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

1. 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.

2. 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

3. 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.

4. On 4 May 2023 the Court made those orders, indicating that it would give short reasons for those orders later. These are those reasons.

5. 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:

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

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

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

6. The Court will deal with each of these in turn.

7. First, as to the Inclined Lift Services invoice 10607, the invoice was for an amount of $327.80. Ms Clough said this invoice had never been paid. She claimed it had not been paid because of the dispute with the owners of Lot 118. The invoice related to the replacement of the entry-level call station box at the Level 3 landing. Ms Clough said that Mr Breen should pay half that amount, namely $163.90.

8. But the call station was ultimately removed because of Justice Darke’s orders and the invoice includes the relocation and replacement of the call station landing at level 3. The Court required the local call stations which Ms Clough had installed on the runway side of the landing gate to be moved to the landing side of the gate. The invoices reflect the execution of that order. Even if it is true that the landing control station was deteriorating due to age, it was still ultimately moved because of the Court's order and so should be to Ms Clough's account. The Court will order Ms Clough to pay this invoice. No deduction should be made from the Sinking Fund on account of this invoice.

9. As to the Applied Locksmith invoice 5364 for $220, Ms Clough had a locksmith come out and change the locks on both the gate and the door at the level 5 landing. Ms Clough had these keys cut with this locksmith to get access to which she was entitled. Then Mr Breen changed the locks again, making the keys useless. Ms Clough says that this cost should be to Mr Breen and Ms Dillon's account.

10. Mr Breen says in his affidavit evidence on this issue that copies of the original keys could have been obtained from him for a minimal fee and that he does not agree that he should be liable for the cost of manufacturing new keys when simple copies could have been made.

11. But Mr Breen's conduct at this time and the hostility between the parties meant that it was reasonable for Ms Clough not to ask for a new key from Mr Breen but to take the course of having new ones made. Therefore, this cost should be to his account.

12. Finally, as to the NRMA excess on the insurance claim for Lift invoices 11977 and 10313, Ms Clough’s claim should be allowed. The claim for $500 represents half of the insurance excess upon an insurance claim to NRMA when the inclinator trailing cable broke leading to an expensive repair at approximately $7,800. Mr Breen did not pay for his half or apparently make a claim on his insurance, so Ms Clough claimed the entire amount on her insurance without any contribution from Mr Breen. But she still had to pay an excess of $1,000 which is not recoverable. She seeks to have $500 of that deducted from the Sinking Fund.

13. Mr Breen answers this by saying that the damage to the inclinator cable was caused by Mr Rose and that Mr Breen and Ms Dillon should not have to pay for any part of it.

14. But incidental and accidental damage to the inclinator can be expected to occur from time to time from its use by either party as part of ordinary fair, wear and tear. Both parties will even occasionally be negligent in handling the inclinator, though trying to do their best to use it correctly. The conduct in question here was not intentional. Such accidental damage caused by these parties should be borne from the Sinking Fund equally. Intentional conduct would be assessed differently.

15. Moreover, there is an alternative basis for deciding this issue the same way. The Court is not persuaded on the balance of probabilities that it was solely Mr Rose's conduct that caused the damage.

16. No separate costs order is warranted with respect to this dispute. The relevant orders made on 4 May 2023 are set out below.

Conclusions and Orders

17. Accordingly, the Court makes the following orders and directions:

1. In respect of the contested issues between the parties heard on 28 April 2023 concerning what past liabilities can be met from the Sinking Fund, and to which party’s account those liabilities will be satisfied, the Court makes the following orders in respect of each of the following invoices, noting that reasons for these orders will be given at the time of the Court’s final judgment in these proceedings:

1. Inclined Lift Services invoice no. 10607 dated 31 January 2018, claim for $163.90 – this amount shall not be paid from the Sinking Fund but shall be borne by Ms Clough;

2. Applied Locksmith invoice no. 5364 dated 14 November 2018, claim for $220 – this amount may be paid by the solicitor for Ms Clough from the Sinking Fund to the creditor and shall be debited in the accounts of the Sinking Fund against the contributions required to be made by Mr Breen and Ms Dillon to the Sinking Fund;

3. NRMA Excess (of $1,000) on insurance claim for Inclined Lift Services invoices 11977 and 10313 – the solicitor for Ms Clough is authorised to deduct from the Sinking Fund the sum of $500 on account of half of Ms Clough’s NRMA excess and to pay the same to Ms Clough, which amount will be debited solely against the contributions required to be made by Mr Breen and Ms Dillon to the Sinking Fund; and

4. On 1 July 2023 Mr Breen and Ms Dillon will pay into the Sinking Fund in addition to the $3,000 (pursuant to Order (2)(c) of the orders made on 1 August 2022 as varied by Order (5) of the orders made on 19 April 2023) then due, the additional sum of $720 (being $220 + $500).

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Decision last updated: 03 July 2023