The Owners - Strata Plan 46498 v Evagelakos
[2022] NSWLEC 1353
•05 July 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: The Owners – Strata Plan 46498 v Evagelakos [2022] NSWLEC 1353 Hearing dates: 14 February 2022 Date of orders: 05 July 2022 Decision date: 05 July 2022 Jurisdiction: Class 2 Before: Froh R Decision: The Court orders that:
(1) The Court grants the Motion.
Catchwords: Costs – Notice of Motion – Land and Environment Court Rule 3.7 – whether costs fair and reasonable
Legislation Cited: Civil Procedure Act 2005, s 98
Land and Environment Court Rules 2007, r 3.7
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509
Category: Costs Parties: The Owners – Strata Plan 46498 (Applicant)
Kalliopi Evagelakos (Respondent)Representation: Counsel:
Solicitors:
C Figaro (Solicitor) (Applicant)
M Seymour (Respondent)
Strata Title Lawyers (Applicant)
A Plus Legal (Respondent)
File Number(s): 2020/361816 Publication restriction: No
Judgment
-
This is an application for costs in Class 2 proceedings made by the Applicant in relation to a tree dispute under the Trees (Disputes Between Neighbours) Act 2006 (the Act) determined in The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509. In that case the Applicant sought the removal of bamboo and the madeira vine that was impacting its property and the boundary fence separating the Applicant and Respondent's respective properties in Oatlands.
-
The Commissioner made orders granting the removal of the bamboo and madeira vine from both the Applicant and Respondent’s properties at the Respondent’s expense and the replacement of the boundary fence to be shared equally between them. The Commissioner made detailed orders for these works.
-
Costs in Class 2 proceedings are to be considered under r 3.7 of the Land and Environment Court Rules 2007 (the Court Rules) as provided for in s 98 of the Civil Procedure Act 2005 (the CP Act). Section 98 of the CP Act provides:
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
-
Rule 3.7 of the Court Rules provides:
(1) This rule applies to the following proceedings:
...
(b) all proceedings in Class 2 of the Court's jurisdiction,
...
(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
(3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:
(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:
(i) in one way was, or was potentially, determinative of the proceedings, and
(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,
(b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents:
(i) that are required by law to be provided in relation to any application the subject of the proceedings, or
(ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,
(c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,
(d) that a party has acted unreasonably in the conduct of the proceedings,
(e) that a party has commenced or defended the proceedings for an improper purpose,
(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:
(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or
(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
-
The Notice of Motion filed 26 October 2021 and heard on 14 February 2022, seeks an order for costs under r 3.7 of the Court Rules.
Evidence
-
The Applicant read two affidavits of Thomas Courtenay Bacon sworn on 20 October 2021 and 30 November 2021, respectively. The Respondent read the affidavit of Tania Kallianiotis sworn 23 November 2021. Both parties’ solicitors also filed short written submissions.
-
Acting Commissioner Galwey who heard the substantive proceedings set out a summary of the efforts the Applicant and individual property owners within the Applicant’s property have made to attempt to resolve the dispute with the Respondent. The Applicant has also provided evidence of the numerous attempts it made over a number of years to resolve the dispute that was the subject of the substantive proceedings.
Whether Respondent acted unreasonably in the lead up to commencement of proceedings
-
The Applicant's claim for costs is made in reliance on r 3.7(3)(c) of the Court Rules which identifies circumstances in which it might be fair and reasonable to make a costs order and includes that a party has acted unreasonably in the lead up to the commencement of proceedings. The affidavit of Mr Bacon demonstrates that the Applicant has attempted on several occasions for about two years to raise the issue of the bamboo and madeira vine impacting its property and the boundary fence. The Respondent countered by offering to contribute $1000 to the cost of replacing the fence. This was not considered acceptable by the Applicant as it did not address issues of the bamboo and madeira vine.
-
The Respondent opposed the costs order sought on the basis that the usual position in Class 2 proceedings is that each party pays its own costs and that an award of costs that is fair and reasonable is not justified in this case. She submitted that her decision to contest the orders sought in the Class 2 proceedings was not unreasonable conduct and that her experts had advised her that the bamboo and madeira vine did not need to be removed and that the dividing fence did not need to be replaced in its entirety and that it was not unreasonable for her to refuse the invitations to settle.
Consideration
-
The Commissioners' decision was that the bamboo and madeira vine should be removed at the Respondent’s cost and the boundary fence replaced.
-
The Applicant has incurred the costs of engaging a solicitor and obtained an arborist report to assist in the presentation of its case. The focus of the Applicant's submissions are the circumstances leading up to the commencement of Class 2 proceedings.
-
The chronology of this dispute demonstrates that there has been correspondence between the parties initiated by the Applicant for two years concerning the bamboo and madeira vine and damage being caused to the boundary fence and the Applicant’s property. Given that no agreement could be reached between the parties I consider the Applicant had no alternative but to commence these proceedings.
-
The Respondent submitted that she acted reasonably. I do not agree. It is apparent from the judgment of Galwey AC that something had to be done about the bamboo, the madeira vine and the boundary fence, the damage caused was obvious and that the Respondent's bamboo and madeira vine was the cause. Greater efforts to settle the matter could have been made on the Respondent's part.
-
Balancing up all these circumstances suggests that it is fair and reasonable that I make a costs order in the Applicant's favour.
Order
-
The Court orders that:
The Court grants the motion.
S Froh
Registrar of the Court
**********
Decision last updated: 05 July 2022
1
3