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Clough v Breen

Clough v Breen

Case [2020] NSWSC 653 19 May 2020

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Clough v Breen [2020] NSWSC 653
Hearing dates: 19 May 2020
Date of orders: 19 May 2020
Decision date: 19 May 2020
Jurisdiction: Equity
Before: Rees J
Decision:
Interlocutory injunctions granted: see [40]

Catchwords: CIVIL PROCEDURE – Interlocutory injunctions – inclinator – right of access – AVOs – alleged stalking and intimidation – locks changed – injunction sought to obtain key – mandatory interlocutory injunction –principles at [29]-[34] – whether necessary for plaintiff to establish damage in nuisance – whether unclean hands precluded prima facie case – prima facie case established – whether injunction would cause harm to defendants – balance of convenience favours restoring right of access – injunction granted
Legislation Cited: Conveyancing Act 1919 (NSW), ss 181A, Schedule 8
Cases Cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Bingham v 7-Eleven Stores Pty Ltd [2003] QCA 402
Breen v Clough [2017] NSWSC 1681
Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 127; (1988) 82 ALR 499
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Dering v Earl of Winchelsea (1787) 1 Cox 318
Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670
Gohl v Hender [1930] SASR 158; Hare v van Brugge [2013] NSWCA 74
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
In the matter of A Twins Spare Parts Pty Limited [2019] NSWSC 1347
Kation Pty Ltd v Lamru Pty Ltd (2009) 257 ALR 336
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA
National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] UKPC 16
Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119 at 123; [1995] FCA 1405
Shepherd Homes Ltd v Sandham [1971] Ch 340
Staley v Pivot Group Pty Ltd (No 6) [2010] WASC 228
Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89
Warner-Lambert Co LCC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59
Texts Cited: Heydon, Leeming & Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed., LexisNexis, 2014)
J D Heydon in Heydon on Contract: The General Part (Lawbook Co, 2019)
Category: Principal judgment
Parties: Christine Clough (Plaintiff)
Douglas Breen (First Defendant)
Tracey Dillon (Second Defendant)
Representation:
Counsel:
Mr DP O’Connor (Plaintiff)
Ms T Davy (Defendants)
Solicitors:
Redmond Hail Simpson (Plaintiff)
DPH Lawyers (Defendants)

File Number(s): 2020/00130704

EX TEMPORE Judgment

HER HONOUR: This is an application for interlocutory injunctive relief. The plaintiff and defendants are neighbours. The plaintiff, Christine Clough, seeks an order that the defendants, Douglas Breen and Tracey Dillon, provide her with a key to the access gate (the Gate) at Landing No 5 of the inclinator easement that encumbers her property at Moons Avenue, Lugarno, and that the defendants refrain from changing 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 Clough v Breen

Details

AGLC: Clough v Breen [2020] NSWSC 653
Case: [2020] NSWSC 653
Decision Date: 19 May 2020

CaseChat Overview and Summary

The case involved Clough, the plaintiff, and Breen, the defendant, before a court in Australia. The plaintiff sought an interlocutory injunction to restore their right of access to their property, which had been effectively blocked by the defendant changing the locks. The defendant had also been served with an Apprehended Violence Order (AVO) alleging stalking and intimidation. The primary legal issues centred on whether the plaintiff needed to establish damage in nuisance to obtain an interlocutory injunction, whether the doctrine of unclean hands precluded the plaintiff's prima facie case, and whether granting the injunction would cause harm to the defendants. The court also needed to consider the balance of convenience.

The court considered the principles outlined in earlier cases, particularly regarding the necessity of establishing damage in nuisance and the doctrine of unclean hands. It concluded that the plaintiff had established a prima facie case for an interlocutory injunction. The court held that the doctrine of unclean hands did not preclude the plaintiff's case. Additionally, the court found that the injunction would not cause harm to the defendants and that the balance of convenience favoured restoring the plaintiff's right of access. Accordingly, the court granted the injunction, allowing the plaintiff to regain access to their property.

The court's decision underscored the importance of restoring a party's right of access when it is unjustly obstructed, particularly in the context of alleged stalking and intimidation. The ruling highlighted the court's willingness to grant interlocutory relief where it serves to protect a party's rights and where the balance of convenience clearly favours the applicant. The decision also emphasised the court's discretion in weighing the equities of the situation and the importance of considering the broader context, including the presence of an AVO.

Orders