O'Connor v Kerr (No. 2) [2015] NSWLEC 1542

O'Connor v Kerr (No. 2) [2015] NSWLEC 1542

It was fair and reasonable to order the applicant to pay 50% of the respondent's costs incurred after rejection of the Calderbank offer, together with the arborist's costs, as the proceedings had no reasonable prospects of success from that point. However, full legal costs were not ordered due to the non-essential nature of legal representation in Class 2 tree disputes.

Parties
Applicant: Raymond O'Connor; Respondent: Nicole Kerr
Jurisdiction
Australia
Judgment Date
23 December 2015
Procedural Posture
Tree Dispute Application / Costs Application / Post Judgment (costs Determination)
Outcome
Costs partly awarded in respondent's favour.
Legal Topics
Costs Orders, Trees (disputes Between Neighbours) Act Proceedings, Self Representation, Calderbank Offers
Environmental Law Civil Procedure Costs Orders Trees (disputes Between Neighbours) Act Proceedings Self Representation Calderbank Offers

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Parties

Raymond O'Connor

Applicant

Nicole Kerr

Respondent

Procedural Posture

Tree Dispute Application / Costs Application / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether it is fair and reasonable to order the applicant to pay the respondent's costs after dismissal of the tree dispute application
  2. 2 Whether legal representation costs should be reimbursed in Class 2 Tree Act proceedings
  3. 3 Whether delay in filing costs application affects entitlement to costs

Ratio Decidendi

It was fair and reasonable to order the applicant to pay 50% of the respondent's costs incurred after rejection of the Calderbank offer, together with the arborist's costs, as the proceedings had no reasonable prospects of success from that point. However, full legal costs were not ordered due to the non-essential nature of legal representation in Class 2 tree disputes.

Court Disposition

Costs partly awarded in respondent's favour.

Orders

  • The applicant pay 50% of the respondent's costs of the proceedings from 23 June 2015 to 29 July 2015, as agreed or assessed.
  • The applicant pay the respondent the sum of $440 for the cost of engaging the arborist to provide an expert report in the proceedings.