Low v Elliott [2008] NSWLEC 111

Low v Elliott [2008] NSWLEC 111

The determination that the threshold issue under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 was not satisfied was a preliminary question of fact, and further pursuit of the proceedings after service of Mr Castor's report was unreasonable. Therefore, it is fair and reasonable to order the Applicant to pay the Respondent's costs from the date of that report.

Parties
Applicant: Jonty Low; Respondent: Kim Elliott
Jurisdiction
Australia
Judgment Date
07 March 2008
Procedural Posture
Costs Application in Class 2 Tree Dispute Proceedings / Post Judgment Costs Determination
Outcome
Applicant to pay the Respondent's costs of the proceedings from 13 November 2007, and costs of the costs application. Final amount to be determined after party submissions.
Legal Topics
Costs in Class 2 Proceedings, Tree Disputes Between Neighbours
Environmental Law Civil Procedure Costs in Class 2 Proceedings Tree Disputes Between Neighbours

Case Brief

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Parties

Jonty Low

Applicant

Kim Elliott

Respondent

Procedural Posture

Costs Application in Class 2 Tree Dispute Proceedings / Post Judgment Costs Determination

Legal Issues

  1. 1 Whether it is fair and reasonable to award costs to the Respondent under r 3.7 of the Land and Environment Court Rules 2007 in Class 2 tree dispute proceedings

Ratio Decidendi

The determination that the threshold issue under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 was not satisfied was a preliminary question of fact, and further pursuit of the proceedings after service of Mr Castor's report was unreasonable. Therefore, it is fair and reasonable to order the Applicant to pay the Respondent's costs from the date of that report.

Court Disposition

Applicant to pay the Respondent's costs of the proceedings from 13 November 2007, and costs of the costs application. Final amount to be determined after party submissions.

Orders

  • Applicant to pay Respondent's costs of the proceedings from 13 November 2007.
  • Applicant to pay Respondent's costs of this costs application.