Unsuccessful Applicant Ordered To Pay Costs In Trees Act Case

It is well known that the Land and Environment Court has a strong predisposition against making costs orders in cases arising under the Trees (Disputes Between Neighbours) Act.   The award of costs in Trees Act cases is governed by Rule 3.7(2) of the Court’s Rules.  This Rule provides that an order for costs should not be made in cases that fall within “class 2” of the Court’s jurisdiction – which includes applications under the Trees Act – unless the Court considers that it is “fair and reasonable” to do so in the circumstances.  Furthermore, it is usual for costs orders to be confined to reimbursement of moneys expended for legal representation.  Since it has been commonplace for litigants in Trees Acts disputes to act without the assistance of a lawyer, claims for costs have not featured in these types of proceedings.

Consequently,  Justice Craig’s judgment in the case of Bailey v Gould, (2011) NSWLEC 96 is especially noteworthy.  The case represents the very first occasion where costs have been awarded in a Trees Act dispute. 

The order for costs was made in favour of the “respondent” in the proceedings -  the owner of the property on which the trees that were the subject of the Trees Act application were growing two Jacaranda trees located near the common boundary).  This respondent  (Gould) acted for himself, so there was no issue of legal costs.  Nonetheless, the Court saw fit to require the proponent of the application (Bailey) to pay the fees of Gould’s consulting arborist. Bailey was also ordered to pay additional miscellaneous costs, including the cost of having affidavits and other materials copied as well as the Court filing fee for the costs application.

Justice Craig concluded that it was appropriate to grant a costs order because he determined that the  Trees Act application that had been made by Bailey was so deficient that it did not have “reasonable prospects of success”.   His Honour commented that Bailey’s application consisted of what he described as a ”shopping list” of complaints about the Jacaranda trees, none of which had any substance.  For example, one of Bailey’s allegations related to a small stem that had grown only to the height of the dividing fence. The commissioners who presided over the hearing on the application described Bailey’s claim that this stem had damaged the fence as entirely fanciful”.  Another complaint related to alleged damage from the leaves, fruits, fronds and flowers of the jacarandas; however the commissioners found that Bailey was unable to identify any specific damage that these elements of the tree had caused.

Justice Craig observed that Bailey did not have an arborist’s report prepared in support of her claim.  While His Honour noted that it was likely that such a report would have been “dismissed out of hand” by the commissioners in the circumstances of the case, Bailey’s failure to obtain the report undoubtedly damaged her position with respect to the costs application.

The moral that should be taken from this costs judgement is very clear: A person who is considering filing a Trees Act application must carefully consider whether she/he has a sustainable case before commencing action in the Court.  It is advisable that no action be started until a report that supports the case has been prepared  by a properly qualified.  Because more and more litigants in Trees Act disputes are engaging lawyers to represent them before the Court, the adverse financial consequences of proceeding with a baseless case can be substantial.