Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Clough v Breen (No. 6) [2024] NSWSC 1634 Hearing dates: 3 June, 18 July, 20 August, 26 September, and 11 November 2024. Date of orders: 18 December 2024 Decision date: 18 December 2024 Jurisdiction: Equity - Real Property List Before: Slattery J Decision: Interim orders varied and continued to form final relief between the parties. Specified gross sum costs order made.
Catchwords: JUDGMENTS AND ORDERS – Amending, varying, and setting aside – interlocutory regime of orders imposed on parties engaged in a long-running dispute in relation to easements – final judgment given – whether the interlocutory regime of orders should be continued on a permanent basis and if so, whether those orders should be varied.
COSTS – specified gross sum costs order – Civil Procedure Act2005 s 98(4)(c) – long-running dispute between two neighbours involving multiple proceedings – final judgment given – discretionary factors relevant to making a specified gross sum costs order – need to accelerate the disengagement of the parties from their present disputes and to avoid further aggravating contests between them including in relation to costs assessment – whether a specified gross sum order should be made instead of a costs assessment.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(1), 57(1)(d), 60, and 98(4)(c)
Cases Cited: Aquaqueen International Pty Ltd [2015] NSWSC 500
Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119
Breen v Clough [2017] NSWSC 1681
Capello v HomeBuilding Pty Ltd [2023] NSWCA 268
Clough v Breen [2020] NSWSC 653
Clough v Breen & Anor [2022] NSWSC 1026
Clough v Breen (No. 4) [2023] NSWSC 1155
Clough v Breen (No.5) [2024] NSWSC 337
Hadid v Lenfest Communications Inc [2000] FCA 628
Halliday v SACS Group Pty Ltd [1993] HCA 13; 67 ALJR 678
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121
Prospect County Council v Cross (1990) 21 NSWLR 601
Simone Starr-Diamond v Talus Diamond (No. 4) (2013) 272 FLR 414; (2013) 224 A Crim R 523; [2013] NSWSC 81
Category: Costs Parties: Plaintiff/Cross-Defendant: Christine May Clough
First Defendant/Cross-Claimant: Douglas Martin Breen
Second Defendant/Cross-Claimant: Tracey Jane DillonRepresentation: Counsel:
Solicitors:
Plaintiff/Cross-Defendant: D O’Connor
Defendants/Cross-Claimants: M McGirr
Plaintiff/Cross-Defendant: Michael Sommerville, Redmond Hale Simpson
Defendants/Cross-Claimants: Charlotte Morson, Morson Law Litigation Lawyers
File Number(s): 2020/130704 Publication restriction: N/A
JUDGMENT
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This is the sixth judgment in these long-running easement proceedings between neighbours in the Sydney suburb of Lugarno. This judgment deals with two remaining issues: (1) what part of the interlocutory regime first ordered to de-escalate tensions between the parties on 1 August 2022 should now be continued; and (2) what specified gross sum costs order should be made to give effect to the costs orders made in favour of the plaintiff.
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The determination of these questions requires reference back to several of the Court’s prior judgments. As to the…
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- AGLC
- Clough v Breen (No. 6) [2024] NSWSC 1634
- Case
- [2024] NSWSC 1634
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the interlocutory regime of orders should be maintained and whether any variations were necessary. Additionally, the court had to consider the appropriateness of a specified gross sum costs order under the Civil Procedure Act 2005 s 98(4)(c) in light of the long-running dispute and the need to accelerate the disengagement of the parties from their present disputes. The discretionary factors relevant to making a specified gross sum costs order included the need to avoid further aggravating contests between the parties, particularly in relation to costs assessment.
The court held that the interlocutory regime of orders should be continued on a permanent basis but with some variations to reflect the final judgment. The court also found that a specified gross sum costs order should be made instead of a costs assessment. The court considered it necessary to accelerate the disengagement of the parties from their present disputes and to avoid further aggravating contests between them, including in relation to costs assessment. The discretionary factors relevant to making a specified gross sum costs order, including the long-running nature of the dispute, led the court to conclude that this was the appropriate course of action.
The court made an order that the interlocutory regime of orders be continued on a permanent basis with certain variations, and a specified gross sum costs order was made in favour of the plaintiff.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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