Simo Popovac v Dominic Kennedy [2022] NSWLEC 9

Simo Popovac v Dominic Kennedy [2022] NSWLEC 9

It would not be fair and reasonable to depart from the presumptive rule that each party bears their own costs in Class 2 tree matters. Popovac did not act so unreasonably in commencing or conducting the proceedings, nor in rejecting the Kennedys' settlement offer, as to justify a costs order in favour of the Kennedys. Calderbank offers do not automatically result in indemnity costs in Class 2 proceedings; the statutory framework governs costs discretion.

Jurisdiction
Australia
Judgment Date
14 February 2022
Procedural Posture
Class 2 Tree Dispute / Costs Application Post Dismissal
Outcome
Notice of motion dismissed.
Legal Topics
['costs in Class 2 Tree Matters' 'presumptive Costs Rule' 'no Discouragement Principle' 'calderbank Offers' 'improper Purpose' 'reasonable Prospects of Success']
['environmental Law' 'civil Procedure'] ['costs in Class 2 Tree Matters' 'presumptive Costs Rule' 'no Discouragement Principle' 'calderbank Offers' 'improper Purpose' 'reasonable Prospects of Success']

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Procedural Posture

Class 2 Tree Dispute / Costs Application Post Dismissal

Legal Issues

  1. 1 ['Whether it is fair and reasonable to depart from the presumptive rule that each party pays their own costs in a Class 2 tree dispute' 'Whether proceedings were brought for an improper purpose under r 3.7(3)(e) of the Land and Environment Court Rules 2007' 'Whether non-acceptance of a Calderbank offer can be grounds for indemnity costs in Class 2 proceedings']

Ratio Decidendi

It would not be fair and reasonable to depart from the presumptive rule that each party bears their own costs in Class 2 tree matters. Popovac did not act so unreasonably in commencing or conducting the proceedings, nor in rejecting the Kennedys' settlement offer, as to justify a costs order in favour of the Kennedys. Calderbank offers do not automatically result in indemnity costs in Class 2 proceedings; the statutory framework governs costs discretion.

Court Disposition

Notice of motion dismissed.

Orders

  • ['The notice of motion is dismissed.' 'Each party is to bear their own costs of the notice of motion.' 'The exhibits are to be returned after publication of this decision on CaseLaw.']