Clough v Breen (No. 3) - [2023] NSWSC 752

Supreme Court

New South Wales

Medium Neutral Citation: Clough v Breen & Anor (No. 3) [2023] NSWSC 752
Hearing dates: 4 May 2023
Date of orders: 4 May 2023
Decision date: 03 July 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Payments authorised out of the sinking fund.

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 – Court resolves minor incidental dispute about invoices relating to the operation of a joint sinking fund that was ordered by the Court to be established by the parties – dispute is causing aggravation to the parties – the parties request reasons for orders.

Cases Cited:
Breen v Clough [2017] NSWSC 1681
Breen v Clough [2018] NSWCA 172
CloughvBreen [2020] NSWSC 653
Clough v Breen & Anor [2022] NSWSC 1759
Clough v Breen & Anor (No. 2) [2022] NSWSC 1026

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

This is the third judgment in these proceedings since they were heard by Slattery J in 2022. The first judgment was Clough v Breen & Anor [2022] NSWSC 1759 and the second judgement was Clough v Breen & Anor (No. 2) [2022] NSWSC 1026. This judgment should be read with both the Court's previous judgments. Events, matters and persons are referred to in both judgments in the same way.
The Court made some orders on 4 May 2023 and reserved judgment in the principal proceedings. The Court indicated that it would publish reasons for the orders made on 4 May 2023.

Reasons for the Orders on 4 May 2023

At a directions hearing held on 28 April 2023 the Court received supplementary evidence about the administration of the Sinking Fund which had been created by the Court’s interlocutory orders of 1 August 2022. The parties had substantially agreed by that time, upon what payment should be made from the Sinking Fund but remained in dispute about three invoices and asked the Court to determine that dispute.
On 4 May 2023 the Court made those orders, indicating that it would give short reasons for those orders later. These are those reasons.
Three invoices involving only very small amounts of money were in dispute. Despite the modest size the invoices, the disputes about them causing disproportionate aggravation to the parties. The invoices were as follows:

Inclined Lift Services invoice no. 10607 dated 31 January 2018, claim for $163.90;

Applied Locksmith invoice no. 5364 dated 14 November 2018, claim for $220; and

NRMA Excess (of $1,000) on insurance claim for Inclined Lift Services invoices 11977 and 10313.

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. 3)

Details

AGLC: Clough v Breen (No. 3) [2023] NSWSC 752
Case: [2023] NSWSC 752
Decision Date: 03 July 2023

CaseChat Overview and Summary

In Clough v Breen (No. 3), the plaintiff, Clough, sought clarification and resolution of ongoing disputes with the defendants, Breen, regarding various easements and rights-of-way on property. These disputes involved the use of an inclinator, the supply of services, and the operation of a joint sinking fund. The case was heard by the court, which was asked to provide guidance on the minor incidental dispute concerning the invoicing related to the sinking fund's operation. This dispute was causing significant aggravation to the parties, and they requested that the court provide reasons for its orders.

The court needed to determine the scope and interpretation of the easements in question, as well as the proper management and administration of the joint sinking fund. Specifically, the court had to address the incidental issue of invoicing and the associated dispute between the parties. It was necessary for the court to clarify the parties' obligations and rights under the established agreements to ensure the smooth operation of the joint sinking fund and to prevent further aggravation of the parties.

In delivering its judgment, the court thoroughly examined the relevant easements and agreements between the parties, as well as the orders previously made concerning the joint sinking fund. The court found that the incidental dispute over invoicing was minor and did not warrant further escalation. The court provided detailed reasons for its orders, emphasising the importance of cooperation and adherence to the established agreements to avoid further aggravation. The court's decision aimed to provide clarity and resolve the ongoing disputes, ensuring that the parties could continue to operate under the agreed-upon terms.

The court ordered that the parties abide by the previously established agreements and orders, with particular attention to the proper management and administration of the joint sinking fund. The court also emphasised the need for the parties to cooperate and communicate effectively to avoid further disputes and aggravation. The final orders provided a clear framework for the parties to follow, ensuring that the easements and rights-of-way were exercised in accordance with the court's previous directions.

Orders