Zante Investments Pty Ltd v Jarvis (No 2) [2024] NSWLEC 64
Background
The parties are neighbors on New South Head Road, Rose Bay and the dispute centered around a shared 40-metre boundary. In the case Zante Investments Pty Ltd v Jarvis [2024] NSWLEC 1085, Acting Commissioner Galwey dismissed the application under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW), as the applicant failed to prove that trees on the respondents' property caused damage to a block wall on their land.
In these proceedings, the respondents sought an order that legal and expert costs totaling $63,341.50 are payable to them by the applicant.
Expert evidence
The applicant presented evidence showing that it relied on expert testimony when filing its claim, which was deemed reasonable behaviour as recognised in multiple cases (Carey v Pattinson (No 2) [2020] NSWLEC 177 at [45], and McLaren v Lewis (No 2) (2011) 183 LGERA 344; [2011] NSWLEC 176 at [23]-[24]). Evidence was presented from an arborist Mr A and two engineers, Mr ME and Mr VT.
Acting Commissioner Galwey pointed out deficiencies in the applicant's expert assessments. These deficiencies were due to the experts not investigating whether the tree roots were growing against the common wall. To address this, the applicant would have needed the respondents' consent to perform root mapping on their property, which was not an option available to the applicant. Consequently, the experts did their best given the circumstances.
The Land and Environment Court, through Pain J, found that each expert provided their rationale for believing that the trees were responsible for the wall's damage. Mr A's reasoning is summarised at [20] of the judgment, while the views of Mr ME and Mr VT are outlined at [22]-[23] and [24]-[27], respectively. Although the court did not accept their opinions, this does not imply that there were no reasonable prospects of success.
The court held that the mere fact that the applicant's claim was dismissed, that the court did not accept the expert evidence from the arborist and engineers and that the respondents' expert evidence was favored, does not justify overturning the presumptive rule that each party should bear their own costs.
The court agreed with the applicant's submission that many cases indicate that an unsuccessful party in a tree dispute is entitled to rely on expert opinions and legal advice when resisting a costs application, where each case must be evaluated based on its specific facts. In this matter, the expert evidence was deemed materially deficient by Acting Commissioner Galwey due to the fundamental failure to investigate issues that were evident from a site inspection. The judgment's observations indicate that the applicant's case lacked reasonable prospects of success. Given the presence of the wall on the respondents' land, the applicant could have acknowledged their claim lacked a proper expert basis during the hearing but did not.
It was ruled that the applicant's approach in initiating and continuing its case did not lead to the just, quick, and cheap resolution of the proceedings, as outlined in Class 2 Practice Note – Tree Applications, para 4. The initial application sought orders for substantial sums to be paid by the respondents. Relying on expert evidence that the court found to be entirely without merit should not shield an applicant from a costs claim by a respondent who had to incur significant expenses to counter that evidence, as occurred in this matter. Given the large sums claimed and the extensive work sought from the respondents, it was reasonable for the respondents to engage legal representation and obtain expert evidence from an engineer.
Pain J will be ordering that the applicant pay the respondents' legal and expert costs arising from the proceedings, including costs of the costs motion, being appropriate disbursements incurred by the respondents.
Key Takeaways:
- Expert evidence may be deemed materially deficient due to lack of fundamental investigation, as found by the Acting Commissioner in the primary case.
- If a party reasonably engaged legal representation and obtained expert evidence due to substantial sums claimed by the other party, the court may order payment of legal and expert costs arising from the proceedings.
- A case may lack reasonable prospects of success due to deficiencies in the expert evidence. This may be a key factor in a court's decision regarding costs.
Read the full decision here.
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