Moase v MacMahon [2011] NSWLEC 13

Moase v MacMahon [2011] NSWLEC 13

A partial order for costs is fair and reasonable under r 3.7(2) of the Land and Environment Court Rules 2007 as the Applicants' main claims were unsuccessful, focused on an issue outside the Court's jurisdiction, and the Respondent acted reasonably in seeking legal advice; however, the Applicants' conduct was not found to be unreasonable overall, justifying only a partial award based on the sum sought in the Notice of Motion.

Parties
Applicant: Bernard Moase; Applicant: Joan Moase; Respondent: Margaret MacMahon
Jurisdiction
Australia
Judgment Date
10 February 2011
Procedural Posture
Consequential Orders / Post Substantive Judgment; Decision on Costs
Outcome
Partial costs awarded to Respondent; Applicants to pay specified costs.
Legal Topics
Costs, Trees Dispute, Compensation, Court Discretion in Costs
Environmental Law Civil Procedure Costs Trees Dispute Compensation Court Discretion in Costs

Case Brief

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Parties

Bernard Moase

Applicant

Joan Moase

Applicant

Margaret MacMahon

Respondent

Procedural Posture

Consequential Orders / Post Substantive Judgment; Decision on Costs

Legal Issues

  1. 1 Whether it is fair and reasonable to award costs in a tree dispute under the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the circumstances of the case warrant an order for costs under r 3.7 of the Land and Environment Court Rules 2007

Ratio Decidendi

A partial order for costs is fair and reasonable under r 3.7(2) of the Land and Environment Court Rules 2007 as the Applicants' main claims were unsuccessful, focused on an issue outside the Court's jurisdiction, and the Respondent acted reasonably in seeking legal advice; however, the Applicants' conduct was not found to be unreasonable overall, justifying only a partial award based on the sum sought in the Notice of Motion.

Court Disposition

Partial costs awarded to Respondent; Applicants to pay specified costs.

Orders

  • The Applicants are to pay costs in the amount of $3,220 to the Respondent.
  • The Applicants are to pay the Respondent's costs of the Notice of Motion filed 24 December 2010.