Clough v Breen (No. 4)

1. [1]

   The plaintiff, Ms Christine Clough and her husband, Mr Michael Rose are neighbours of Mr Douglas Breen and Ms Tracy Dillon. Both couples share views of breathtaking beauty across the still waters of Little Moon Bay on the Georges River. The boundary between their two properties on Moons Avenue, Lugarno traverses steeply sloping waterfront land. But for 13 years they have been involved in an ugly dispute about the easements giving them rights to use an inclinator, which serves both their properties.

2. [2]

   Ms Clough is the registered proprietor of a property which will be described in these reasons as Lot 116. Mr Breen and Ms Dillon are the registered proprietors of the adjoining property, which will be described as Lot 118. Both lots have a very narrow frontage to Moons Road and a wider frontage at the Georges River high water mark. They were subdivided in 1922. Both lots fall away from the street steeply at first. Their landform becomes less precipitous closer to the waterfront.

3. [3]

   An instrument under Conveyancing Act 1919, s 88B (“the s 88B instrument”), registered on 18 January 2002 with Deposited Plan 1036625, created 11 easements (Easements A to J) that control the use of and access to the shared single inclinator servicing Lots 116 and 118. The inclinator is substantially physically located on Lot 116 but is accessible by Mr Breen and Ms Dillon under the terms of one of the easements from Lot 118 at several points along the common boundary between Lots 118 and 116.

4. [4]

   Only three of the easements created by the s 88B instrument are in contest in these proceedings. These three easements have been conventionally identified in the contest between these parties by reference to their names on the s 88B instrument, as “Easement A”, an easement for a right of access to the inclinator and an associated easement for services, “Easement I” being another easement for services, and “Easement J”, an easement to permit an encroaching structure to remain. The central contest concerns Easement A. Some of the other 11 easements are mentioned throughout these reasons

5. [5]

   In these proceedings, Ms Clough claims damages for trespass and nuisance, and declaratory relief concerning the parties’ respective rights under the s 88B instrument. Mr Breen and Ms Dillon cross-claim, seeking orders for the replacement or maintenance of the inclinator, or alternatively for the appointment of an independent expert to assess the inclinator for that purpose. Mr Breen and Ms Dillon also seek orders for access to the inclinator easement through a gate in the dividing fence of the two properties which is currently locked, together with the imposition of a dispute resolution mechanism in relation to the use, servicing, and management of the inclinator. The parties’ respective claims for final relief draw upon evidence related to several incidents which occurred between them between 2018 and 2021.

6. [6]

   The parties have litigated issues related to the inclinator and the easements several times since 2010: Breen v Clough [2017] NSWSC 1681, Darke J (“the 2017 judgment”); Breen v Clough [2018] NSWCA 172 (“the Court of Appeal judgment”); and Clough v Breen [2020] NSWSC 653, Rees J. Ms Clough commenced the current proceedings by Summons filed on 1 May 2020. Her contentions are now pleaded in a Further Amended Statement of Claim filed on 13 April 2022.

7. [7]

   The current proceedings have a lengthy procedural history ending only in July this year. Darke J rightly described the relationship between these parties arising from their dispute as “lamentable”: [2017] NSWSC 1681 at [225]. The current proceedings began in a five-day hearing commencing on 9 May 2022. That hearing revealed intense day-to-day aggravations and consequent disputes in the daily use of the inclinator. The Court concluded that these disputes were unnecessarily distracting for the local Police Area Command and needed rapid de-escalation in the public interest. The Court distributed a draft regime to the parties to regulate their use of the inclinator and to restrain their unfettered exercise of their respective rights under the s 88B instrument.

8. [8]

   The Court gave judgment on 1 August 2022, providing a detailed interim regime for the parties’ use of the inclinator both to try and reduce the number of incidents between the parties and to assist the Court to mould final relief: Clough v Breen & Anor [2022] NSWSC 1026. The parties appear to have substantially adhered to this interim regime, although both sides allege it has been contravened. On 19 December 2022 the Court gave judgment on one of the contentious issues dividing the parties, which concerned the placement of a CCTV camera: Clough v Breen & Anor (No. 2) [2022] NSWSC 1759. The Court reviewed the operation of the interim regime and several other disputes arising in February, April, and May 2023 between the parties, which led to the publication on 3 July 2023 of a further judgment resolving some pecuniary disputes arising from the interlocutory orders: Clough v Breen & Anor (No. 3) [2023] NSWSC 752.

9. [9]

   Mr D. O’Connor and Ms C. Langford of counsel, instructed by Michael Sommerville of Redmond Hale Simpson Solicitors & Barristers, appeared for the plaintiff/cross-defendant, Ms Clough. Mr F. Maghami and Mr M. McGirr of counsel, instructed by Charlotte Morson, of Morson Law Litigation Lawyers appeared for the defendants/cross-claimants, Mr Breen and Ms Dillon. The Court observed several times during the hearing and records here that notwithstanding the bitterness of the parties’ disputes counsel and solicitors have maintained admirable objectivity to assist the Court, whilst pursuing their clients’ respective cases with all necessary professional vigour.

10. [10]

    The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy this narrative does not always include reference to versions of the facts that the Court has rejected.

11. [11]

    The narrative is divided into four parts: (1) some general comments about the credibility of the parties and witnesses, (2) a description of the properties, the inclinator, and the easements, (3) a short history of the various proceedings between the parties, and (4) the Court’s findings in relation to the several factual disputes in contest between the parties.

Two Lugarno Neighbours and an Inclinator – 2010 to 2023

1. [12]

   Ms Clough. Ms Clough’s evidence and her credibility, like that of most of the other parties, should be judged against the background of 12 years of disputation since these parties first became neighbours. Perhaps unsurprisingly after the history of this matter, Ms Clough’s first reaction was generally to think the worst of Mr Breen and Ms Dillon. And this was not without cause. The Court finds in these reasons that on occasions Mr Breen engaged in aggravating conduct in relation to Ms Clough and exercised his easement rights without regard to the ordinary courtesies of give-and-take between people living in close quarters, such as in these two properties. This was one of the reasons that Ms Clough developed a jaundiced view of both Mr Breen and Ms Dillon, which both distorted her evidence and profoundly influenced her day-to-day reactions to her neighbours.

2. [13]

   Ms Clough could not accept that Mr Breen or Ms Dillon had any legitimate reason to question her interpretation of her and their rights to use the inclinator. But as these reasons show her interpretation of her rights was not always correct. Moreover, Ms Clough has long abandoned any empathy for her neighbours and replaced it with a default position of suspicion and hostility. But in several of the incidents which the Court has had to consider, Ms Clough’s suspicions about Mr Breen’s and Ms Dillon’s use of the inclinator were unjustified.

3. [14]

   Ms Clough was a generally reliable witness but one that the Court nevertheless assessed cautiously. On several occasions when she was asked to make admissions about her conduct or that of her husband, Mr Rose, she declined to do so when an admission was called for and her denial was disingenuous. She was not an intentionally dishonest witness. But whenever Mr Breen did not recognise her claimed rights or did not treat her with neighbourly respect, she could react quickly and vigorously to assert her rights. Her direct reactions to Mr Breen’s conduct generated some of the main disputed incidents between these parties.

4. [15]

   Mr Rose. Ms Clough’s husband, Mr Rose, also resides in Lot 116. He came across to the Court as a mostly reliable witness. He generally backed up Ms Clough’s account on contentious matters to which they were both witnesses. But he was heavily invested in his and Ms Clough’s perspective about the respective rights of Lot 116 and Lot 118 in relation to the inclinator, which had its own distorting effect upon his account of events. Some of the direct evidence about his poor behaviour towards Mr Breen and Ms Dillon contrasted with the generally courteous style that he presented to the Court. But the Court accepts Ms Dillon’s account of his at times aggressive conduct towards her.

5. [16]

   Mr Breen. Mr Breen was a perplexing witness. He is clearly a highly intelligent man of professional background. He describes himself as an “aviation business consultant”. Yet he was often prepared to answer questions selectively and to propound his own case in his answers, rather than addressing the questions asked of him. The video evidence and oral testimony that the Court accepts demonstrates that when frustrated, he is prepared to use his size, his voice, and his manner to intimidate people he wishes to bend to his will. Moreover, he is adept at developing stratagems to circumvent people or issues that might be obstacles to him getting his way.

6. [17]

   His evidence came across much the same way. He saw his time in the witness box not so much as part of an exercise in giving a truthful account of past events, but rather as a game of tactics, in which he was trying to win a contest with counsel. The Court directed him on several occasions to answer questions that he was avoiding. The Court is not confident Mr Breen made a faithful and factual account of events as his first choice in evidence, when he perceived his self-interest was at stake. But his own perception of Ms Clough was distorted in a similar way to hers. He could give little credit to anything that she did or said. He regarded her as malevolently targeting him in all their interactions and justified much of his conduct as the taking of defensive measures against her. This distorting attitude impaired his credibility, and he had no obvious insight into this distortion.

