Breen v Clough [2024] NSWCA 316

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Breen v Clough [2024] NSWCA 316 Hearing dates: 26 November 2024 Date of orders: 24 December 2024 Decision date: 24 December 2024 Before: Ward P at [1]; Stern JA at [67]; Griffiths AJA at [68] Decision: 1. Leave to appeal be granted. 2. Allow the appeal on Ground 1(a). 3. Set aside the Declaration (in Order 1) and Order 2 of the orders made by Slattery J on 19 December 2022 and in lieu thereof declare that the defendants are authorised by Easement I to place, maintain and use the CCTV camera installed at the storage area level below landing 5 on the area of the plaintiff's land that is burdened by Easement 1. 4. Order the applicants to pay the respondent's costs thrown away by the abandonment of the proposed grounds of appeal other than Ground 1. 5. Order the respondent to pay the applicants' costs of Ground 1(a) of the appeal. 6. Order the respondent to pay the applicants' costs of the argument in the proceeding at first instance as to the Storage Area Camera issue. Catchwords: REAL PROPERTY – Easements – Construction of the definition of the statutory terms of an easement for services – Where applicant had installed a CCTV camera to monitor passageway outside storage area – Where CCTV cables traversed benefited lot – Whether on proper construction of statutory terms of easement the CCTV camera was a "domestic service" "to or from" the benefited lot – Whether necessary that service provided by a third party provider – Appeal allowed Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, Sch 8, Pt 11 Property Legislation (Easements) Bill 1995 (NSW) Uniform Civil Procedures Rules 2005 (NSW), r 28.2 Cases Cited: Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 Breen v Clough [2017] NSWSC 1681 Breen v Clough [2018] NSWCA 172 Clough v Breen (No 4) [2023] NSWSC 1155 Clough v Breen (No 5) [2024] NSWSC 337 Clough v Breen (No 6) NSWSC 1634 Clough v Breen [2020] NSWSC 653 Crampton v R (2000) 206 CLR 161; [2000] HCA 60 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1988] HCA 28 Category: Principal judgment Parties: Douglas Martin Breen (First Appellant) Tracey Jane Dillon (Second Appellant) Christine May Clough (Respondent) Representation: Counsel: HW Somerville and DF King (Appellants) DP O'Connor and SA Scott (Respondent)