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Breen v Clough

Breen v Clough

Case [2017] NSWSC 1681 5 December 2017

Easements & Covenants

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Supreme Court

New South Wales

Medium Neutral Citation: Breen v Clough [2017] NSWSC 1681
Hearing dates: 9-12, 16 October 2017
Date of orders: 05 December 2017
Decision date: 05 December 2017
Jurisdiction: Equity
Before: Darke J
Decision:
See paragraphs [259] and [273].

Catchwords:
LAND LAW – easements – substantial interference with rights under easements – where neighbouring properties have reciprocal benefits and burdens under easement to enable shared use of inclinator – where inclinator registered in defendant’s name with regulator – regulator issued notices requiring works to be done to inclinator – whether defendant’s conduct in response to notices constituted a substantial interference with the plaintiffs’ rights under the easement

LAND LAW – easements – substantial interference with rights under easements – remedies for interference – damages – damages awarded due to inability to use storeroom landing of inclinator – damage for expenses and inconvenience – exemplary damages claimed – exemplary damages not warranted

LAND LAW – easements – construction of easements – general principles of construction – where easement incorporates statutory terms of right of access – where easement imposes obligation to “ensure proper maintenance, repair and replacement” – consideration of parties’ rights and obligations under easement
EQUITY – equitable remedies – injunctions – plaintiffs seek a range of injunctions against defendant in relation to easement for inclinator – appropriate to order mandatory injunctions requiring replacement of fence with gate, provision of keys, and relocation of control buttons for inclinator
Legislation Cited: Conveyancing Act 1919 (NSW), s 181A, Sch 8
Occupational Health and Safety Act 2000 (NSW), ss 91, 135, Pt 6
Occupational Health and Safety Regulation 2001 (NSW), cll 83, 113
Work Health and Safety Act 2011 (NSW), Sch 1, cll 3-6, Sch 4, cll 4, 8
Work Health and Safety Regulation 2011 (NSW), Sch 18B, cl 31
Work Health and Safety Regulation 2017 (NSW), cll 10(1B), 246, Sch 5, Pt 2
Cases Cited: Butler v Muddle (1995) 6 BPR 97,532
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580
Powell v Langdon (1944) 45 SR (NSW) 136
Pwllbach Colliery Co Ltd v Woodman [1915] AC 634
Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Zenere v Leate (1980) 1 BPR 97,029
Category: Principal judgment
Parties: Douglas Martin Breen (First Plaintiff)
Tracey Jane Dillon (Second Plaintiff)
Christine Mae Clough (Defendant)
Representation:
Counsel:
Mr C Ireland with Ms T Davy (Plaintiffs)
Mr D O’Connor with Ms F McNeil (Defendant)
Solicitors:
Koutzoumis Lawyers (Plaintiffs)
Redmond Hale Simpson (Defendant)

File Number(s): 2014/343553
Publication restriction: None

Judgment

Introduction

These proceedings principally concern an easement for access. An inclinator, a type of inclined lift which runs along a rail, has been constructed within the easement area. The inclinator services both the plaintiffs’ property at 118 Moons Avenue, Lugarno, and the defendant’s…

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 [2017] NSWSC 1681
Case: [2017] NSWSC 1681
Decision Date: 05 December 2017

CaseChat Overview and Summary

In the case of Breen v Clough, the plaintiffs, who own property adjoining the defendant's, sought relief for interference with their rights under an easement concerning an inclinator. The dispute was heard and determined in the Supreme Court of New South Wales. The plaintiffs alleged that the defendant had substantially interfered with their rights under the easement by not complying with notices issued by a regulatory body regarding works to be done on the inclinator. The plaintiffs sought damages for the inability to use the storeroom landing of the inclinator, expenses and inconvenience caused, and exemplary damages. The court was also asked to consider the construction of the easement, which included statutory terms of right of access and an obligation to ensure proper maintenance, repair, and replacement of the inclinator.

The legal issues before the court were whether the defendant's actions in response to the notices constituted a substantial interference with the plaintiffs' rights under the easement, and if so, what remedies were appropriate. The court had to consider the parties' rights and obligations under the easement, including the obligation to ensure proper maintenance, repair, and replacement of the inclinator, and the statutory terms of right of access. The court also had to determine whether exemplary damages were warranted and what equitable remedies were appropriate, such as mandatory injunctions requiring the replacement of a fence with a gate, the provision of keys, and the relocation of control buttons for the inclinator.

The court found that the defendant's conduct did constitute a substantial interference with the plaintiffs' rights under the easement. However, the court held that exemplary damages were not warranted as there was no evidence of malice or disregard of the plaintiffs' rights. The court awarded damages for the inability to use the storeroom landing of the inclinator, expenses and inconvenience caused. The court also considered the construction of the easement and found that the obligation to ensure proper maintenance, repair, and replacement of the inclinator was not limited to the physical structure but also included the statutory terms of right of access. The court granted the plaintiffs' application for mandatory injunctions requiring the replacement of a fence with a gate, the provision of keys, and the relocation of control buttons for the inclinator.

The court ordered the defendant to pay the plaintiffs damages for the inability to use the storeroom landing of the inclinator, expenses and inconvenience caused. The court also ordered the defendant to replace a fence with a gate, provide keys to the plaintiffs, and relocate the control buttons for the inclinator. The court did not award exemplary damages.

Orders