7. [18]

   Mr Breen also has little insight into the personal boundaries other people naturally adopt around themselves. He gives an impression to the Court of his looking at Easement A and Lot 116 as his own domain without any of the nuanced and reasonable restraint on his use of those spaces that the law requires of a dominant tenement owner.

8. [19]

   Ms Dillon. Ms Dillon differed from the other three principal witnesses. She had genuine insight into the causes of the cross-border conflict between these neighbours, and she attempted to bring some objectivity into her account of the conflict. She gave considered answers and attempted to engage with the questions put to her rather than arguing her case, resulting in evidence which the Court mostly accepts. Ms Dillon made some concessions against interest in answer to the questions put to her.

9. [20]

   Yet not far below the surface, her testimony carried a brittle intolerance towards Mr Rose and Ms Clough. As she saw it, they were the cause of years of unremitting neighbourhood conflict which injected tension into her household. Ms Dillon gave a compelling account of her fear of being stalked by Mr Rose, an account which the Court accepts. Some parts of her account were moulded by her own sense of vulnerability to Mr Rose’s conduct. But her account was credible and was one reason the Court formulated an interlocutory regime to regulate the interactions of these parties.

10. [21]

    This account of the credibility of the parties describes four personalities who were probably destined to misunderstand one another. That together with the cadastral compression of Lots 118 and 116, has fed an enduring conflict between them.

11. [22]

    Mr Drew. Mr Drew is a locksmith. Ms Clough engaged him. He became unwittingly enmeshed in these disputes. Mr Drew was an excellent witness, precise, direct, understated, and honest. He adhered to a consistent well-recollected and considered account of the events in which he was involved. He could draw additional detail from a sound recollection of those events. He gave a disturbing account of his intimidating encounter with Mr Breen, which the Court wholly accepts. Wherever his evidence and that of Mr Breen diverges, the Court unreservedly accepts Mr Drew’s evidence.

12. [23]

    Mr Gillespie. Mr Breen engaged Mr Gillespie to assess the suitability of the inclinator site on Lot 116 for upgrade to a more modern inclinator installation. He was well across the technical detail of the design and installation of the inclinators which he was quoting on behalf of Ralius Pty Ltd. He could explain their operation and the need for their improvement very clearly. But the assessment of his evidence is incomplete and must await the next phase of these proceedings when technical issues will come into focus.

13. [24]

    None of the parties except perhaps Ms Dillon had reservations about the merit of their positions and their interpretations of their rights. And Ms Dillon too could take an exaggerated stance when her rights were not recognised. But as these reasons show, aspects of both sides’ interpretations of their rights were wrong.

14. [25]

    The reader is best assisted by a description of the topography of Lots 116 and Lots 118 before the structure of the easements over both lots is examined. These reasons follow that course.

15. [26]

    Topography and Landings. The topography of Lots 116 and 118 is difficult. Each lot is about 100m deep and falls approximately 40 meters between Moons Avenue and the Georges River. Both lots are also narrow, presenting only a 5-metre frontage to Moons Avenue and gradually widening to approximately 13 meters at the waterfront. Lot 118 is about 720 m² and Lot 116 about 735 m². To adapt the narrow, steep block to maximise water views, each property steps down through multiple levels towards the waterfront.

16. [27]

    These tight dimensions show that the original 1922 subdivision made greedy use of the natural beauty of this area, somewhat to the disadvantage of later residents, as these proceedings so clearly show. Although these parties have directed torrents of anger at one another, it may be of some comfort to them to appreciate that the original subdivision of this land, displayed in figure 1 below, is one contributing factor to their conflict, which emerged a century later in these proceedings.

17. [28]

    Inclinators are necessary in this area, due to the narrow frontages to Moons Avenue, which fall steeply to the wider blocks down on the Georges River. The improvements to each of Lot 116 and Lot 118 follow a familiar pattern in this Lugano headland: garages and storage areas up on Moons Avenue with paths and inclinators leading down to houses by the water’s edge. The street level structures on Lot 116 and Lot 118 consist of two garages, one higher (Lot 116’s garage) than the other (Lot 118’s garage), and a storage area.

18. [29]

    The parties can access each level of their respective property using the inclinator, which is largely constructed on Lot 116, in an easement corridor that nearly abuts Lot 118 towards the Georges River and diverges from the boundary as the landform rises to Moons Avenue. An alternative access is available on foot through a series of easements which mainly traverse Lot 118. Ms Clough has her own pathway up and down the length of Lot 116. This does not give independent access to Moons Avenue but allows Ms Clough to cross the inclinator corridor and join the right of footway traversing Lot 118 by steps leading up to the garage structure at Moons Avenue.

19. [30]

    From Moons Avenue to the water’s edge, the inclinator can stop at six landings. These are conventionally numbered in descending order from Moons Avenue (Landing 6) to finish at the Georges River (Landing 1). Each of the six landings and their associated fixed gates feature in aspects of the parties’ present disputes. The inclinator travels along a single rail fixed at regular intervals by concrete pylons to the ground. When the inclinator car travels along this rail, it travels over ground cleared to a degree to minimise interference from undergrowth to the travel of the inclinator and to permit its trailing cable (which conveys the electricity supply to its motor) to play out. In these reasons for convenience this corridor of cleared ground is referred to as the “inclinator corridor”.

20. [31]

    At Moons Avenue, each of Ms Clough (Lot 116) and Mr Breen and Ms Dillon (Lot 118) have their own driveway. But as each lot only has a 5-metre frontage to Moons Avenue their garages cannot easily be accommodated side-by-side. Due to this space scarcity Ms Clough’s garage (represented on the Deposited Plan as Easement ‘H’) sits atop Mr Breen’s and Ms Dillon’s garage (represented on the deposited plan as Easement ‘G’). From Moons Avenue Ms Clough’s driveway slopes gently upwards into her garage and Mr Breen’s and Ms Dillon’s driveway slopes more steeply down into their garage.

21. [32]

    Landing 6 for the inclinator is located at the top of Ms Clough’s driveway on its right-hand side as one faces into Lot 116. Entry from Landing 6 into the inclinator is now accessible to both parties, although Darke J resolved a dispute in which Ms Clough had retained the access keys to this landing herself. Landing 6 is considered the street level landing and is the landing generally used by anyone visiting Lot 116 or Lot 118.

22. [33]

    The inclinator’s power isolator is located at Landing 6. Also located on Landing 6 is one of the cameras erected by Mr Breen, which faces towards the entrance to the inclinator at that level. The camera is affixed to a pole on a retaining wall which separated the parties’ driveways. Its field of vision has been blocked by a wooden board erected below the roof of the entrance to Ms Clough’s garage.

23. [34]

    Landing 5, the next level down, is within the garage of Mr Breen and Ms Dillon. It can be accessed from Moons Avenue and the parties’ residences using the easement path or the inclinator. Separating Landing 5 from the inclinator corridor is a sliding white gate, which can be locked from each side using a key (“the Landing 5 gate”). One of the contested incidents that took place between these parties occurred at the Landing 5 white gate. A door opening to the street gives access into Mr Breen’s and Ms Dillon’s garage and through that garage to the Landing 5 gate. The complex of easements in the s 88B instrument gives Ms Clough rights of access to the Landing 5 gate through Mr Breen’s and Ms Dillon’s private garage, which because of the difficult relationship between these parties has become a major flashpoint between them.

24. [35]

    A storage area exists one level below Landing 5 as part of the joint concrete garage structure near Moons Avenue. This storage area may be accessed from the street through an external door at the same level as Mr Breen’s and Ms Dillon’s garage from which spiral stairs descend to the storage area. This external door is adjacent at the street level to the doorway which gives access both to Mr Breen’s and Ms Dillon’s garage and the Landing 5 gate. The parties have access to the level below Mr Breen’s and Ms Dillon’s garage (‘the storage level’) via the spiral staircase.

25. [36]

    The storage level comprises a veranda (Easement ‘C’) which allows access to separate storage areas for each of Ms Clough and Mr Breen and Ms Dillon (Easement ‘F’). This veranda housed the CCTV camera which was the subject of the Court’s 19 December 2022 judgment and has since been removed. The storage area level contains an access point for the inclinator, but the inclinator cannot be summoned from the storage level. Access to the storage level via the inclinator can only be achieved by manually stopping the inclinator. Otherwise, the storage level can be accessed by the parties from above using the spiral staircase, and from below using the easement path that winds up through Lot 118.

