Clough v Breen (No. 6)

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.