Lister v Fraser [2018] NSWLEC 25

Lister v Fraser [2018] NSWLEC 25

It was fair and reasonable to depart from the Class 2 presumption that each party bear their own costs because the Applicant commenced and maintained the Tree Application on inadequate and speculative evidence despite repeated warnings over several years that proper evidence was required to prove the nexus between the Blackbutt's roots and the alleged garage damage. The Respondents should not have been put to the expense of defending an avoidable, ill-prepared and unsubstantiated case, and, having succeeded on the costs Motion, were also entitled to their costs of that Motion.

Jurisdiction
Australia
Judgment Date
08 March 2018
Procedural Posture
Class 2 Tree Dispute Costs Motion / Notice of Motion for Costs After Dismissal of the Applicant's Tree Application
Outcome
Notice of Motion allowed; Applicant ordered to pay the Respondents' costs of the proceedings and of the Notice of Motion on a party/party basis as agreed or assessed.
Legal Topics
['costs in Class 2 Proceedings' 'fair and Reasonable Costs Orders' 'evidentiary Foundation for Tree Damage Claims' 'causation Between Tree Roots and Structural Damage' 'notice of Motion for Costs']
['costs' 'land and Environment Court Procedure' 'tree Disputes Between Neighbours'] ['costs in Class 2 Proceedings' 'fair and Reasonable Costs Orders' 'evidentiary Foundation for Tree Damage Claims' 'causation Between Tree Roots and Structural Damage' 'notice of Motion for Costs']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Costs Motion / Notice of Motion for Costs After Dismissal of the Applicant's Tree Application

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7 of the Land and Environment Court Rules 2007 to order the unsuccessful Applicant to pay the Respondents' costs of the primary proceedings." 'Whether the Applicant commenced or maintained the Tree Application without reasonable prospects of success or without a proper evidentiary foundation.' "Whether the Applicant had been forewarned of the need to prove a nexus between the Blackbutt's roots and the alleged damage to his garage." 'Whether the Respondents should recover their costs of the Notice of Motion.']

Ratio Decidendi

It was fair and reasonable to depart from the Class 2 presumption that each party bear their own costs because the Applicant commenced and maintained the Tree Application on inadequate and speculative evidence despite repeated warnings over several years that proper evidence was required to prove the nexus between the Blackbutt's roots and the alleged garage damage. The Respondents should not have been put to the expense of defending an avoidable, ill-prepared and unsubstantiated case, and, having succeeded on the costs Motion, were also entitled to their costs of that Motion.

Court Disposition

Notice of Motion allowed; Applicant ordered to pay the Respondents' costs of the proceedings and of the Notice of Motion on a party/party basis as agreed or assessed.

Orders

  • ["Pursuant to rule 3.7 of the Land and Environment Court Rules 2007, the Applicant is to pay the Respondents' cost of the proceedings on a party/party basis as agreed or assessed." "The Applicant is to pay the Respondents' costs of the Notice of Motion on a party/party basis as agreed or assessed."]