Tou v Maskiney - [2010] NSWLEC 105

Land and Environment Court

of New South Wales

CITATION: Tou v Maskiney [2010] NSWLEC 105

PARTIES:
APPLICANTS
lat Sang Tou and Hing Hing Hilda Tou
RESPONDENT
Charles Moutledge Maskiney

FILE NUMBER(S): 20919 of 2009

CORAM: Preston CJ

KEY ISSUES: COSTS :- tree dispute - applicant neighbour successful in obtaining orders for tree removal and compensation - whether fair and reasonable to order respondent tree owner to pay costs - whether unreasonable conduct by tree owner in the circumstances leading up to the litigation - partial costs order made

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Evans v Maclean Shire Council [2004] NSWLEC 89; (2004) 133 LGERA 270
Grant v Kiama Municipal Council [2006] NSWLEC 70
Oshlack v Richmond River Council (1998) 193 CLR 72
Tou v Maskiney [2010] NSWLEC 1068

DATES OF HEARING: 25 May 2010

EX TEMPORE JUDGMENT DATE: 25 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms H Sin (solicitor)
SOLICITORS
Helen Sin Legal Pty Limited
RESPONDENT
Ms K Welshman
SOLICITORS
T.H. Walker Solicitors and Conveyancers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

25 May 2010

20919 OF 2009

TOU V MASKINEY
JUDGMENT

1 HIS HONOUR: Mr and Mrs Tou have applied for an order that their neighbour, Mr Maskiney, pay their costs of the proceedings Mr and Mrs Tou brought in the court under the Trees (Disputes Between Neighbours) Act 2006.

2 The proceedings were heard and determined by Commissioner Fakes on 22 March 2010. Commissioner Fakes ordered Mr Maskiney to arrange and pay for the removal of a Casuarina tree growing on Mr Maskiney's land which had caused damage to certain property on Mr and Mrs Tou's land; to pay Mr and Mrs Tou a specified amount in compensation for that property damage; and to arrange and pay for a plumber to clear a specified length of the sewer on Mr and Mrs Tou's land: see Tou v Maskiney [2010] NSWLEC 1068 at [22].

3 Proceedings brought by Mr and Mrs Tou are in Class 2 of the Court's jurisdiction. Under Part 3 rule 3.7 of the Land and Environment Court Rules 2007 costs for proceedings in Class 2 ordinarily are not awarded. Rule 3.7(2) provides:

“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.”

4 Mr and Mrs Tou, nevertheless, submit that the making of a costs order is fair and reasonable in the circumstances. Although a range of circumstances was referred to in Mrs Tou's affidavit, at the hearing of the motion for costs, Mrs Sin, the solicitor for Mr and Mrs Tou, relied only on the factor that Mr Maskiney had acted unreasonably in the circumstances leading up to the commencement of the proceedings: see rule 3.7(3)(c) and see also Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15(e)] and cases therein referred…

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.

Continue reading Tou v Maskiney

Details

AGLC: Tou v Maskiney [2010] NSWLEC 105
Case: [2010] NSWLEC 105
Decision Date: 25 May 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Mr and Mrs Tou brought proceedings against their neighbour, Mr Maskiney, under the Trees (Disputes Between Neighbours) Act 2006. The applicants sought orders for the removal of a tree on Mr Maskiney's property that had caused damage to their property and compensation for that damage. The applicants were successful in their proceedings. They now seek an order that Mr Maskiney pay their costs. Under the relevant legislation and Court rules, the Court is not to make an order for the payment of costs unless it considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. The applicants rely on the fact that Mr Maskiney acted unreasonably in the circumstances leading up to the commencement of the proceedings.

The Court found that Mr Maskiney had acted unreasonably in the circumstances leading up to the commencement of the proceedings. This makes it fair and reasonable to make an order for costs in favour of Mr and Mrs Tou. However, the Court does not consider that Mr Maskiney should pay the whole of the costs of the proceedings. The Court considers that Mr Maskiney's offer of 12 February 2010 was reasonable and indeed was similar to the orders ultimately made by Commissioner Fakes. The Court therefore considers that any order for costs should be restricted in time up to and including the court appearance on 15 February 2010 but not afterwards.

The formal court orders are that the respondent is to pay the applicants' costs of the proceedings up to and including the court appearance on 15 February 2010, as agreed or assessed; and the respondent is to pay the applicants' costs of the notice of motion filed 19 April 2010 for costs, as agreed or assessed.

Orders