Clough v Breen (No.5)

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.