26. [37]

    From the storage area level, a single pathway runs for about 15 metres downwards close to the boundary of Lot 116 and Lot 118. And from that single pathway, at a point among the concrete foundations of the garage complex it is possible (by using Easement B) to either (a) step across the boundary onto Lot 116 directly down onto the inclinator corridor, or (b) step the other way down formed stone stairs onto Lot 118 to descend along the easement path that winds through Lot 118. For convenience in these reasons the step down described in (a) in this paragraph onto the abutting Lot 116 is described as “the Lot 116 stepdown”. The quality of access to the inclinator corridor through the Lot 116 stepdown features in the issues in the proceedings. There is no defined right of footway or right of access over Lot 116 for the owners of Lot 118 outside the inclinator corridor. There is a formed pathway on Lot 116, which allows occupants of Lot 116 to access the Lot 116 stepdown and thereby to re-join the single pathway beneath the garage complex.

27. [38]

    As a result of the need to comply with the regulatory safety requirements discussed in Darke J’s decision, in the first quarter of 2015 Ms Clough erected fencing on the boundary between Lot 118 and Lot 116 from a point below the garage complex right down to the residences near the water’s edge. This construction placed locked gates at various landings along the boundary. These landings below the storage area are now discussed in more detail.

28. [39]

    Landing 4 is located approximately 70 meters along the boundary between the lots down from Moons Avenue. The lots fall significantly between Moons Avenue and Landing 4, and the Easement B path (giving rights of access to the Lot 116 owner over Lot 118) is the most difficult to traverse in this section, especially underneath the concrete complex containing the garages. Both Lots 116 and 118 can access the inclinator at Landing 4. The Easement B path from Moons Avenue over Lot 118 ends at Landing 4, from which point both parties can access their residences using staircases on their respective properties.

29. [40]

    Between the storage level and Landing 4 lies the site of another contentious issue between these parties. Apart from the Lot 116 stepdown, the only other potential physical access to the inclinator corridor from Mr Breen’s and Ms Dillon’s side at any point between the storage level and Landing 4 is through a gate in the Colourbond dividing fence (“the garden gate”) which is approximately 30 meters down from the storage level and 40 meters up from Landing 4. The garden gate is presently locked on Ms Clough’s side and remains locked under the Court’s orders.

30. [41]

    Mr Breen and Ms Dillon contend that access to the inclinator corridor is difficult at any point between the storage level and Landing 4 due to the steepness of the terrain there. For this reason, they say that access to the garden gate is necessary to allow them to conduct works under the easement for services on the inclinator corridor (part of Easement A). But at the garden gate the boundary of the easement accommodating the inclinator corridor is a small distance (about a metre) away from the boundary between Lot 116 and Lot 118. This means that a person using the garden gate to access the easement over the inclinator corridor must traverse part of Ms Clough’s property outside Easement A. Ms Clough objects to any such use of the garden gate, which she claims amounts to a trespass on her property, Lot 116.

31. [42]

    Landing 3 is also accessible to both parties. It lies close to the commonly used front entrance to the residence on Lot 118. From both their residences, the parties can access Landing 3 using their own staircases or using the inclinator.

32. [43]

    Landing 2, the next landing down the Georges River, is only accessible to Mr Breen and Ms Dillon. It is situated at a point close to their front door at the side of their residence.

33. [44]

    Landing 1 is accessible to both parties. Its gate opens onto a relatively confined area adjacent to the front door of Ms Clough’s residence on Lot 116 and faces a gate leading to the pool area of the residence on Lot 118. Both parties can access Landing 1 using the inclinator, or by using a combination of the easement path and their own stairs. The stairs between Landing 2 and Landing 1 on the Lot 118 side are narrow, in part because of the contest between the parties before Darke J about maintaining the width of the inclinator corridor at that point to comply with safety regulations. This issue is discussed again later in these reasons

34. [45]

    Landing 1 is a key point of contention between the parties. It is a small landing sitting between the two residences, at the terminus of the inclinator corridor and where the residences are only a few metres apart; the inclinator gate opens onto Lot 118. But the inclinator’s call button at Landing 1 is situated next to the front door of Ms Clough’s residence. For Mr Breen and Ms Dillon to access this Landing 1 call button to call the inclinator to that landing, they must open the gate and access Lot 116 to call the inclinator.

35. [46]

    The boundary between Lot 118 and Lot 166 runs almost exactly in a North-West to South-East line with the end of the properties down near the Georges River and Landing 1 being North-West and Moons Avenue being South-East. Lot 116 is the more northerly of the two properties. The Court makes only limited use of compass directions in these reasons.

36. [47]

    The inclinator corridor of Easement A is not perfectly parallel to the boundary between Lot 118 and Lot 116. For convenience in these reasons the side of Easement A that is nearest to the boundary of Lot 118 and Lot 116 will be referred to as “the Easement A nearside”. It can be seen from the early discussion in these reasons that the lack of exact alignment between the Easement A nearside and the Lot 118/Lot 116 boundary is the source of several of the parties’ disputes. Easement A crosses over the Lot 118/Lot 116 boundary at a point very close to Landing 3. Near Landing 1 the Easement A nearside penetrates 0.55 metre in a southerly direction into Lot 118. Above Landing 3 towards Moons Avenue the Easement A nearside diverges in a northerly direction away from the Lot 116/Lot118 boundary into Lot 116 by ever larger distances. At Landing 4 the Easement A nearside is 0.495 metres from the Lot 118/Lot 116 boundary. Near the garden gate the distance is even wider.

37. [48]

    This pivoting of the Easement A nearside around Landing 3 means that Mr Breen and Ms Dillon have had to accommodate the penetration of the Easement A nearside into their property near Landing 1. This has meant that the fencing in that area has inconveniently narrowed their stairway. Equally, above Landing 3, where the Easement A nearside diverges from the Lot 118/Lot 116 boundary, issues have arisen about Mr Breen and Ms Dillon’s rights of access over Lot 116 to gain entry to the inclinator corridor.

38. [49]

    The figure below shows the course of Easement A and the relationship between the Easement A nearside to the Lot 118/Lot 116 boundary. It shows the penetration of the Easement corridor into Lot 118 near Landing 1 and the divergence of the Easement A nearside from the boundary closer to Moons Avenue. The diagram also shows the course of Easement B giving access over Lot 118 close to the Lot 116/Lot 118 boundary.

39. [50]

    Despite the widening gap between the Lot 116/Lot 118 boundary and the Easement A nearside, the concrete garage complex up near Moons Avenue is constructed partly on Lot 116 and partly on Lot 118. This allows the step down from the concrete under the garage area, which is part of Easement B, to be used directly to access the inclinator corridor in that area. After descending from the garage structure to ground level below the garage, as earlier indicated, Easement B allows continuous passage on foot over Lot 116 and Lot 118 and shows at the point marked “2.295” on the plan shown in Figure 3 where the step down occurs.

40. [51]

    PR King and Sons Pty Ltd supplied and installed the inclinator in April 2000 at the request of the previous owners of these two properties. It is erected upon 16 piers ranging in size from 0.4m in diameter to 0.7m in diameter, which are set out starting from just below Moons Avenue and are fixed all the way down the inclinator corridor, predominantly on Ms Clough’s property. The inclinator car is approximately 1 metre wide and accepts a maximum load of 272 kilograms. This means the car can fit two adults at once and perhaps three smaller people.

41. [52]

    The inclinator is commanded in two ways. The first is by way of a ‘call button’ at each of the landings (but not at the storage level) which brings the inclinator to that level only. The second is by way of a control panel inside the inclinator car, which contains eight buttons: a key-controlled on/off button, a stop button (which is used to manually stop the inclinator at the storage level), and buttons to the destinations Landing 6 (labelled ‘116 STREET’), Landing 5 (labelled ‘118 STREET’), Landing 4 (labelled ‘LEVEL 4’), Landing 3 (labelled ‘118’), Landing 2 (labelled ‘LEVEL 2’) and Landing 1 (labelled ‘116’). The inclinator does not stop at the garden gate.

42. [53]

    The S 88B Instrument. As can be seen from the more detailed history of the relations between these parties set out below, they had each acquired and occupied Lot 116 and Lot 118 before the registration of the Deposited Plan. With the Deposited Plan was the s 88B instrument creating the various easements. The four easements defined in the s 88B instrument principally relevant to these proceedings are as follows:

    1. (1)

       A Right of Access (Inclinator) and the Easement for Services (marked “A” on the plan) in DP1036625 (“Inclinator and Services Easement” or “Easement A”);

    2. (2)

       An Easement for Storage (marked “F” on the plan) (“Storage Easement”, “Easement F”) in DP1036625;

    3. (3)

       An Easement for Services (marked “I” on the plan) in DP1036625 (“Easement I”);

    4. (4)

       An easement to permit an encroaching structure to remain (marked “J” on the plan) in DP1036625 (“Easement J”).

