Clough v Breen (No. 2) - [2022] NSWSC 1759

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Clough v Breen & Anor (No. 2) [2022] NSWSC 1759
Hearing dates: 1 August and 20 September 2022
Date of orders: 19 December 2022
Decision date: 19 December 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
A declaration made that Easement I does not permit the defendants to place a CCTV camera on the area of the plaintiff’s land burdened by the easement.

Catchwords:
REAL PROPERTY – EASEMENTS – dispute in relation to the use of various easements for the use of an inclinator, the supply of services, giving rights-of-way, and other related easements – between the plaintiff and the defendants who are neighbours – interlocutory orders made in August 2022 pending determination of final issues – the early determination of some issues to reduce the number of disputes between the parties considered – whether early determination of some of the issues is possible – of the issues isolated one is identified as capable of early determination, as to whether a CCTV camera is authorised by Easement I to be positioned on the plaintiff’s land.

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, The Legal Costs Consultants

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

Judgment

This is my second judgment in these proceedings. In my first judgment the Court settled a complex interlocutory regime to stabilise the conflict between these two parties, pending the Court making a final determination of the issues between the parties: Clough v Breen & Anor [2022] NSWSC 1026 (“the interlocutory judgment”). Neither party has relisted the proceedings since the interlocutory judgment.
As was indicated in the interlocutory judgment, the parties have regularly litigated their differences in this Court: Breen v Clough [2017] NSWSC 1681; Breen v Clough [2018] NSWCA 172; and Clough v Breen [2020] NSWSC 653. These judgments set out most of the relevant background facts, decide the issues contested in the past and analyse the terms of the easements.
During argument, the Court raised the issue whether it may be useful to determine several legal issues, before giving a final decision on the contested facts relating to several incidents litigated between them. Four issues were posited as candidates for such early determination. In the end the Court considers that only one of these issues can be decided early. This second judgment deals with only the limited facts necessary to resolve this issue that relates to the construction of the terms of the easement and some uncontested facts relating to a fixture on the easement. A more detailed explanation of the operation of the easements will be included in the Court’s final judgment.
This…

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 (No. 2)

Details

AGLC: Clough v Breen (No. 2) [2022] NSWSC 1759
Case: [2022] NSWSC 1759
Decision Date: 19 December 2022

CaseChat Overview and Summary

In Clough v Breen (No. 2), the plaintiff, Clough, and the defendants, Breen, neighbours, disputed the use of various easements concerning the operation of an inclinator, the provision of services, rights-of-way, and other related easements. The matter was before the court on the application of the plaintiff to determine some issues early, pending the final determination of other issues. Interlocutory orders were previously made in August 2022, and the plaintiff sought to reduce the number of ongoing disputes between the parties by resolving some issues early.

The primary legal issue the court had to address was whether some of the disputes could be resolved early. Specifically, the court had to consider whether one issue could be isolated for early determination, namely whether a CCTV camera was authorised by Easement I to be positioned on the plaintiff’s land. The court examined the terms of Easement I and the nature of the easement to determine if it included the installation and operation of a CCTV camera.

The court concluded that the issue of whether Easement I authorised the installation of a CCTV camera could indeed be resolved early. The court reasoned that determining this specific issue would help streamline the resolution of broader disputes between the parties. The court found that Easement I did not explicitly or implicitly permit the installation of a CCTV camera on the plaintiff’s land. Consequently, the court ruled against the plaintiff’s application to position the CCTV camera on the land in question.

No final orders were made in this interlocutory hearing. The court's determination was limited to the issue of whether Easement I authorised the installation of a CCTV camera. The broader disputes between the parties regarding the other easements will continue to be resolved in subsequent proceedings.

Orders