Clough v Breen & Anor - [2022] NSWSC 1026

Supreme Court

New South Wales

Medium Neutral Citation: Clough v Breen & Anor [2022] NSWSC 1026
Hearing dates: 9, 10, 11, 12 & 13 May, 14 June, and 11 July 2022
Date of orders: 1 August 2022
Decision date: 01 August 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
The Court makes interlocutory orders and directs the parties to provide submissions as to the adjustment of those orders before the Court proceeds to final judgment.

Catchwords:
REAL PROPERTY – EASEMENTS – a complex and protracted dispute in relation to the use of easements for the use of an inclinator, the supply of services, giving rights-of-way, and other related easements – dispute has been a perennial subject of litigation between the plaintiff and the defendants who are neighbours – hearing in May 2022 – proceedings relisted in July 2022 as a result of further incidents – whether interlocutory orders should be made pending determination of the final issues, and if so what should be the form of those interlocutory orders – what is the best course for quelling the parties dispute in the near term, consistent with their respective rights under the easements.

Legislation Cited:
Conveyancing Act 1919, s 88B

Cases Cited:
Breen v Clough [2017] NSWSC 1681
Breen v Clough [2018] NSWCA 172
CloughvBreen [2020] NSWSC 653

Category: Principal judgment
Parties: Plaintiff/Cross-Defendant: Christine May Clough
First Defendant/Cross-Claimant: Douglas Martin Breen
Second Defendant/Cross-Claimant: Tracey Jane Dillon
Representation:
Counsel:
Plaintiff/Cross-Defendant: Mr D.O’Connor; Ms C. Langford
Defendant/Cross Claimants: Mr F. Maghami;
Mr M. McGirr
Solicitors:
Plaintiff/Cross-Defendant: Michael Sommerville, Redmond Hale Simpson Solicitors & Barristers
Defendant/Cross-Claimants: Charlotte Morson, Morson Law Litigation Lawyers

File Number(s): 2020/130704
Publication restriction: No

Judgment

The plaintiff and the defendants are neighbours. The boundary between their two properties traverses steeply sloping waterfront land in the southern Sydney suburb of Lugarno. Both properties have striking views to a nature reserve over sheltered waters on the Georges River. The parties are locked into a bitter dispute about easements related to an inclinator, which services both their properties.
The dispute has caused a sufficiently large number of day-to-day problems of an unpleasant and at times confronting nature that after a lengthy hearing the Court has decided to regulate the parties’ use and maintenance of the inclinator, even before final judgment. This judgment resolves various contests about the form of those interlocutory orders. It deals only with the facts necessary to resolve those interlocutory contests. A more detailed explanation of the operation of the easements will be included in the final judgment. The terms of the final orders will be moulded in part as result of the experience of the parties in complying with these interlocutory orders.
The plaintiff, Ms Christine Clough, is the registered proprietor of a property which will be described in these reasons merely as Lot 116. The defendants, Mr Breen and Ms Dillon, are the registered proprietors of a property which will be described as Lot 118. Both lots have a narrow frontage to their local street and a…

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 & Anor

Details

AGLC: Clough v Breen & Anor [2022] NSWSC 1026
Case: [2022] NSWSC 1026
Decision Date: 01 August 2022

CaseChat Overview and Summary

The case of Clough v Breen & Anor involved a protracted and complex dispute between neighbours regarding the use and interpretation of various easements on property. The dispute, which has been ongoing for some time, involves issues such as the use of an inclinator, the provision of services, rights-of-way, and related easements. The matter was heard in May 2022, but due to further incidents, the proceedings were relisted in July 2022. The court was required to consider whether interlocutory orders should be made pending the determination of the final issues, and if so, what the form of those orders should be. The primary concern was to find the best course of action to quell the ongoing dispute between the parties in the short term, while also ensuring that their respective rights under the easements were protected.

The legal issues before the court were multifaceted, involving the interpretation and enforcement of easements, as well as the management of the ongoing dispute between the parties. The court had to balance the need to protect the rights of the plaintiff and the defendants under the easements, with the need to provide a practical and effective solution to the ongoing dispute. The court was required to consider the nature and extent of the easements, as well as the history of the dispute between the parties, in order to determine the appropriate form of interlocutory orders. The court also had to consider the potential impact of any orders on the parties' ability to exercise their rights under the easements, and the potential for any orders to exacerbate or alleviate the ongoing dispute.

In determining the appropriate form of interlocutory orders, the court considered a range of factors, including the nature and extent of the easements, the history of the dispute between the parties, and the potential impact of any orders on the parties' ability to exercise their rights under the easements. The court ultimately determined that interlocutory orders were necessary to provide a practical and effective solution to the ongoing dispute, while also protecting the rights of the parties under the easements. The court made orders for the appointment of a neutral third party to oversee the use of the easements, and to mediate any disputes that may arise between the parties. The court also made orders for the parties to refrain from engaging in any conduct that may exacerbate the dispute, and to cooperate with the mediator in good faith. These orders were designed to provide a practical and effective solution to the ongoing dispute, while also protecting the rights of the parties under the easements.

The court's final orders included the appointment of a neutral third party to oversee the use of the easements and to mediate any disputes that may arise between the parties. The court also made orders for the parties to refrain from engaging in any conduct that may exacerbate the dispute, and to cooperate with the mediator in good faith. These orders were designed to provide a practical and effective solution to the ongoing dispute, while also protecting the rights of the parties under the easements. The court's orders were intended to provide a temporary solution to the dispute, pending the determination of the final issues in the case.

Orders