Clough v Breen (No.7) - [2025] NSWSC 344

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Clough v Breen (No.7) [2025] NSWSC 344
Hearing dates: 14 February 2025
Date of orders: 10 April 2025
Decision date: 10 April 2025
Jurisdiction: Equity - Real Property List
Before: Slattery J
Decision:
Adjustment made to the existing specified gross sum costs order in the plaintiff’s favour to reduce it to from $161,500 to $150,000. Order that the plaintiff pay the defendant $400 on account of the removal and replacement of the storage area camera. Other consequential orders made.

Catchwords:
COSTS – adjustment to costs orders – specified gross sum cost order – Civil Procedure Act 2005 s 98(4)(c) – what adjustments should be made to existing costs orders in the proceedings by reason of a decision of the Court of Appeal overturning part of the Court’s prior judgments at first instance.
CIVIL PROCEDURE – interest – whether in calculating offsetting claims in costs, whether interest should run on a Local Court judgment the subject of a temporary stay on enforcement when no order made it interest should not run under Civil Procedure Act 2005 s 101(4).

Legislation Cited:
Civil Procedure Act2005, ss 98, 101

Cases Cited:
Breen v Clough [2024] NSWCA 316
Clough v Breen & Anor (No. 2) [2022] NSWSC 1759
Clough v Breen (No. 4) [2023] NSWSC 1155
Clough v Breen (No.5) [2024] NSWSC 337
Clough v Breen (No. 6) [2024] NSWSC 1634

Texts Cited:
N/A

Category: Costs
Parties: Plaintiff: Christine may Clough
First Defendant: Douglas Martin Breen
Second Defendant: Tracy Jane Dillon
Representation:
Counsel:
Plaintiff: D O’Connor
Defendants: M McGirr
Solicitors:
Plaintiff: Redmond Hale Simpson
Defendants: Morson Law

File Number(s): 2020/130704
Publication restriction: N/A

JUDGMENT

This is the seventh judgment in these protracted easement proceedings between neighbours in the Sydney suburb of Lugarno. The parties share a common mechanical inclinator which provides access between the street and their waterfront properties. The use of this inclinator has caused immense aggravation between them.
This judgment deals with what appear to be the last remaining issues:

what variation, if any, should be made to the Court’s existing lump sum cost orders as result of the decision of the Court of Appeal in Breen v Clough [2024] NSWCA 316 on 24 December 2024 (“the Court of Appeal’s decision”);

what variation, if any, should occur to existing relief or to consequential relief as result of the judgment of the Court of Appeal’s decision;

what supplementary orders, if any, should be made about an issue of interest on costs arising out of a local Court judgment; and

other miscellaneous matters.

This judgment should be read with the Court's six previous first instance judgments in the present proceedings. Four of those judgments are listed in Clough v Breen (No. 4) [2023] NSWSC 1155 at [6] - [8] ("Clough No.4"). This was followed by Clough v Breen (No.5) [2024] NSWSC 337 (“Clough No.5”), which was delivered on 9 April 2024 and Clough v Breen (No. 6)

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.7)

Details

AGLC: Clough v Breen (No.7) [2025] NSWSC 344
Case: [2025] NSWSC 344
Decision Date: 10 April 2025

CaseChat Overview and Summary

The parties in Clough v Breen were the plaintiff, Clough, and the defendant, Breen. The dispute concerned the adjustment of costs orders, specifically a specified gross sum cost order, following a decision of the Court of Appeal overturning part of the Court’s prior judgments at first instance. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue was whether, and if so how, the costs orders should be adjusted under section 98(4)(c) of the Civil Procedure Act 2005 in light of the Court of Appeal's decision. Another issue was whether interest should run on a Local Court judgment that was subject to a temporary stay on enforcement, when no order was made that interest should not run under section 101(4) of the same Act. The court had to determine what adjustments, if any, were necessary to the existing costs orders and whether interest should be applied to the judgment in question.

The court examined the relevant statutory provisions and found that the adjustments to the costs orders should reflect the Court of Appeal's decision, ensuring that the orders were consistent with the outcome of the appeal. The court held that, in the absence of an explicit order to the contrary, interest should not run on the Local Court judgment during the period of the temporary stay on enforcement. The court balanced the need for fairness in the costs adjustment with the statutory provisions governing interest on judgments.

The court ordered that the costs orders be adjusted to reflect the decision of the Court of Appeal and that no interest should run on the Local Court judgment during the period of the temporary stay on enforcement. The specific adjustments made to the costs orders were detailed in the judgment, ensuring clarity and compliance with the statutory requirements.

Orders