Zhang v Davidson (No 2)

[2020] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Davidson (No 2) [2020] NSWLEC 89

Hearing dates:

27 April 2020

Date of orders:

14 July 2020

Decision date:

14 July 2020

Jurisdiction:

Class 2

Before:

Robson J

Decision:

See orders at [72]

Catchwords:

ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Costs — Tree dispute — Whether order for costs is fair and reasonable — Costs of litigant appearing by an agent — No order as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Land and Environment Court Rules 2007 (NSW) r 3.7

Trees (Disputes Between Neighbours) Act 2006 (NSW) Pt 2A, ss 14D, 14E

Cases Cited:

Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224

Bailey v Gould [2011] NSWLEC 96

Burns v St Clair (No 2) [2015] NSWLEC 115

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14

D’Arcy v Campbelltown City Council [2003] NSWLEC 164; (2003) 126 LGERA 401

Dunford v Gosford City Council (No 3) [2015] NSWLEC 96

Fox v Ginsberg (No 3) [2011] NSWLEC 139

Grant v Kiama Municipal Council [2006] NSWLEC 70

Liverpool City Council v Moorebank Recyclers Pty Limited; Benedict Industries Pty Ltd v Minister for Planning (No 4) [2017] NSWLEC 116

McLaren v Lewis (No 2) [2011] NSWLEC 176; (2011) 183 LGERA 344

Steber v Job [2019] NSWLEC 1308

Zhang v Davidson [2020] NSWLEC 1030

Texts Cited:

Land and Environment Court Practice Note – Class 2 Tree Applications

Category:

Costs

Parties:

Jianqiu Zhang (Applicant)
Bruce Norman Davidson (Respondent)

Representation:

Counsel:
G Shapiro, solicitor (Applicant)
R Buttrose, as agent (Respondent)

Solicitors:
Hones Lawyers (Applicant)
R Buttrose, as agent (Respondent)

File Number(s):

2019/00228006

Publication restriction:

Nil

Judgment

1. Bruce Norman Davidson was the successful respondent to an application brought by Jianqiu Zhang, the owner of adjoining premises, pursuant to the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) seeking the removal of a hedge growing in the front yard of Mr Davidson’s premises in Vaucluse.

2. Mr Zhang’s application was heard onsite on 21 November 2019 by Acting Commissioner Galway. The Commissioner reserved his judgment at the conclusion of the hearing and, on 10 January 2020, dismissed Mr Zhang’s application: Zhang v Davidson [2020] NSWLEC 1030.

3. Mr Davidson now applies by notice of motion filed 7 February 2020, for an order that costs in the sum of $13,267.50, which he claims were incurred by him in defending the application, be paid by Mr Zhang.

4. The hearing of the notice of motion proceeded before me on 27 April 2020. Although Mr Davidson did not have legal representation throughout the proceedings, Mr Richard Buttrose appeared as his agent, and Mr Gavin Shapiro, solicitor, appeared for Mr Zhang.

5. For the reasons that follow, I consider it appropriate that there be no order for costs in respect of either the substantive proceedings before the Commissioner or in relation to the notice of motion.

Background

6. The background…