Breen v Clough [2017] NSWSC 1681

Supreme Court New South Wales

Medium Neutral Citation: Breen v Clough [2017] NSWSC 1681 Hearing dates: 9-12, 16 October 2017 Date of orders: 05 December 2017 Decision date: 05 December 2017 Jurisdiction: Equity Before: Darke J Decision: See paragraphs [259] and [273]. Catchwords: LAND LAW – easements – substantial interference with rights under easements – where neighbouring properties have reciprocal benefits and burdens under easement to enable shared use of inclinator – where inclinator registered in defendant's name with regulator – regulator issued notices requiring works to be done to inclinator – whether defendant's conduct in response to notices constituted a substantial interference with the plaintiffs' rights under the easement

LAND LAW – easements – substantial interference with rights under easements – remedies for interference – damages – damages awarded due to inability to use storeroom landing of inclinator – damage for expenses and inconvenience – exemplary damages claimed – exemplary damages not warranted

LAND LAW – easements – construction of easements – general principles of construction – where easement incorporates statutory terms of right of access – where easement imposes obligation to "ensure proper maintenance, repair and replacement" – consideration of parties' rights and obligations under easement

EQUITY – equitable remedies – injunctions – plaintiffs seek a range of injunctions against defendant in relation to easement for inclinator – appropriate to order mandatory injunctions requiring replacement of fence with gate, provision of keys, and relocation of control buttons for inclinator Legislation Cited: Conveyancing Act 1919 (NSW), s 181A, Sch 8 Occupational Health and Safety Act 2000 (NSW), ss 91, 135, Pt 6 Occupational Health and Safety Regulation 2001 (NSW), cll 83, 113 Work Health and Safety Act 2011 (NSW), Sch 1, cll 3-6, Sch 4, cll 4, 8 Work Health and Safety Regulation 2011 (NSW), Sch 18B, cl 31 Work Health and Safety Regulation 2017 (NSW), cll 10(1B), 246, Sch 5, Pt 2 Cases Cited: Butler v Muddle (1995) 6 BPR 97,532 Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580 Powell v Langdon (1944) 45 SR (NSW) 136 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 Zenere v Leate (1980) 1 BPR 97,029 Category: Principal judgment Parties: Douglas Martin Breen (First Plaintiff) Tracey Jane Dillon (Second Plaintiff) Christine Mae Clough (Defendant) Representation: Counsel: Mr C Ireland with Ms T Davy (Plaintiffs) Mr D O'Connor with Ms F McNeil (Defendant)