The Owners - Strata Plan 46498 v Evagelakos

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:
C Figaro (Solicitor) (Applicant)
M Seymour (Respondent)

Solicitors:
Strata Title Lawyers (Applicant)
A Plus Legal (Respondent)

File Number(s):

2020/361816

Publication restriction:

No

Judgment

1. 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.

2. 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.

3. 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.

4. 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…