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Breen v Clough

Breen v Clough

Case [2025] NSWCA 144 1 July 2025

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Breen v Clough [2025] NSWCA 144
Hearing dates: 3 June 2025
Date of orders: 1 July 2025
Decision date: 01 July 2025
Before: Leeming JA at [1]
Ball JA at [2]
Free JA at [52]
Decision:
Summons filed 18 March 2025 be dismissed with costs

Catchwords:
LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period
APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused

Legislation Cited:
Supreme Court Act 1970 (NSW), ss 66, 101
Surveillance Devices Act 2007 (NSW)

Cases Cited:
Breen v Clough [2017] NSWSC 1681
Burke v Frasers Lorne Pty Limited [2008] NSWSC 988
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Clough v Breen & Anor [2022] NSWSC 1026
Clough v Breen(No 4) [2023] NSWSC 1155; (2023) 413 ALR 248
Clough v Breen (No. 6) [2024] NSWSC 1634
Gibson v Drumm [2016] NSWCA 206
Harev van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Sharif v Birmingham City Council [2020] EWCA Civ 1488
Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2024] AC 983; [2023] UKSC 47
Wolverhampton City Council v Persons Unknown [2020] EWHC 759 (QB)
Wolverhampton City Council v Persons Unknown [2024] EWHC 2273 (KB)

Texts Cited:
W Covell, K Lupton, L Parsons, Covell & Lupton Principles of Remedies (8th ed,2022, LexisNexis)
ICF Spry, The Principles of Equitable Remedies (9th ed, 2014, Thomson Reuters)

Category: Principal judgment
Parties: Douglas Martin Breen (First Applicant)
Tracey Jane Dillon (Second Applicant)
Christine May Clough (Respondent)
Representation:
Counsel:
M McGirr (Applicants)
DP O’Connor (Respondent)
Solicitors:
The Legal Costs Consultants (Applicants)
Redman Hale Simpson (Respondent)

File Number(s): 2025/6974
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2025] NSWSC 1634

Date of Decision:

18 December 2024

Before:

Slattery J

File Number(s):

2020/130704

JUDGMENT

LEEMING JA: I agree with Ball JA.
BALL JA: This is the latest chapter in a long running and bitter dispute between neighbours principally concerning the use and maintenance of an inclinator that services both properties. Following the approach adopted by the primary judge, it will be convenient to refer to the property owned by the respondent, Ms Christine Clough, as Lot 116 and the property owned by the applicants, Mr Douglas Breen and his wife, Ms Tracey Dillon, as Lot 118. Ms Clough occupies Lot 116 with her husband, Mr Michael Rose.

The properties

Both properties, which are in the Sydney suburb of Lugarno, slope down from the street to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Breen v Clough

Details

AGLC: Breen v Clough [2025] NSWCA 144
Case: [2025] NSWCA 144
Decision Date: 01 July 2025

CaseChat Overview and Summary

Breen v Clough concerned a protracted dispute between neighbours regarding an easement. The applicants, Breen, had installed a CCTV camera with audio recording capabilities that pointed towards an easement used by the respondents, Clough. The primary judge had ordered the applicants to disable the audio recording function on their CCTV camera and had made further orders curtailing the applicants' rights under the easement for a period of four years. The applicants sought leave to appeal these orders.

The Court of Appeal was required to determine whether to grant the applicants leave to appeal the primary judge's orders. In considering this, the Court had to assess whether there was an issue of principle, a question of public importance, or a reasonably clear injustice that warranted granting leave to appeal.

The Court of Appeal refused leave to appeal. Their Honours reasoned that the case did not raise any issue of principle or a question of public importance. Furthermore, they found that there was no reasonably clear injustice to the applicants that would justify granting leave. Consequently, the summons filed by the applicants was dismissed with costs.

Orders

Orders of the court

Summons filed 18 March 2025 be dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Breen v Clough [2025] NSWCA 144

Cases Citing This Decision

No citing cases yet.

Cases Cited

Clough v Breen (No.7) [2025] NSWSC 344
Citation 1 (Para 8)

…e numerous issues it has spawned over time. They are summarised in the primary judge’s principal judgment: Clough v Breen (No 4) [2023] NSWSC 1155; (2023) 413 ALR 248 ( the Principal Judgment or PJ ). That judgment dealt with claims advanced by Ms Clough for damages for trespass and nuisance arising out of various in…
Clough v Breen (No. 6) [2024] NSWSC 1634
Citation 2 (Para 14)

…s between 3 June 2024 and 11 November 2024. His Honour made orders and delivered reasons for judgment on 18 December 2024: see Clough v Breen (No. 6) [2024] NSWSC 1634 (the Final Judgment or FJ ). Again, it is not necessary to set out all the issues determined by that judgment. Relevantly, his Honour ordered that th…
Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2023] UKSC 47
Citation 3 (Para 40)

…ller community to restrain threatened trespasses: see Wolverhampton City Council and others v London Gypsies and Travellers and others [2024] AC 983; [2023] UKSC 47. They have also been granted to restrain “car cruising” (described by Bean LJ in Sharif v Birmingham City Council [2020] EWCA Civ 1488 at [1], as a c…
Clough v Breen (No. 4) [2023] NSWSC 1155
Citation 4 (Para 8)

…f the dispute or the numerous issues it has spawned over time. They are summarised in the primary judge’s principal judgment: Clough v Breen (No 4) [2023] NSWSC 1155; (2023) 413 ALR 248 ( the Principal Judgment or PJ ). That judgment dealt with claims advanced by Ms Clough for damages for trespass and nuisance arisi…
Clough v Breen & Anor [2022] NSWSC 1026
Citation 5 (Para 9)

