Breen v Clough

[2018] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Breen v Clough [2018] NSWCA 172

Hearing dates:

2 August 2018

Date of orders:

02 August 2018

Decision date:

08 August 2018

Before:

Gleeson JA, Sackville AJA, Emmett AJA

Decision:

1.    The notice of appeal is dismissed as incompetent.
2.    Refuse the oral application by Mr Breen and Ms Dillon for leave to appeal.
3.    Refuse leave to appeal with respect to the proposed cross-appeal by Ms Clough.
4.    Each party bear their own costs in this Court.

Catchwords:

APPEALS – appeal incompetent – no realistic prospect on appeal of obtaining judgment for at least $100,000

 

APPEALS – oral application for leave to appeal refused – no issue of principle – no injustice in refusing leave

APPEALS – summons seeking leave to cross-appeal – s 101(2)(r)(ii) not engaged – leave refused

Legislation Cited:

Conveyancing Act 1919 (NSW), s 88B
Occupational Health and Safety Act 2000 (NSW), s 91
Supreme Court Act 1970 (NSW), s 101(2)(r)

Uniform Civil Procedure Rules 2005 (NSW), rr 51.22, 51.41

Cases Cited:

Breen v Clough (No 2) [2018] NSWSC 158
Coshott v Vardas [2017] NSWCA 258
Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121
Milne v James (1910) 13 CLR 165
Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40
Pawlowska v Zajglic [2011] NSWCA 118
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category:

Principal judgment

Parties:

Douglas Breen (First Appellant)
Tracey Dillon (Second Appellant)
Christine Clough (First Respondent)

Representation:

Counsel:
Mr C Ireland (Appellants)
Mr DP O’Connor / Ms FJ McNeil (Respondent)

  Solicitors:
DPH Lawyers (Appellants)
Redmond Hale Simpson (Respondent)

File Number(s):

2017/386557

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2017] NSWSC 1681

Date of Decision:

5 December 2017

Before:

Darke J

File Number(s):

2014/343553

Judgment

1. THE COURT: These proceedings arise out of a dispute between neighbours relating to easements for access and storage. The major dispute relates to the use of an inclinator located at or near to the boundary of the two neighbouring lots owned by the parties. As the primary Judge observed, the inclinator and the terms of the easement governing its use have been the focus of tension and conflict between the parties since 2010. [1]

   1. Breen v Clough [2017] NSWSC 1681 (Primary Judgment) at [2]. A cross-claim by the respondent seeking to recover amounts by way of contribution to the costs of repair and maintenance of the inclinator was settled in August 2017 when the respondent accepted the appellants’ Offer of Compromise.

2. The contest culminated in the appellants bringing proceedings in the Equity Division in November 2014 claiming that the respondent had wrongfully interfered with their rights as the proprietors of the dominant tenement entitled to the benefit of an easement of access over the respondent’s land. They also claimed that the respondent had trespassed onto their land by erecting fencing and other structures inhibiting…