43. [54]

    The first of these is the main subject of contention in this judgment. The width of the Inclinator and Services Easement varies from 1.18m at its widest to 0.95m at its narrowest. The Inclinator and Services Easement, Easement A, was created to benefit both Lot 116 and Lot 118 and to burden both Lot 116 and Lot 118. The Inclinator and Services Easement is described in the s 88B instrument as: a) Right of Access (Inclinator) and Easement for Services 0.75 wide, 0.9 wide and 1 wide and Variable. Easement A is drafted to pick up the words implied using the expression “Right of Access” in its text: cf Conveyancing Act 1919, s 181A and Schedule 8, Part 14 – Right of Access. This is clear at least because, Easement A speaks about “the Right of Access” without otherwise defining it. Part 2 of the s 88B instrument defines Easement A in its two parts as follows:

44. [55]

    The assumption in the first part of Easement A, by the application of the Schedule 8, Part 14 - Right of Access wording means the right of access conferred by the easement includes the following:

45. [56]

    The proper construction of Easement A is discussed below.

46. [57]

    Ms Clough raises a res judicata defence in reply to several of the defendants’ arguments on their cross-claim. Darke J’s judgment dealt with disputes that arose between the owners of Lot 116 and Lot 118 in the period 2010 to 2015. The nature of those disputes and their determination provide important background to the present contest.

47. [58]

    When Hurstville City Council gave building approval to the construction of the inclinator in September 1998, neither Ms Clough or Mr Breen and Ms Dillon were yet owners of Lot 116 and Lot 118. The previous owners had cooperatively arranged together for the inclinator to be installed. On 5 April 2000, WorkCover NSW certified that the inclinator had been installed in a satisfactory manner. Ms Clough was the first of the present adjacent owners to move into the Moons Avenue area. She acquired Lot 116 in about March 2002. Mr Breen and Ms Dillon moved in later, acquiring Lot 118 in about November 2009. The inclinator was operating by the time Ms Clough acquired the property. Darke J found (at [13]) that Mr Breen wanted to become involved in matters to do with maintenance and upgrading of the inclinator once he became a co-owner of Lot 118. Mr Breen considered, for example, that the inclinator was a “public installation” and therefore an interlocking device was required by law and for safety reasons to be installed on the gate at the landing at the Lot 118 garage level (Landing 5). That suggestion was rebuffed by Mr Rose and Ms Clough and became a long-running issue in the proceedings before Darke J. This issue seems to have prompted Mr Breen to approach WorkCover.

48. [59]

    Mr Breen’s arrival led almost immediately to tension with Ms Clough, who had become used to the more laissez-faire approach the previous Lot 118 owners had shown to her management of the inclinator. An early point of tension arose when Mr Breen contacted PR King, the manufacturer of the inclinator, to initiate a technical discussion. He also contacted WorkCover to discuss the regulatory compliance of the inclinator, although WorkCover had previously registered Ms Clough as the “controller” of the inclinator. In December 2010, WorkCover inspected the inclinator and issued several Improvement Notices pursuant to the Occupational Health and Safety Act 2000, which had come into effect in 2001. The legislation has since been replaced by the Work Health & Safety Act 2011, which is the legislation currently regulating the operation of the inclinator.

49. [60]

    Ms Clough, and Mr Breen and Ms Dillon fell into serious conflict about the correct way to comply with several notices from WorkCover. Due to a lack of agreement about how to address the notices, Ms Clough became concerned that she might be in breach of the applicable legislation or that the inclinator would be uninsurable because it contravened the Work Health & Safety Act 2011. This dispute put the inclinator out of service. Ms Clough disabled it from use by Mr Breen and Ms Dillon from about May 2011 until April 2015.

50. [61]

    Darke J’s judgment was mainly concerned with the operating issues remaining between the parties after the inclinator had been brought back into service. Notwithstanding that the inclinator was operational by mid-2015, Mr Breen and Ms Dillon commenced the proceedings before Darke J alleging that the way the inclinator had been brought back into service was contrary to the requirements of the WorkCover notices and constituted a continuing infringement of their rights under the easements.

51. [62]

    In broad brush the claims that Mr Breen and Ms Dillon made in the proceedings before Darke J were:

52. [63]

    The second of these issues arose because between February and March 2015 Ms Clough had constructed the gates and fences that now constitute the boundary structures separating Lot 116 from Lot 118, in a way she believed complied with the notices that WorkCover had issued. But no consultation had occurred between Ms Clough and Mr Breen and Ms Dillon before execution of these works.

53. [64]

    Darke J disposed of each of these claims as follows. As to (a), the group of claims for alleged wrongful interference, Darke J found Ms Clough was not responsible for unreasonably delaying the repairs to the inclinator to make it compliant with the WorkCover notices. The delay in complying with the notices had meant the inclinator was not used for approximately 4 years. But his Honour found (at [190]) that Mr Breen and Ms Dillon, especially Mr Breen, should bear much of the responsibility for the impasse leading to shutting down the inclinator. Darke J found Ms Clough was not conducting herself unreasonably in turning off the inclinator and keeping it out of service until compliance with the WorkCover notices had been achieved, partly because of the risk of prosecution by WorkCover and partly because of difficulties in insuring the inclinator: Darke J at [208] – [209], and [216].

54. [65]

    As to the allegations in (b), of wrongful interference with the rights of the Lot 118 owners by reason of Ms Clough’s construction of fences and gates along the boundary, Mr Breen and Ms Dillon had partial success. This contest covered different parts of the boundary. As to the area near Landings 1 and 2, Darke J found that there had been no interference with Mr Breen’s and Ms Dillon’s use and enjoyment of their rights under Easement A and the Storage Easement. Ms Clough had located and aligned the fencing in the area on the Lot 118 side of the inclinator corridor between Landings 1 and 2. But in doing that Darke J found that Ms Clough had merely conformed with the requirements of the WorkCover notices.

55. [66]

    But Darke J found that Mr Breen’s and Ms Dillon’s complaints were justified to the extent that Ms Clough had erected a fence across the landing at the storeroom level, which interfered with their rights to access the inclinator. Darke J also found that when Ms Clough authorised the construction of the fences on the boundary between Lot 118 and Lot 116, she had located the control buttons that would need to be used by the occupants of Lot 118 on the inside of the inclinator corridor, which presented safety issues for the occupants of Lot 118 at Landings 2, 3 and 4. But Darke J did not find persuasive Mr Breen’s contention that the inclinator was a public installation and rejected the argument that an interlocking device was needed at Landing 5.

56. [67]

    In relation to (b), Darke J required Ms Clough to deliver keys to the electricity control box and various gates to Mr Breen and Ms Dillon, some of which Ms Clough had previously withheld from them.

57. [68]

    As to (c), the claim that Ms Clough had failed to carry out improvements to the inclinator in accordance with the extant WorkCover notices, Darke J found that she had substantially followed the WorkCover notices.

58. [69]

    Darke J made orders for costs against Mr Breen and Ms Dillon because of their substantial failure on the nuisance aspect of their claim: Breen v Clough (No. 2) [2018] NSWSC 158.

59. [70]

    This is necessarily a high-level summary of Darke J’s findings which does not cover the relevant detail, but the findings give important background to the issues that arise for decision in these proceedings.

60. [71]

    These proceedings require the Court to make findings about a series of incidents occurring between Mr Breen and Ms Dillon on the one side and Ms Clough and Mr Rose on the other in the period 2018 to 2021. The applicable law in relation to these incidents, including construction of the s 88B instrument is set out later in these reasons under the headings related to legal analysis. Some conclusions are drawn during this narrative about whether certain conduct of the parties is actionable or not in nuisance or in trespass. And the findings here assume the interpretation of the s 88B instrument discussed below. The reader is referred forward to that analysis as required.

61. [72]

    Matters came to a head in early 2020 when Mr Breen and Ms Dillon blocked Ms Clough’s access through their garage to the Landing 5 gate. This event led to an urgent application to Rees J in May 2020 in which in interim orders her Honour restored Ms Clough’s access at Landing 5. Even after Rees J’s orders the Landing 5 access remained a point of contention, partly because it is one of the few places where Ms Clough (and her husband Mr Rose) has rights of access to the inclinator through an otherwise enclosed private space owned by Mr Breen and Ms Dillon. Relations between the parties have deteriorated so badly that Ms Dillon now finds it disturbing to encounter Mr Rose and Ms Clough within this confined space.

62. [73]

    The Court required the parties to identify by specific dates the incidents that they each relied upon and were contesting. This was done resulting in a contest about the following eight incidents or courses of conduct. The first of these is an incident back in 2018.

63. [74]

    (1) 21 May 2018 – The Power Outage Incident. Shortly before 21 May 2018 Mr Breen engaged electricians to conduct work on the inclinator. He claimed there had been a power outage at his home. Ms Clough informed the electricians attending at the site that they were not permitted to enter her private property. During the altercation between Ms Clough and Mr Breen on this occasion she attempted to follow him through the inclinator car. She claims that Mr Breen blocked her passage. Ms Clough later attempted to move the inclinator car, and she claims that Mr Breen blocked her from doing so.

64. [75]

    This incident covered a period of several hours on Monday, 21 May 2018. It is not possible to set out the full details of the contested evidence relating to this incident. In this section the Court has limited itself to the critical contests. Some of the events are recorded on CCTV video footage which is evidence from Ms Clough and video footage from Mr Breen.

