Endicott v Esther (No 2) [2015] NSWLEC 1466

Endicott v Esther (No 2) [2015] NSWLEC 1466

Although the applicant acted unreasonably in refusing access for pruning after commencing the proceedings, it was not fair and reasonable to make a costs order because the commencement of proceedings prompted pruning that removed the immediate problem, the respondent did not give the applicant a reasonable opportunity to discontinue on terms with no order as to costs, and the deficiencies in the self-represented applicant's claim and withdrawn Part 2A claims did not justify a costs order.

Jurisdiction
Australia
Judgment Date
18 November 2015
Procedural Posture
Class 2 Tree Dispute Costs Application / Notice of Motion for Costs After Dismissal of the Applicant's Trees Act Application
Outcome
The respondent's notice of motion for costs was dismissed.
Legal Topics
['costs Discretion' 'tree Dispute Between Neighbours' 'settlement Offers' 'discontinuance' 'self Represented Litigant']
['costs' 'land and Environment Court' 'tree Disputes'] ['costs Discretion' 'tree Dispute Between Neighbours' 'settlement Offers' 'discontinuance' 'self Represented Litigant']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Costs Application / Notice of Motion for Costs After Dismissal of the Applicant's Trees Act Application

Legal Issues

  1. 1 ["Whether it was fair and reasonable under r 3.7 of the Land and Environment Court Rules 2007 to order the applicant to pay the respondent's costs of the proceedings and the notice of motion." 'Whether the applicant acted unreasonably in circumstances leading up to the commencement of proceedings or in the conduct of the proceedings.' 'Whether the applicant commenced or continued claims that did not have reasonable prospects of success or were otherwise unreasonable.' "Whether the respondent's settlement offer, which required the applicant to pay part of the respondent's costs, gave the applicant a reasonable opportunity to discontinue the proceedings."]

Ratio Decidendi

Although the applicant acted unreasonably in refusing access for pruning after commencing the proceedings, it was not fair and reasonable to make a costs order because the commencement of proceedings prompted pruning that removed the immediate problem, the respondent did not give the applicant a reasonable opportunity to discontinue on terms with no order as to costs, and the deficiencies in the self-represented applicant's claim and withdrawn Part 2A claims did not justify a costs order.

Court Disposition

The respondent's notice of motion for costs was dismissed.

Orders

  • ['The notice of motion filed on 28 August 2015 is dismissed.' 'Each party pay their own costs of the proceedings and of the notice of motion filed on 28 August 2015.']