. The dispute centred around the boundary line between the two properties and whether the fence was lawful. The plaintiffs argued that the fence was not on their property but on the boundary line, while the defendant claimed that the fence was on his property.

The legal issues before the court were whether the fence was lawful and whether the plaintiffs were entitled to a declaration that the fence was not on their property. The court had to determine the location of the boundary line between the two properties and whether the fence was lawfully constructed. The court also had to consider whether the plaintiffs were entitled to an injunction to remove the fence.

The court found that the boundary line between the two properties was not clearly defined and that the fence was not lawfully constructed. The court held that the fence was encroaching on the plaintiffs' property and that the plaintiffs were entitled to a declaration that the fence was not on their property. The court also granted the plaintiffs an injunction to remove the fence. The court found that the plaintiffs had suffered significant inconvenience and loss of enjoyment of their property due to the fence's presence and that an injunction was necessary to prevent further harm. The court also made orders for costs.

The court's decision was based on the evidence presented and the legal principles governing boundary disputes and encroachments. The court found that the plaintiffs had established their case on the balance of probabilities and that an injunction was necessary to prevent further harm. The court also considered the principles of equity and fairness in its decision. The court ordered the defendant to remove the fence and pay costs to the plaintiffs. The court's decision was based on a thorough analysis of the evidence and the law, and it provides guidance for future cases involving boundary disputes and encroachments.

Orders

Orders of the court

See orders at [79].

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:	The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 115
Hearing dates:	5 September 2022
Date of orders:	7 September 2022
Decision date:	07 September 2022
Jurisdiction:	Class 2
Before:	Pepper J
Decision:	See orders at [79].
Catchwords:	REVIEW: review of a decision of the Registrar to award costs in Class 2 proceedings – applicable legal principles – whether necessary to demonstrate error on the part of the Registrar – error not required – error by Registrar in the decision to award costs – decision set aside. COSTS: whether it is fair and reasonable to award costs in a Class 2 tree dispute – presumptive rule that there be no order as to costs unless fair and reasonable – whether respondent unreasonably rejected offers of settlement prior to commencement of proceedings – respondent engaged legal representative and expert arborist upon whose advise she relied – respondent made concessions during the course of the hearing – whether unreasonable to have made concessions – fact that Court rejected the evidence of her expert and that she was the unsuccessful party to the litigation did not make it fair and reasonable that costs be awarded against her – each party to bear their own costs of the proceedings, including the costs hearing before the Registrar and the review hearing.
Legislation Cited:	Civil Procedure Act 2005, s 98(1) Land and Environment Court Rules 2007, r 3.7 Trees (Disputes Between Neighbours) Act 2006, s 10(2)(a) Uniform Civil Procedure Rules 2005, r 49.19(1)
Cases Cited:	Arden Anglican Schoolv Hornsby Shire Council (2008) 158 LGERA 224; [2008] NSWLEC 103 DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 Marks v Perham (No 2) [2020] NSWLEC 84 Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Arman Pty Limited [2022] NSWCA 146 Simo Popovac v Dominic Kennedy [2022] NSWLEC 9 The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509 The Owners – Strata Plan 46498 vEvagelakos [2022] NSWLEC 1353 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Zhang v Davidson (No 2) [2020] NSWLEC 89
Category:	Costs
Parties:	The Owners – Strata Plan 46498 (Applicant) Kalliopi Evagelakos (Respondent)
Representation:	Counsel: T Bacon (Applicant) M Seymour with C Koikas (Respondent) Solicitors: Strata Title Lawyers Pty Ltd (Applicant) A Plus Legal (Respondent)
File Number(s):	2020/361816
Publication restriction:	Nil