…een 9 May 2022 and 11 July 2022, imposed an interlocutory regime pending determination of the issues then before the Court: see Clough v Breen & Anor [2022] NSWSC 1026 ( the Interlocutory Judgment or IJ ). The interlocutory regime was imposed following “many personal confrontations between the occupants of Lots 116…
McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Citation 6 (Para 27)

…principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [35] per Bell P and Payne JA; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (Young and Meagher JJA agreeing); Gibson v Dr…
Breen v Clough [2017] NSWSC 1681
Citation 7 (Para 7)

…In 2015, Ms Clough, in circumstances described in the judgment of Darke J in Breen v Clough [2017] NSWSC 1681, erected fencing on the boundary between Lot 118 and Lot 116 from a point below the garage complex and Lot 116 stepdown down to the residences near the water’s edge. The fence contains several gates along it…
Gibson v Drumm [2016] NSWCA 206
Citation 8 (Para 27)

…[35] per Bell P and Payne JA; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (Young and Meagher JJA agreeing); Gibson v Drumm [2016] NSWCA 206 at [27] per Beazley P and Simpson JA; Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P at 5.…
Hare v Van Brugge [2013] NSWCA 74
Citation 9 (Para 41)

…arty must act reasonably in exercising their rights in relation to the easement. As this Court explained in Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [25] per Barrett JA (Macfarlan JA and Tobias AJA agreeing):…
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Citation 10 (Para 27)

…g beyond something that is merely arguable: McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [35] per Bell P and Payne JA; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (Young and Meagher JJA agreeing); Gibson v Drumm [2016] NSWCA 206 at [27] per Beazley P and Simpson JA; Carolan v AMF Bowling…
Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988
Citation 11 (Para 30)

…e court to grant relief in relation to the interference with an easement, the interference must be substantial: see Burke v Frasers Lorne Pty Limited [2008] NSWSC 988 at [25] per Brereton J, and the cases cited there. Here, it could not be said that any interference with Ms Clough’s rights in respect of Easement B…
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Citation 12 (Para 27)

…per Campbell JA (Young and Meagher JJA agreeing); Gibson v Drumm [2016] NSWCA 206 at [27] per Beazley P and Simpson JA; Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P at 5.…
House v R [1936] HCA 40
Citation 13 (Para 47)

…been demonstrated in the periods of time chosen by the primary judge, let alone error of the type referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40.…
[2025] NSWSC 1634 [2025] NSWSC 1634
Citation 14

…25/6974 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2025] NSWSC 1634 Date of Decision: 18 December 2024 Before: Slattery J File Number(s): 2020/130704…
[2024] AC 983 [2024] AC 983
Citation 15 (Para 40)

…Gypsy and Traveller community to restrain threatened trespasses: see Wolverhampton City Council and others v London Gypsies and Travellers and others [2024] AC 983; [2023] UKSC 47. They have also been granted to restrain “car cruising” (described by Bean LJ in Sharif v Birmingham City Council [2020] EWCA Civ 148…
House v The King 63 WN 176
Citation 16 (Para 47)

…of judgment and degree. No error has been demonstrated in the periods of time chosen by the primary judge, let alone error of the type referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40.…

Legislation Cited

Supreme Court Act 1970 (NSW) 101, 66
3 mentions (from Para 18)
Surveillance Devices Act 2007 (NT)
1 mention (from Para 21)

Medium Neutral Citation:	Breen v Clough [2025] NSWCA 144
Hearing dates:	3 June 2025
Date of orders:	1 July 2025
Decision date:	01 July 2025
Before:	Leeming JA at [1] Ball JA at [2] Free JA at [52]
Decision:	Summons filed 18 March 2025 be dismissed with costs
Catchwords:	LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused
Legislation Cited:	Supreme Court Act 1970 (NSW), ss 66, 101 Surveillance Devices Act 2007 (NSW)
Cases Cited:	Breen v Clough [2017] NSWSC 1681 Burke v Frasers Lorne Pty Limited [2008] NSWSC 988 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Clough v Breen & Anor [2022] NSWSC 1026 Clough v Breen(No 4) [2023] NSWSC 1155; (2023) 413 ALR 248 Clough v Breen (No. 6) [2024] NSWSC 1634 Gibson v Drumm [2016] NSWCA 206 Harev van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 Sharif v Birmingham City Council [2020] EWCA Civ 1488 Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2024] AC 983; [2023] UKSC 47 Wolverhampton City Council v Persons Unknown [2020] EWHC 759 (QB) Wolverhampton City Council v Persons Unknown [2024] EWHC 2273 (KB)
Texts Cited:	W Covell, K Lupton, L Parsons, Covell & Lupton Principles of Remedies (8th ed,2022, LexisNexis) ICF Spry, The Principles of Equitable Remedies (9th ed, 2014, Thomson Reuters)
Category:	Principal judgment
Parties:	Douglas Martin Breen (First Applicant) Tracey Jane Dillon (Second Applicant) Christine May Clough (Respondent)
Representation:	Counsel: M McGirr (Applicants) DP O’Connor (Respondent) Solicitors: The Legal Costs Consultants (Applicants) Redman Hale Simpson (Respondent)
File Number(s):	2025/6974
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2025] NSWSC 1634 Date of Decision: 18 December 2024 Before: Slattery J File Number(s): 2020/130704