Bailey v Gould (No 2) [2011] NSWLEC 103

Bailey v Gould (No 2) [2011] NSWLEC 103

The 12 May 2011 costs order was set aside because it was made in Mrs Bailey's absence and the evidence showed that Mr Gould's costs motion had not been received by her, or at least had not come to her attention, before the hearing. On reconsideration, the Court maintained that a costs order by way of disbursements was justified, essentially by reference to the Commissioners' reasons dismissing the tree dispute application and because the material relied on by Mrs Bailey did not provide a proper foundation for the claim for urgent removal of the tree. However, the amount was reduced: $180 for Mr Gould's filing fee, $150 for photocopying, and $495 for the arborist fee were allowed; the...

Jurisdiction
Australia
Judgment Date
20 June 2011
Procedural Posture
Class 2 Tree Dispute Between Neighbours; Costs Application / Hearing of Applicant's Notice of Motion to Set Aside a Costs Order Made in Her Absence and Reconsideration of Respondent's Costs
Outcome
The previous costs order was set aside, the applicant's notice of motion was dismissed, and the applicant was ordered to pay the respondent $645.00 by way of disbursements; otherwise no order as to costs.
Legal Topics
['application to Set Aside Costs Order Made in Absence of Party' 'discretion to Award Costs' 'disbursements' 'quantum of Costs' 'substituted Service']
['costs' 'land and Environment' 'trees Disputes Between Neighbours'] ['application to Set Aside Costs Order Made in Absence of Party' 'discretion to Award Costs' 'disbursements' 'quantum of Costs' 'substituted Service']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Between Neighbours; Costs Application / Hearing of Applicant's Notice of Motion to Set Aside a Costs Order Made in Her Absence and Reconsideration of Respondent's Costs

Legal Issues

  1. 1 ["Whether the order for costs made on 12 May 2011 should be set aside because it was made in the applicant's absence." 'Whether, upon reconsideration, the respondent should receive costs by way of disbursements.' "What amount of disbursements should be allowed, including whether credit should be given for the applicant's filing fee on the substituted service motion."]

Ratio Decidendi

The 12 May 2011 costs order was set aside because it was made in Mrs Bailey's absence and the evidence showed that Mr Gould's costs motion had not been received by her, or at least had not come to her attention, before the hearing. On reconsideration, the Court maintained that a costs order by way of disbursements was justified, essentially by reference to the Commissioners' reasons dismissing the tree dispute application and because the material relied on by Mrs Bailey did not provide a proper foundation for the claim for urgent removal of the tree. However, the amount was reduced: $180 for Mr Gould's filing fee, $150 for photocopying, and $495 for the arborist fee were allowed; the...

Court Disposition

The previous costs order was set aside, the applicant's notice of motion was dismissed, and the applicant was ordered to pay the respondent $645.00 by way of disbursements; otherwise no order as to costs.

Orders

  • ['Set aside the order for costs made on 12 May 2011.' "Dismiss the applicant's notice of motion filed on 30 May 2011." 'Order that the applicant pay to the respondent costs by way of disbursements incurred in the sum of $645.00.' 'Otherwise no order as to costs incurred by either party of and incidental to these...