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

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

A partial costs order was fair and reasonable because the Respondent acted unreasonably by not engaging in more constructive settlement negotiations before proceedings, where the masonry wall damage caused by at least one tree on her land was obvious, the Applicant reasonably wanted a masonry rather than timber replacement wall, and the Respondent did not provide her engineering report to the Applicant until shortly before the hearing. However, the Applicant was unsuccessful in obtaining tree removal orders, so the Respondent's opposition on that issue was justified, and legal costs were not allowed because legal representation is not assumed to be essential in tree dispute matters.

Jurisdiction
Australia
Judgment Date
12 August 2011
Procedural Posture
Class 2 Tree Dispute Costs Application Under the Trees (disputes Between Neighbours) Act 2006 / Notice of Motion for Costs After Determination of the Tree Dispute in Fox V Ginsberg [2011] NSWLEC 1204
Outcome
Partial costs order made in favour of the Applicant.
Legal Topics
['costs in Class 2 Proceedings' 'unreasonable Conduct Before Commencement of Proceedings' 'partial Costs Order' 'neighbour Tree Damage to Boundary Wall']
['costs' 'tree Disputes' 'land and Environment Court Procedure'] ['costs in Class 2 Proceedings' 'unreasonable Conduct Before Commencement of Proceedings' 'partial Costs Order' 'neighbour Tree Damage to Boundary Wall']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Costs Application Under the Trees (disputes Between Neighbours) Act 2006 / Notice of Motion for Costs After Determination of the Tree Dispute in Fox V Ginsberg [2011] NSWLEC 1204

Legal Issues

  1. 1 ['Whether it was fair and reasonable under Pt 3 r 3.7 of the Land and Environment Court Rules 2007 to order costs in Class 2 proceedings.' 'Whether the Respondent acted unreasonably in the circumstances leading up to the commencement of the proceedings.' 'Whether the Applicant should recover legal costs and expert costs arising from the tree dispute.']

Ratio Decidendi

A partial costs order was fair and reasonable because the Respondent acted unreasonably by not engaging in more constructive settlement negotiations before proceedings, where the masonry wall damage caused by at least one tree on her land was obvious, the Applicant reasonably wanted a masonry rather than timber replacement wall, and the Respondent did not provide her engineering report to the Applicant until shortly before the hearing. However, the Applicant was unsuccessful in obtaining tree removal orders, so the Respondent's opposition on that issue was justified, and legal costs were not allowed because legal representation is not assumed to be essential in tree dispute matters.

Court Disposition

Partial costs order made in favour of the Applicant.

Orders

  • ['The Respondent is to pay $3,171.50 to the Applicant, not recoverable for six months from the date of the order.' 'Each party is to bear the costs of the motion.']