Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Breen v Clough [2024] NSWCA 316 Hearing dates: 26 November 2024 Date of orders: 24 December 2024 Decision date: 24 December 2024 Before: Ward P at [1]; Stern JA at [67]; Griffiths AJA at [68] Decision: 1. Leave to appeal be granted.
2. Allow the appeal on Ground 1(a).
3. Set aside the Declaration (in Order 1) and Order 2 of the orders made by Slattery J on 19 December 2022 and in lieu thereof declare that the defendants are authorised by Easement I to place, maintain and use the CCTV camera installed at the storage area level below landing 5 on the area of the plaintiff’s land that is burdened by Easement 1.
4. Order the applicants to pay the respondent’s costs thrown away by the abandonment of the proposed grounds of appeal other than Ground 1.
5. Order the respondent to pay the applicants’ costs of Ground 1(a) of the appeal.
6. Order the respondent to pay the applicants’ costs of the argument in the proceeding at first instance as to the Storage Area Camera issue.
Catchwords: REAL PROPERTY – Easements – Construction of the definition of the statutory terms of an easement for services – Where applicant had installed a CCTV camera to monitor passageway outside storage area – Where CCTV cables traversed benefited lot – Whether on proper construction of statutory terms of easement the CCTV camera was a “domestic service” “to or from” the benefited lot – Whether necessary that service provided by a third party provider – Appeal allowed
Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, Sch 8, Pt 11
Property Legislation (Easements) Bill 1995 (NSW)
Uniform Civil Procedures Rules 2005 (NSW), r 28.2
Cases Cited: Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164
Breen v Clough [2017] NSWSC 1681
Breen v Clough [2018] NSWCA 172
Clough v Breen (No 4) [2023] NSWSC 1155
Clough v Breen (No 5) [2024] NSWSC 337
Clough v Breen (No 6) NSWSC 1634
Clough v Breen [2020] NSWSC 653
Crampton v R (2000) 206 CLR 161; [2000] HCA 60
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1988] HCA 28
Category: Principal judgment Parties: Douglas Martin Breen (First Appellant)
Tracey Jane Dillon (Second Appellant)
Christine May Clough (Respondent)Representation: Counsel:
Solicitors:
HW Somerville and DF King (Appellants)
DP O’Connor and SA Scott (Respondent)
Morson Law (Appellants)
Redmond Hale Simpson (Respondent)
File Number(s): 2024/00241863 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division
- Date of Decision:
- 19 December 2022
- Before:
- Slattery J
- File Number(s):
- 2020/130704
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellants, Mr Breen and Ms Dillon, and the respondent, Ms Clough, own neighbouring properties on land that slopes steeply down from the street above to the Georges River below. The parties’ respective properties are accessed…
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- AGLC
- Breen v Clough [2024] NSWCA 316
- Case
- [2024] NSWCA 316
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether, on the proper construction of the statutory terms of the easement, the CCTV camera constituted a "domestic service" "to or from" the benefited lot. A further question arose as to whether it was necessary for such a service to be provided by a third-party provider.
The Court of Appeal allowed the appeal, finding that the CCTV camera was indeed a domestic service to or from the benefited lot. The Court reasoned that the term "domestic service" should be interpreted broadly to encompass services that facilitate the ordinary use and enjoyment of the benefited property. It was not necessary for the service to be provided by a third party; a service provided by the owner of the benefited lot for their own use was sufficient. Consequently, the Court set aside the orders made at first instance and declared that the defendants were authorised by the easement to place, maintain, and use the CCTV camera. The Court also made orders regarding the costs of the appeal and the proceedings at first instance.
Orders
Orders of the court
1. Leave to appeal be granted.
2. Allow the appeal on Ground 1(a).
3. Set aside the Declaration (in Order 1) and Order 2 of the orders made by Slattery J on 19 December 2022 and in lieu thereof declare that the defendants are authorised by Easement I to place, maintain and use the CCTV camera installed at the storage area level below landing 5 on the area of the plaintiff’s land that is burdened by Easement 1.
4. Order the applicants to pay the respondent’s costs thrown away by the abandonment of the proposed grounds of appeal other than Ground 1.
5. Order the respondent to pay the applicants’ costs of Ground 1(a) of the appeal.
6. Order the respondent to pay the applicants’ costs of the argument in the proceeding at first instance as to the Storage Area Camera issue.
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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