Harrison & Anor v Neuer & Anor (No 2) [2015] NSWLEC 1375

Harrison & Anor v Neuer & Anor (No 2) [2015] NSWLEC 1375

It was fair and reasonable to order costs because the applicants were on notice from the respondents' solicitor and the Court that they had to establish the tree was wholly or principally on the respondents' land, yet continued proceedings without evidence satisfying that threshold jurisdictional fact. However, because legal representation in Trees Act matters is not the norm and was not shown to be necessary beyond the stage at which the jurisdictional issue had been clearly identified and the other respondents removed, the respondents were awarded two thirds of their invoiced costs rather than the full amount claimed.

Jurisdiction
Australia
Judgment Date
16 September 2015
Procedural Posture
Class 2 Tree Dispute Costs Application / Notice of Motion for Costs After Dismissal of Application Under the Trees (dispute Between Neighbours) Act 2007
Outcome
Costs awarded to the respondents in part.
Legal Topics
['whether It Was Fair and Reasonable to Award Costs' 'whether the Applicants Were Unreasonable in Commencing and Carrying on Proceedings' 'whether Legal Representation Was Necessary in a Trees Act Application' 'jurisdictional Threshold That Tree Be Wholly or Principally on Adjoining Land']
['costs' 'land and Environment' 'tree Disputes'] ['whether It Was Fair and Reasonable to Award Costs' 'whether the Applicants Were Unreasonable in Commencing and Carrying on Proceedings' 'whether Legal Representation Was Necessary in a Trees Act Application' 'jurisdictional Threshold That Tree Be Wholly or Principally on Adjoining Land']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Costs Application / Notice of Motion for Costs After Dismissal of Application Under the Trees (dispute Between Neighbours) Act 2007

Legal Issues

  1. 1 ['Whether a costs order should be made in Class 2 proceedings under rule 3.7 of the Land and Environment Court Rules 2007.' "Whether the applicants acted unreasonably in commencing and continuing proceedings despite being on notice that the tree was not wholly or principally on the respondents' land." "Whether the respondents' engagement of legal representation was reasonable and should be compensated." 'What amount of costs should be ordered.']

Ratio Decidendi

It was fair and reasonable to order costs because the applicants were on notice from the respondents' solicitor and the Court that they had to establish the tree was wholly or principally on the respondents' land, yet continued proceedings without evidence satisfying that threshold jurisdictional fact. However, because legal representation in Trees Act matters is not the norm and was not shown to be necessary beyond the stage at which the jurisdictional issue had been clearly identified and the other respondents removed, the respondents were awarded two thirds of their invoiced costs rather than the full amount claimed.

Court Disposition

Costs awarded to the respondents in part.

Orders

  • ["The applicants pay the respondents' costs in the sum of $3164.77." "The applicants pay the respondents' costs of the telephone attendance on the hearing of the notice of motion on 16 June 2015, as agreed or assessed."]