65. [76]

    The incident commenced when at about 9am Ms Clough noticed on her CCTV camera the two tradesmen were loading tools onto the inclinator car at Landing 5. On reviewing previous CCTV footage for the same morning Ms Clough said that she noticed that the same workmen had been active around the inclinator corridor for some hours before 9am. Ms Clough said she became alarmed at safety issues raised by the workers’ conduct, and she was concerned that they were trespassing onto Lot 116 outside the inclinator corridor. So, she approached the two men, who turned out to be an electrician and his apprentice.

66. [77]

    Upon being challenged they revealed that Mr Breen had engaged them to undertake electrical repairs. They told Ms Clough that Mr Breen and Ms Dillon had no electricity supply over the previous weekend. This surprised Ms Clough who said that she had seen lights on at Lot 118 over the weekend. The electrician called out to Mr Breen who then came out of the Lot 118 residence.

67. [78]

    Mr Breen explained that the family “had no power all weekend”. Ms Clough disputed that there had been a power outage over the weekend. But this was wrong. The Court accepts Mr Breen’s account as accurate. Calling electricians was unlikely unless there was an electrical problem at Lot 118. Mr Breen gives an account, which the Court accepts, of the power circuits tripping throughout the weekend on Lot 118 and the electrician that he called on the Monday morning explaining to him that there had been a power short-circuit located on the inclinator corridor adjacent to Landing 4. He says that he explained this to Ms Clough and the Court accepts that he did.

68. [79]

    But the attitude that she demonstrated on the day was one of complete distrust of him in his management of these workers. But that is hardly a surprise. He had failed to make any attempt whatsoever to give her advance notice that they would be present on the inclinator corridor. That he should have attempted to give her some prior notice is obvious from the history of the matter. His own version is that there had been power outages all weekend. He needed to get supplementary electricity supply from Lot 120. He must have appreciated by some time on Sunday 17 May that he would need to call electricians on the Monday morning. Ms Clough could have been notified at the same time. Mr Breen was evasive when cross-examined about his reasons for not informing her in advance.

69. [80]

    Ms Clough reacted by expressing concern to Mr Breen that the electricians were on the inclinator corridor whilst the inclinator was running. She questioned whether they had appropriate licences and insurance to carry out the works. But her fundamental point was expressed in her statement to Mr Breen, “you need to notify me Doug, if you’d like to access my private property”.

70. [81]

    On this Ms Clough was correct. The physical features of the inclinator corridor mean that safety issues will almost inevitably arise if tradesmen are working underneath the inclinator on the inclinator corridor, whilst the inclinator is able to be operated by one of the Lot 116 or Lot 118 owners. Her request for prior notice before workers came onto the inclinator corridor was reasonable and has been the foundation of the Court’s interim orders since August 2022. This position is consistent with the Court’s construction later in these reasons of the Easement for Services, which requires persons having the benefit of the easement to “do anything reasonably necessary” for the provision of domestic services through the lot burdened. Giving advance notice of work where safety issues are potentially at stake will in most circumstances be “reasonably necessary”.

71. [82]

    Ms Clough decided to exercise a claimed right of veto over any work on the inclinator corridor without her permission. This claim would not have been correct if maintained in isolation. The Lot 118 owners’ rights were not subject to her veto. But she was reacting strongly to Mr Breen’s failure to consult her in advance of this work. She demanded to see the electricians’ licence and insurance before they could carry out works on the inclinator corridor. Mr Breen reacted by asserting “they don’t have to show you anything, they are working for me”. She then said to Mr Breen, “Well without sight of their credentials, they do not have my permission to work on the track or my private property.” This then escalated and Mr Breen invited her to call the police.

72. [83]

    Events then deteriorated over the next few hours, with further aggravating incidents occurring between Ms Clough and Mr Breen around the Landing 4. What followed was a course of conduct about which neither side can be proud. Mr Breen was at fault for not giving advance notice to Ms Clough and seeking her input about the safety arrangements for the electricians and in being able to reassure her by objective evidence that they were properly licensed and insured. After all she would probably share liability if one of them was injured. She on the other hand acted in an aggravating manner which was designed to inflame the situation rather than scale-down the tension. Mr Breen rightly points out in his evidence that Ms Clough had foot access to and from the property that day had she chosen to use it. Whatever Mr Breen did on this occasion apart from the initial failure to give notice, he was so goaded by Ms Clough’s aggravating conduct that it is impossible fairly to isolate his conduct as constituting a nuisance or trespass to her, without seeing it as equally her own responsibility. Ms Clough kept aggressively complaining about the electricians’ lack of credentials. Mr Breen kept directing them not to deal with her. She should have backed off and dealt with the matter through lawyers. He should have been more cooperative and sought to do what he could to satisfy her concerns about the electricians being licenced. In the result neither of these things was done. The available CCTV footage from Ms Clough and the video footage from Mr Breen confirms this assessment of mutual responsibility for an ugly verbal and physical brawl.

73. [84]

    The main events over the next few hours were as follows. There was a physical confrontation within the inclinator car at Landing 4 between Ms Clough and Mr Breen, when Ms Clough claims that she was trying to prevent the inclinator door being propped open on the Lot 118 side at that landing. Mr Breen claims that he was protecting his workmen from her operating the inclinator.

74. [85]

    Later in the morning Ms Clough tried to move the inclinator car down to Landing 1, she claimed to get the inclinator car away from the workers so they would not risk injury. She began directing the workers to comply with her efforts to isolate the inclinator at Landing 1. Mr Breen regarded this as undermining his authority with his own workers. And he did not want to lose control of the inclinator, partly because he thought he could not trust Ms Clough to keep it away. He tried to eject her from the inclinator when she started to take this course. Her presence in the inclinator aggravated and frustrated Mr Breen immensely. Ms Clough knew it would have that effect, but she proceeded anyway. She generally has, and had on this occasion, immense difficulty stepping back from confrontation with Mr Breen, but that was what was required on this occasion, even on her own version of events. To the objective observer much of the conduct of this occasion on both sides was worse than childish and well beneath the adult dignity of either Mr Breen or Ms Clough.

75. [86]

    These events led to allegations of criminal assault which were brought in the Local Court. The findings above generally do not cover the same ground that the criminal assault proceedings had covered. Both Ms Clough and Mr Breen were initially constrained in the amount of evidence that they could deploy in relation to this incident because of the criminal proceedings. The criminal proceedings resolved. Mutual AVOs had been given at an interlocutory hearing. More detailed accounts were later able to be given.

76. [87]

    No actionable nuisance or trespass arose out of this incident.

77. [88]

    (2) Mid 2019 to Mid-2020 – The Business Use of the Inclinator. The issue concerning the business use of the inclinator may be divided into two sub-issues which will be dealt with separately in this section. The first sub-issue is what happened when Mr Breen and Ms Dillon used the inclinator when undertaking construction work on the swimming pool on Lot 118 in approximately the first quarter of 2020. The second sub-issue is whether Mr Breen conducted a business from Lot 118 commencing in July 2019. The common question to be determined is whether by these activities Mr Breen and Ms Dillon made excessive use of Easement A beyond what the easement permits and caused a nuisance or a trespass to Ms Clough. This section of these reasons will deal with each of these issues in turn.

78. [89]

    Renovating a swimming pool on Lot 118 – January to April 2020. Ms Clough complains that between January and April 2020 Mr Breen assisted by others carried out extensive works (particularly tiling) to the swimming pool area of Lot 118. Mr Breen was not living at the property at the time. Ms Clough says that especially given the inconvenience that this building work occasioned to her, that Mr Breen should not have used the inclinator but instead should have arranged a barge on the Georges River to deliver materials and take away spoil.

79. [90]

    Ms Clough gives an account of the works of which she complains in this period. It is not necessary to reproduce that account in these reasons. Suffice it to say that the Court accepts her evidence as to the following matters. Mr Breen engaged several labourers and contractors on-site. They jackhammered the existing pool coping and disposed of the tiles and the rubble, using buckets transported on the inclinator. They also used the inclinator to deliver sand, cement, and tiles to retail the pool area. Ms Clough quickly became annoyed at the extent to which this work disrupted her use of the inclinator, so she began to keep a diary. The Court regards her evidence about this construction work, especially that based upon that diary, as accurate. She gives as an example, which the Court accepts as accurate, of Mr Breen and the labourers taking a total of 42 trips on the inclinator on 24 January 2020. The Court also accepts her evidence that Ms Clough was not consulted about this work. Ms Clough says, and the Court accepts, that on occasions she would wait for up to 30 minutes while the labourers were using the inclinator or left the car door open so that it could not be used. This caused her to be late for appointments.

80. [91]

    As Mr Breen argued, Easement B was available to Ms Clough as an alternative to avoid lateness in these appointments. But setting out on foot is not always a practical choice and deferring setting out on foot in the hope that the inclinator will soon become available, can also be difficult to judge.

