Legal Research
Cases
Clough v Breen (No.5)

Clough v Breen (No.5)

Case [2024] NSWSC 337 9 April 2024

Easements & Covenants

Aggravated & Exemplary Damages

Property Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Clough v Breen (No.5) [2024] NSWSC 337
Hearing dates: 12 February 2024
Date of orders: 9 April 2024
Decision date: 09 April 2024
Jurisdiction: Equity
Before: Slattery J
Decision:
The first defendant is ordered to pay a total of $28,000 in aggravated and exemplary damages in respect of three incidents. The defendants are ordered to pay 60% of the plaintiff’s costs of the proceedings to date.

Catchwords:
LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of an inclinator and rights of foot access – previous judgment determines that the first defendant has engaged in excessive use of easements and has trespassed beyond the boundaries of the designated easement and obstructed or interfered with use of the easement, occasioning nuisance to the plaintiff in four out of eight alleged incidents – conduct of the first defendant found to amount to a substantial interference with the rights of the plaintiff under the easement and a trespass upon a servient tenement – whether damages should be awarded and whether aggravated or exemplary damages should be awarded – assessment of the quantum of damages.
COSTS – Party/Party – Court’s discretion – proceeding not complete – whether a costs order should be made at this stage- plaintiff is successful in respect of four out of eight incidents at final hearing and in respect of some issues at earlier hearings – what overall costs orders should be made in the circumstances – what costs orders should be made in respect to a decision of a judge to grant restraining orders with respect to the conduct of the first defendant on one occasion – whether costs orders should be made now or at the conclusion of the proceedings.

Cases Cited:
Clough v Breen & Anor [2022] NSWSC 1026
Clough v Breen (No. 4) [2023] NSWSC 1155
Day v The Ocean Beach Hotel Shellharbour Ltd (2013) 85 NSWLR 335
Lamb v Cotogno (1987) 164 CLR 1
State of New South Wales v Ibbert (2005) 65 NSWLR 168
Tilden v Gregg [2015] NSWCA 164

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 Court gave judgment on the final hearing of this matter on 22 September 2023: Clough v Breen (No. 4) [2023] NSWSC 1155 (“the September 2023 judgment”). This judgment deals with two issues consequent upon the giving of the September 2023 judgment: (1) whether any damages should be awarded for the torts established against Mr Breen, and if so, in what quantum; and (2) costs.
This judgment should be read with the Court’s September 2023 judgment. Events, matters and persons are…

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.5)

Details

AGLC: Clough v Breen (No.5) [2024] NSWSC 337
Case: [2024] NSWSC 337
Decision Date: 09 April 2024

CaseChat Overview and Summary

In the case of Clough v Breen, the plaintiff, Clough, brought an action against the first defendant, Breen, and the second defendant, the State of South Australia, seeking damages for substantial interference with rights under easements, trespass, and nuisance. The dispute centred around the shared use of an inclinator and rights of foot access between neighbouring properties, which were subject to reciprocal benefits and burdens under easements. The case was heard in the Supreme Court of South Australia.

The legal issues before the court included whether damages should be awarded for the substantial interference with the plaintiff's easement rights, whether the damages should include aggravated or exemplary components, and the assessment of the quantum of those damages. Additionally, the court needed to consider the costs associated with the proceedings, including whether a costs order should be made at this stage of the proceedings, and if so, what the overall costs orders should be.

The court found that the first defendant had engaged in excessive use of the easements and trespassed beyond the boundaries of the designated easement, obstructing or interfering with the use of the easement, occasioning nuisance to the plaintiff in four out of eight alleged incidents. The court held that the conduct of the first defendant amounted to a substantial interference with the rights of the plaintiff under the easement and a trespass upon a servient tenement. The court awarded damages for the substantial interference with the easement rights, but did not award aggravated or exemplary damages. The quantum of damages was assessed based on the evidence presented. Regarding costs, the court exercised its discretion and made an order for costs in favour of the plaintiff for the proceedings to that point, reserving the question of further costs orders until the conclusion of the proceedings.

In conclusion, the court awarded damages to the plaintiff for the substantial interference with the easement rights, but did not award aggravated or exemplary damages. The court also made an order for costs in favour of the plaintiff for the proceedings to that point, reserving the question of further costs orders until the conclusion of the proceedings.

Orders