Clough v Breen (No.5) [2024] NSWSC 337

Supreme Court New South Wales

Medium Neutral Citation: Clough v Breen (No.5) [2024] NSWSC 337 Hearing dates: 12 February 2024 Date of orders: 9 April 2024 Decision date: 09 April 2024 Jurisdiction: Equity Before: Slattery J Decision: The first defendant is ordered to pay a total of $28,000 in aggravated and exemplary damages in respect of three incidents. The defendants are ordered to pay 60% of the plaintiff's costs of the proceedings to date. Catchwords: LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of an inclinator and rights of foot access – previous judgment determines that the first defendant has engaged in excessive use of easements and has trespassed beyond the boundaries of the designated easement and obstructed or interfered with use of the easement, occasioning nuisance to the plaintiff in four out of eight alleged incidents – conduct of the first defendant found to amount to a substantial interference with the rights of the plaintiff under the easement and a trespass upon a servient tenement – whether damages should be awarded and whether aggravated or exemplary damages should be awarded – assessment of the quantum of damages. COSTS – Party/Party – Court's discretion – proceeding not complete – whether a costs order should be made at this stage- plaintiff is successful in respect of four out of eight incidents at final hearing and in respect of some issues at earlier hearings – what overall costs orders should be made in the circumstances – what costs orders should be made in respect to a decision of a judge to grant restraining orders with respect to the conduct of the first defendant on one occasion – whether costs orders should be made now or at the conclusion of the proceedings. Cases Cited: Clough v Breen & Anor [2022] NSWSC 1026 Clough v Breen (No. 4) [2023] NSWSC 1155 Day v The Ocean Beach Hotel Shellharbour Ltd (2013) 85 NSWLR 335 Lamb v Cotogno (1987) 164 CLR 1 State of New South Wales v Ibbert (2005) 65 NSWLR 168 Tilden v Gregg [2015] NSWCA 164 Category: Principal judgment 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: Mr D. O'Connor; Ms C. Langford Defendant/Cross Claimants: Mr F. Maghami; Mr M. McGirr