Evans v Anderson (No 2) [2011] NSWLEC 169

Evans v Anderson (No 2) [2011] NSWLEC 169

The Court found that by 28 June 2011 Mr Anderson had complied with the orders made on 21 February 2011, albeit late, and that this was before Mr Evans filed the statement of charge and notice of motion for contempt on 5 August 2011. Because there was no need to institute contempt proceedings once compliance had occurred, it was neither fair nor reasonable to award costs under r 3.7(2), and the Court would also decline to award costs under the general costs discretion.

Jurisdiction
Australia
Judgment Date
26 September 2011
Procedural Posture
Class 2 Proceedings; Notice of Motion Concerning Costs of Abandoned Contempt Proceedings / Ex Tempore Judgment on Notice of Motion
Outcome
The notice of motion was dismissed with no order for costs.
Legal Topics
['costs of Abandoned Contempt Proceedings' 'compliance With Court Orders' 'pruning Trees Under Court Orders' 'discretion to Award Costs in Class 2 Proceedings']
['costs' 'contempt' 'land and Environment' 'trees Disputes Between Neighbours'] ['costs of Abandoned Contempt Proceedings' 'compliance With Court Orders' 'pruning Trees Under Court Orders' 'discretion to Award Costs in Class 2 Proceedings']

Case Brief

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Procedural Posture

Class 2 Proceedings; Notice of Motion Concerning Costs of Abandoned Contempt Proceedings / Ex Tempore Judgment on Notice of Motion

Legal Issues

  1. 1 ["Whether Mr Anderson should pay Mr Evans' costs of contempt proceedings that were no longer pressed." "Whether the trees had been pruned in compliance with the Court's orders before the contempt proceedings were commenced." "Whether costs should be awarded under Land and Environment Court Rules 2007 r 3.7(2) or under the Court's general costs discretion."]

Ratio Decidendi

The Court found that by 28 June 2011 Mr Anderson had complied with the orders made on 21 February 2011, albeit late, and that this was before Mr Evans filed the statement of charge and notice of motion for contempt on 5 August 2011. Because there was no need to institute contempt proceedings once compliance had occurred, it was neither fair nor reasonable to award costs under r 3.7(2), and the Court would also decline to award costs under the general costs discretion.

Court Disposition

The notice of motion was dismissed with no order for costs.

Orders

  • ['The Court dismisses the notice of motion.' 'There is no order for costs.']