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Clough v Breen (No. 6)

Clough v Breen (No. 6)

Case [2024] NSWSC 1634 18 December 2024

Easements & Covenants

Interlocutory Orders

Costs

Property Law

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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 Dillon
Representation:
Counsel:
Plaintiff/Cross-Defendant: D O’Connor
Defendants/Cross-Claimants: M McGirr
Solicitors:
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

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.
The determination of these questions requires reference back to several of the Court’s prior judgments. As to the…

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. 6)

Details

AGLC: Clough v Breen (No. 6) [2024] NSWSC 1634
Case: [2024] NSWSC 1634
Decision Date: 18 December 2024

CaseChat Overview and Summary

The proceedings in Clough v Breen involved a protracted dispute between two property owners over easements. The case was heard in the Supreme Court of New South Wales, which was asked to determine whether the interlocutory regime of orders imposed on the parties should be continued on a permanent basis and, if so, whether those orders should be varied. The case has been the subject of multiple proceedings over many years, leading to the court being asked to consider the appropriateness of the interlocutory orders in light of the final judgment.

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