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

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

A costs order was not fair and reasonable because the applicants did not act unreasonably before or during the proceedings, and did not commence or continue a claim without reasonable prospects or otherwise unreasonably. The parties had made reasonable efforts to reach agreement and were close to settlement, the applicants were entitled to have the matter determined by the Court, and the Commissioner's finding that the critical view obstruction was moderate rather than severe did not make the applicants' attempt to establish severe obstruction unreasonable.

Jurisdiction
Australia
Judgment Date
20 July 2015
Procedural Posture
Class 2 Tree Dispute Costs Motion / Respondents' Notice of Motion for Costs After Dismissal of Applicants' Trees Act Application
Outcome
The respondents' notice of motion filed on 19 June 2015 is dismissed.
Legal Topics
['costs in Class 2 Proceedings' 'fair and Reasonable Costs Orders' 'severe Obstruction of Views by Trees or Hedges' 'neighbour Tree Disputes']
['costs' 'trees Disputes' 'land and Environment Court Procedure'] ['costs in Class 2 Proceedings' 'fair and Reasonable Costs Orders' 'severe Obstruction of Views by Trees or Hedges' 'neighbour Tree Disputes']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Costs Motion / Respondents' Notice of Motion for Costs After Dismissal of Applicants' Trees Act Application

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7(2) of the Land and Environment Court Rules 2007 to order the applicants to pay the successful respondents' costs." 'Whether the applicants acted unreasonably before commencement or in the conduct of the proceedings.' 'Whether the applicants commenced or continued a claim that did not have reasonable prospects of success or was otherwise unreasonable.']

Ratio Decidendi

A costs order was not fair and reasonable because the applicants did not act unreasonably before or during the proceedings, and did not commence or continue a claim without reasonable prospects or otherwise unreasonably. The parties had made reasonable efforts to reach agreement and were close to settlement, the applicants were entitled to have the matter determined by the Court, and the Commissioner's finding that the critical view obstruction was moderate rather than severe did not make the applicants' attempt to establish severe obstruction unreasonable.

Court Disposition

The respondents' notice of motion filed on 19 June 2015 is dismissed.

Orders

  • ["The respondents' notice of motion filed on 19 June 2015 is dismissed."]