81. [92]

    Mr Breen says that in about January 2020 he had to undertake some tiling work around the swimming pool on Lot 118. The Court accepts that he was usually present on site while the tiling work was being carried out and that he supervised the work. Mr Breen says, and the Court accepts, that the inclinator was used to transport some 30 m² of tiles and other materials which were needed to carry out the swimming pool work. And the inclinator was used to transport the tradesmen and labourers working on the swimming pool job as well as the hand tools and a tile cutter. The inclinator was also used to remove any waste from the site.

82. [93]

    Mr Breen accepts part of Ms Clough’s observations about the transportation of these materials from what he was told by the workmen involved and by reviewing CCTV footage. He accepts that the transportation of people and materials to Landing 1 to work in the pool area took most of the day on 24 January 2020 and half the day on 25 January 2020. But he does not accept the extent of the usage for this purpose of which she complains, either on 24 or 25 January or on other days.

83. [94]

    Leaving aside the question of notice to Ms Clough this was a reasonable and necessary use of the inclinator. It has not been demonstrated to the Court by sufficiently satisfactory evidence that this work could have been done in early 2020 using a barge on the Georges River, at a reasonable cost and in compliance with the regulatory environment of the Georges River. In June 2021 Mr Breen and Ms Dillon did purchase a barge to service their house and they plan to use it for future renovations. But that was only after the contest about the renovation revealed by these proceedings. The Court does not regard the use of the inclinator to transport building materials as inherently unreasonable. Ms Clough may have to use it for that purpose one day and in doing so she could not be criticised on that ground alone, provided she gave proper notice and made only reasonable use of the inclinator.

84. [95]

    The Court accepts Mr Breen’s evidence that he was not using the inclinator on 24 or 25 January 2020 for general trade or business purposes. But to the extent the inclinator was loaded with building and construction materials it was for Mr Breen’s and Ms Dillon’s domestic purposes of renovating their swimming pool.

85. [96]

    Mr Breen says that he was unaware that Ms Clough was requesting to use the lift on these days. This is disingenuous. How could she not want to use the inclinator on those days? It could be readily assumed by any reasonable person in a position of Mr Breen based on the topography of these two lots that Ms Clough would want to use the inclinator every day at some time during the day to facilitate convenient access from Moons Avenue. Any excessive use of the inclinator even for otherwise legitimate domestic purposes permissible under the easement, such as renovating a swimming pool, was apt to result in disruption and inconvenience to Ms Clough and occupiers of her property, unless clear advance notice was given to Ms Clough to pre-plan fixed and reliable timeslots during the day when she knew that she could use the inclinator, occupying the inclinator for most of the day was likely to amount to excessive use of it.

86. [97]

    Ms Clough called the police and complained about the work being carried out and what she claimed was the monopolisation of the inclinator by the trades people carrying out the work.

87. [98]

    Mr Breen says that “although the lift was in regular use for this period [of the pool tiling work] I do not believe that the plaintiff or her guests or her own tradespeople were [in any way] unduly inconvenienced by the work”. If this was Mr Breen’s true state of mind it demonstrates a profound lack of ordinary human foresight. But Mr Breen is intelligent, and the statement more accurately discloses a dismissive lack of empathy for Ms Clough.

88. [99]

    Mr Breen should have given Ms Clough a clear warning that the inclinator would be substantially occupied by his tradespeople on 24 and 25 January 2020. Context matters. Relations between the two owners was sufficiently poor by then that in one sense it is understandable that he did not wish to contact her in advance. From his perspective that would lead to aggravating border wars about what time she could have access to the inclinator. Mr Breen solved this by rather highhandedly ignoring her. But this predictably increased her inconvenience and aggravated her immensely. She was not able to plan for that day or to negotiate time periods where she would be able to use the inclinator.

89. [100]

    Mr Breen sees his conduct on occasions such as this in terms of his own rights, not those of Ms Clough. He says in his affidavit evidence commenting on this incident that he and Ms Dillon have no difficulty with Ms Clough and Mr Rose using the inclinator consistently with the terms of the easement and “consider that Ms Clough and Mr Rose should permit us to do likewise”. But this bland statement somewhat misses the point about such incidents. It is unreasonable for either owner to substantially occupy the inclinator for a day and a half with the transportation of building materials without offering in advance arrangements for planned or regular gaps in the tradespeople’s use so the other party can use the inclinator, notwithstanding the carrying out of the works. Mr Breen did not even try do this in relation to this activity.

90. [101]

    But building work on the swimming pool took place over a more extended period than 24 and 25 January 2020. The Court accepts Ms Clough’s evidence that it extended on various days right into April that year. She says and the Court accepts that caused her anxiety, nervousness, and apprehension daily every time she was aware she would need to use the inclinator. She says that the workers on Lot 118 were aggressive towards her. Whether or not objectively judged they were aggressive, her own anxiety about the situation contributed to that view on her part. All that would have been alleviated by proper preplanning, the kind of preplanning which the Court has now imposed in the interim orders of August 2022. The evidence does not permit the Court to make precise findings about the number of days over which the swimming pool work was done. Suffice it to say that it extended over the whole period but certainly not every day and was at its most intense in January 2020, when the demolition work was being done.

91. [102]

    But Ms Clough at times reacted too strongly to this use of the inclinator. The Court accepts Mr Breen’s evidence that on 20 February 2020 Ms Clough physically interrupted the descent of the inclinator and began to take bags of cement out of the inclinator so she could use it. This and her tendency to argue with the labourers, seemed to be born out of frustration on her part as to the long-running nature of these pool works. Mr Breen’s solution advanced in his affidavit evidence was that that Ms Clough could share the inclinator with his labourers and the bags of cement if she wanted to. That was hardly reasonable.

92. [103]

    For these reasons Mr Breen’s course of conduct in relation to the swimming pool retiling works amounted at times to an excessive use of Easement A and therefore a trespass upon Lot 116. The appropriate remedy for this, including perhaps in damages, will be the subject of further submissions.

93. [104]

    Did Mr Breen conduct a business on Lot 118 in 2019 – 2020? Mr Breen variously described himself in his evidence as an aviation business consultant and a licensed aircraft maintenance engineer. But in 2020 he was also running a construction business, which had its registered office at Lot 118. Mr Breen says that the business does not trade from that address. He says that the main equipment for the construction business is either stored offsite in a trailer or in a van. He says that on occasion he has used the garage, on Moons Avenue, for the temporary storage of tools and equipment but this is not common because it is neither secure nor convenient, because it occupies the limited space otherwise to be used for Mr Breen’s or Ms Dillon’s private vehicles.

94. [105]

    The Court accepts Mr Breen’s evidence that he is not conducting a business from Lot 118. Apart from that being inconsistent with the quiet domestic use of Lot 118 by Ms Dillon and the family, making it inherently improbable, the video evidence that Ms Clough has advanced in support of this contention, upon viewing and analysis, falls well short of establishing that a business was being conducted at Lot 118. The video evidence is far more consistent with Mr Breen’s evidence that one of his carpentry apprentices and one of his labourers, who were also employed in his business, were conducting domestic renovation work on the residence at Lot 118. In the video evidence the apprentice and the labourer are not loading the quantities of equipment and material that one might expect if Lot 118 were being used as a business centre, or as a storage depot for the conduct of an external business. Moreover, the way that the Lot 118 gardens have been curated and Ms Dillon’s obvious attachment to Lot 118, make it quite unlikely that she would have been comfortable with the property being used as a business warehouse.

95. [106]

    The video evidence for the most part consists of one labourer loading tools and materials using the Landing 5 gate and unloading at Landing 2 or another landing or travelling in the reverse direction. The video evidence is consistent with Mr Breen’s case. Ms Clough’s contentions on this issue are an example of Ms Clough’s judgment been distorted by her dislike of Mr Breen and Ms Dillon. Ms Clough’s claim on this issue is not made out.

96. [107]

    (3) 18 to 20 March 2020 – The Epoxy Door Incident. On 18 March 2020 Mr Breen changed the locks on the white access gate to Landing 5. On 19 March 2020 Mr Breen admits that he filled with epoxy glue the lock to the timber garage door (“the timber door”) which can be used by pedestrians to access Easement E which extends from the external street area to Landing 5. On 20 March 2020 the solicitors for Ms Clough notified Mr Breen that unless he provided a key to the white gate and the epoxy was removed from the lock to the timber door, she would engage a locksmith to remedy the situation. That in turn led to the locksmith incident, incident four below.

97. [108]

    There is no factual contest about this incident. Mr Breen filled the lock on the timber door with epoxy glue. This together with his changing the white access gate locks, which he also admitted, prevented Ms Clough having access to any part of Easement E. Breen was frank in cross examination in accepting that he changed the lock at Landing 5 and did not give Ms Clough a key and that his conduct in blocking her in this way was intentional. He explained, and the Court accepts, that he placed the epoxy glue in the lock in the timber door because he could not get a replacement for that lock. Prima facie this obstruction to Ms Clough’s rights as the dominant tenement owner of Easement E is an actionable nuisance.

98. [109]

    But context is important. The Court accepts Mr Breen’s explanation of the lead up to this incident. He explained that normally family members on Lot 118 would leave the Landing 5 gate unlocked because when the inclinator stops at that level it is difficult to unlock the gate from within the inclinator. But by early 2020 someone other than members of Mr Breen’s and Ms Dillon’s family began to lock the gate. The Court infers that that was Mr Rose or Ms Clough.

99. [110]

    The anonymous locking of the Landing 5 gate caused significant inconvenience to Mr Breen and Ms Dillon. In the then atmosphere of poor mutual communication between these neighbours, Mr Breen proceeded to change the lock to the garage gate and to epoxy glue the lock in the timber door. He says that it could not be unlocked by anyone, but the key padlock still worked. That is probably irrelevant because Ms Clough did not have the keypad codes.

100. [111]

     But Mr Breen did not do this out of the blue. The Court accepts that shortly before this Ms Dillon telephoned Mr Breen quite frightened one evening saying to him that Mr Rose had been in the garage before her and had locked the gate. Ms Dillon said to Mr Breen “I do not wish to go up there in the dark and find him [Mr Rose] waiting for me”. The Court accepts all Ms Dillon’s evidence that she was genuinely fearful of finding herself in an enclosed space with Mr Rose.

101. [112]

     Ms Dillon genuinely held this fear. Firstly, the Court accepts her evidence to that effect. The way she gave that evidence in the Courtroom conveyed a compelling sense of continuing fear and discomfort about Mr Rose from his past conduct. Secondly, Mr Rose features in other incidents, which the Court has made findings about his aggressive conduct. Thirdly the Court accepts that on several occasions Mr Rose made deliberately provocative statements to Ms Dillon designed to insult and demean the relationship between Mr Breen and Ms Dillon. This was unacceptable behaviour of the most inflammatory kind, which would have exacerbated Ms Dillon’s and Mr Breen’s reactions to Mr Rose’s conduct.

102. [113]

     One piece of evidence that needs to be reconciled against the conclusion that Ms Dillon was fearful of Mr Rose is a video of her confronting him at Landing 5 with her foot in the inclinator during an unfortunate and puerile stand-off between herself and Mr Rose about the Landing 5 access on 18 November 2020. This is not one of the incidents which the Court has been asked to consider as a trespass or nuisance. But it is very revealing about the towering absurdity of the conduct of these parties towards one another and should now be dealt with in a brief aside.

103. [114]

     On the 18 November 2020 incident Mr Rose and Ms Clough were using the inclinator to collect food from a freezer in Ms Clough’s garage area, accessible through Landing 6, and then take it down to Landing 1 to prepare dinner for Ms Clough’s elderly father. Mr Breen suddenly appeared at Landing 6 as they arrived up there in the inclinator. Ms Clough decided to ask him to leave the area and he refused. Mr Rose and Ms Clough say they did this because they were concerned about Mr Breen’s behaviour and that Ms Clough might have been in physical danger from him. So, Ms Clough got out at Landing 5 and Mr Rose stayed in the inclinator. At this point Ms Dillon suddenly appeared at Landing 5 and tried to get into the inclinator.

104. [115]

     But what followed is astonishing. Mr Rose stayed in the inclinator in a stand-off with Ms Dillon. He refused to move or get out of the inclinator. She had thrust her foot into the inclinator car, preventing the Landing 5 and inclinator doors being shut. She would not move either. They stared one another down and abused one another in this hostile stasis for 40 minutes of volatile irrationality. Both should have backed off after a few minutes. Mr Rose could have far better protected his wife’s safety in the presence of Mr Breen by leaving the inclinator to Ms Dillon and going up to see to Ms Clough’s welfare, which was said to be under immediate threat from Mr Breen. Similarly, Ms Dillon should have taken her foot out of the inclinator after a few minutes and let Mr Rose go on his way. It can be accepted that they were both probably stressed by lengthy Covid lockdowns by that time in late 2020. But this incident is the perfect exemplar of why this dispute needs to be quelled.

105. [116]

     But the observation that is relevant for present purposes is that on this occasion Ms Dillon seemed unperturbed by being quite close to Mr Rose and was talking to him firmly asserting her and Mr Breen’s rights. But that was during the day and her husband was nearby filming the incident. And the structure of the incident was such that she appeared on this occasion to have the satisfaction of standing up to Mr Rose, when he could not respond aggressively because Mr Breen was filming everything that was being said and done.

106. [117]

     Returning now to the subject of the obstruction of epoxy glue incident and the blockage of Easement E, what Mr Breen did was quite a telling confirmation of his fear for Ms Dillon’s safety. He was not just obstructing one end of Easement E, but both ends. That supports the inference that he was trying to prevent any unauthorised access to the enclosed Lot 118 garage space which Easement E traverses. This would have kept Mr Rose out entirely. That was his objective, and his conduct is consistent with it rather than just aggravating Ms Clough and Mr Rose by sealing up one entrance.

107. [118]

     Ms Clough and Mr Rose want to use Landing 5 and do so from time to time. This deliberate sealing up of Easement E was an actionable nuisance, and it was substantial as it blocked one significant access route to the street. But since the orders of Rees J on 19 May 2020, no injunctive final relief is in issue because Rees J’s orders have been observed by the parties since then. Whether any damages should be awarded for this nuisance and if so in what quantum is a question for submissions.

108. [119]

     But Mr Breen carried things too far in the following days pursuing an innocent third party to extreme lengths that go well beyond an ordinary reaction to protecting his wife, Ms Dillon. As the Court’s findings in relation to the locksmith incident (incident 4) below show, he was prepared to intimidate the girlfriend of the locksmith, who Ms Clough had engaged. This was a deliberate and inexcusable escalation on his part.

109. [120]

     (4) March 2020 – The Locksmith Incident. Mr Breen attended the premises of the locksmith, Mr Warren Drew, who Ms Clough had engaged to deal with the Landing 5 access issue. Mr Drew was not at home, but Mr Breen obtained Mr Drew’s telephone number from Mr Drew’s girlfriend at Mr Drew’s property. Over the telephone Mr Breen arranged to meet Mr Drew at Lot 118 and Lot 116.

110. [121]

     According to Mr Drew, Mr Breen threatened him on this occasion and warned him against replacing the locks to Landing 5. According to Mr Breen, he warned Mr Drew against replacing the locks to Landing 5 and Mr Drew agreed to provide him with locksmith services the following day. Mr Drew did not attend the following day. The differing versions are discussed below.

111. [122]

     The Court accepts Mr Drew’s evidence, which is decisive in relation to this incident. Mr Drew’s account is as follows. He says that in May 2018 at the request of Mr Rose he attended Lot 116 and cut and gave Mr Rose the keys for the gate at Landing 5. He heard little more about issues at Lot 118 and Lot 116 until what he calls “early 2020”. The Court infers that he became re-involved at the site in the third week of March 2020.

112. [123]

     At that time Mr Drew’s girlfriend informed him that Mr Breen had come to Mr Drew’s private home address seeking Mr Drew’s mobile telephone number. Mr Drew’s girlfriend gave Mr Breen the number. Mr Drew was most concerned that Mr Breen had come to his private residence and spoken to his girlfriend. Mr Breen used the number that Mr Drew’s girlfriend had given to him to call Mr Drew. They arranged to meet soon afterwards.

113. [124]

     In Mr Breen’s version of these events, he explained that he searched the ABN registration number for “Applied Locksmiths”, Mr Drew’s tradename and could only find a home address and telephone number so he attended at the home. He clarifies that Mr Drew’s girlfriend did not open the door, partly because she was under Covid 19 quarantine. Mr Breen’s version concedes that in his encounter with Mr Drew, he mentioned the possibility of taking legal action against Mr Drew. But where Mr Breen and Mr Drew’s versions diverge the Court accepts Mr Drew’s version.

114. [125]

     They ultimately met on the driveway of Lot 118. Mr Breen explained to Mr Drew that he was the next-door neighbour of Ms Clough and that he was aware that Mr Drew had cut keys to the timber door of the Lot 118 garage and the access gate to Landing 5. According to Mr Drew, in evidence which the Court accepts, Mr Breen then said to him:

115. [126]

     Mr Breen went on to say to Mr Drew:

116. [127]

     Mr Drew says, and the Court accepts, that he found Mr Breen’s statements to him to be intimidating. They were clearly designed to deter Mr Drew from giving any further expert assistance as a locksmith to Ms Clough in relation to Lot 116/Lot 118. Mr Drew says, and the Court accepts, that Mr Breen was standing over Mr Drew when Mr Breen was speaking to him. Mr Breen is bulky, and his person may naturally be intimidating to someone of lesser size or stature. In the Court’s view Mr Breen was conscious that Mr Drew was discomfited by Mr Breen’s size and aggressive manner and used that to his advantage in his encounter with Mr Drew.

117. [128]

     Mr Drew says that overall, he did not feel physically threatened by Mr Breen but was nevertheless “very concerned” that he might be reported to the police about what he had done on Lot 116 and Lot 118. The Court accepts Mr Drew’s evidence that “I felt very uncomfortable in the situation”. Mr Drew says that he believed what Mr Breen was saying to him about the consequences of his work and thought that what he had done under Ms Clough’s instructions could have a damaging effect on his business as a locksmith. What Mr Breen said to Mr Drew in that respect was a misleading exaggeration.

118. [129]

     Mr Breen’s conversation with Mr Drew include statements that Mr Rose had been “stalking Ms Dillon”. Ms Dillon’s evidence about aspects of Mr Rose’s conduct is accepted. But Mr Breen’s reaction here to Mr Rose’s conduct was excessive. Mr Breen stated to Mr Drew that he had a Supreme Court order saying that he could change the locks and block Ms Clough’s access, which was the supposed basis for his threats of legal action against Mr Drew should he attempt to change the locks at Ms Clough’s request. At the date of this conversation, no order of the Court clearly gave Mr Breen that authority.

119. [130]

     Mr Breen threatened Mr Drew with the possibility of him being “charged with break and enter” because he had changed the locks back in 2018. Mr Breen then sought to subvert the relationship between Mr Drew and Ms Clough by asking Mr Drew if he would replace the superglued lock on the timber door with a handle that locks and does not permit access with a key, to stop Ms Clough and Mr Rose from accessing that area.

120. [131]

     Mr Drew had fears beyond damage to his business. Mr Drew remained fearful and concerned for his family that “this man” (Mr Breen) might be “turning up on his doorstep” again. Mr Drew was genuinely mystified at Mr Breen’s conduct in seeking out information about Mr Drew’s private home address and turning up on his doorstep and interrogating his girlfriend when he was not home. Mr Drew had clearly been ruminating about the odd and intrusive behaviour to which Mr Breen had subjected him, saying of these circumstances, “I’ve never, ever had anybody come to my front door, and knocking on my front door like that, ever.”

121. [132]

     Mr Breen’s interaction with Mr Drew on this occasion reveals much about Mr Breen’s approach to people who he perceives are obstacles to his objectives. And it gives insight to Mr Breen’s dealings with Ms Clough. To Mr Breen matters such as Mr Drew’s privacy, or the objective expectation that Mr Drew would be discomfited by being tracked down at home, or Mr Drew’s likely sensitivity about his girlfriend being interrogated at their front door when Mr Drew was not at home, were all swept away in the face of Mr Breen’s single-minded determination to prevent Mr Drew working on the Landing 5 locks. The Court’s findings here about this interaction are one reason the Court decided in August 2022 to construct an interlocutory working regime for these parties.

122. [133]

     About a day after these events, Mr Rose telephoned Mr Drew. Mr Rose explained that Mr Breen had locked the access to one of the landing gates in the timber door to his garage and requested that Mr Drew “come and fix it up so we can get access?”. But Mr Drew had been sufficiently intimidated by what Mr Breen had said to him and responded to Mr Rose in the following way:

123. [134]

     Mr Rose reassured Mr Drew that Mr Breen could not threaten him and that he would not be subject to police action for changing the locks. Ms Clough sought to neutralise the misinformation that had come from Mr Breen about Mr Drew’s rights to work on the access to Landing 5 through Easement E. She showed him the easement documents and a copy of the 2017 judgment and explained her rights to him. He then appreciated that she did have a right of access and he was happy to give her the keys to the Landing 5 gate and replace the timber locked door. They then went together into the police station. But the police concluded it was a civil matter and declined to be involved any further.

124. [135]

     This incident amounted to a substantial interference with Ms Clough’s rights in relation to her access to the inclinator at Landing 5. She has rights of access (Easement E) over the passageway from Moons Avenue through the garage of Lot 118 to the Landing 5 white gate. Mr Breen’s conduct in intercepting Mr Drew had the effect of imposing a cost on Ms Clough of exercising that right, namely having to persuade Mr Drew to perform work to enable her access, which she was entitled to have performed.

125. [136]

     Understandably Mr Breen and Ms Dillon feel sensitive about access to their private garage area by Ms Clough and Mr Rose, given the hostility that has developed between the two couples. But this does not excuse Mr Breen’s conduct on this occasion deterring Ms Clough from taking reasonable steps to engage a locksmith to exercise her rights of access.

126. [137]

     These events at least temporarily exhausted Ms Clough from handling relations with her neighbours directly. In consultation with Mr Rose, she decided to bring the proceedings against Mr Breen and Ms Dillon that resulted in an application to Rees J and another judgment in May 2020.

127. [138]

     This incident amounted to a substantial interference with Ms Clough’s rights to access Landing 5 through Easement E, which conferred upon her rights equivalent to a Part 14 – Right of Access at that level. Mr Breen’s submissions doubt whether this claim is one which might entitle Ms Clough to damages. The Court has yet to hear submissions about whether damages should be awarded. But a recognised form of substantial interference with the dominant tenement owner’s rights under an easement is adding a cost to the exercise of those rights. That is what Mr Breen did on this occasion to Ms Clough by making her fearful of calling any tradespeople to her property, lest they be subject to the same threatening conduct.

128. [139]

     (5) 18 December 2020 – The Front Door Incident. The key to this incident is the location of the inclinator call button for Landing 1. To access Landing 1 of the inclinator from Ms Clough’s house, one exits Ms Clough’s front door, takes a few steps across Lot 116 towards the boundary and passes through the boundary gate, designated in some of the inclinator related documents as a “friendly gate” onto Lot 118, where one must then turn 180° back towards Ms Clough’s house to enter the inclinator at Landing 1. Access back the other way from Lot 118 into Lot 116 is discouraged by the “No Entry” sign that Ms Clough has placed on the friendly gate facing into Lot 118.

129. [140]

     The front door incident on 18 December 2020 did not involve direct contact between Ms Clough and Mr Breen. Nor did Ms Clough witness this incident. But her CCTV footage for that day shows Mr Breen walking through the friendly gate from Lot 118 onto Lot 116, where he pressed the inclinator call button. Then a few minutes later he walked back through the friendly gate upstairs to the same level as Landing 2 and went inside the residence on Lot 118 at the Landing 2 level, close to the Lot 118 residence’s rumpus room.

130. [141]

     Ms Clough complains that Mr Breen’s entry onto her private property to access the call button at Landing 1 was unnecessary, because he could have called the inclinator to Landing 2 from the call button at that landing.

131. [142]

     The Court has reviewed video footage of this incident which is exhibit CMC 6 to Ms Clough’s affidavit of 7 July 2021. Although some of the lines of sight are obscured the footage appears to show that Mr Breen is on Lot 116 within the line of sight of the camera near Ms Clough’s front door for less than five seconds. The Court is only dealing with this one incident and will only make findings about one incident. But given Mr Breen’s and Ms Dillon’s assertions of their rights to access this call button, some usage on other unspecified occasions may perhaps have occurred but that is not part of the present assessment. Ms Clough herself said in cross-examination, “I don’t know if he’s done it [at] other times” and agreed that there was “only one incident”, although she remembered a tradesman using that call button “some year before” but she “took no particular notice of [that] at the time”.

132. [143]

     Mr Breen responds broadly to Ms Clough’s allegations about the Landing 1 call button. He first contests whether Ms Clough had moved this Landing 1 call button onto Lot 116 in the past. The Court does not have to decide this past dispute which was agitated before Darke J. The present location of the call button and the configuration of Landing 1 are the starting point for present analysis.

133. [144]

     Mr Breen does not contest that he entered Ms Clough’s property on this occasion in December 2020 as depicted on the CCTV video footage. But he says that it is impossible for him, for members of his family, and for maintenance personnel, to call the lift to Landing 1 from any point other than the call station located adjacent to Ms Clough’s front door. He says that, as with the garden gate and Landing 4, he is entitled to go onto Lot 116 as the only practical way to exercise his Easement A rights. Moreover, he says he needs a key to the friendly gate.

134. [145]

     Mr Breen is critical of Ms Clough for not installing a landing access on her side at Landing 1. But even if that were done, it would not solve the present issue arising from the location of the call button.

135. [146]

     Mr Breen also gives the impression that he regards Ms Clough’s use of Lot 118 to access the Landing 1 entrance to the inclinator, as a matter of grace and favour on his part. But as Ms Clough points out, Easement B extends this far giving her the right to enter onto Lot 118 at this point to enter the inclinator. The survey evidence about the positioning of the friendly gate is slightly unclear, but even if Ms Clough did not have the benefit of Easement B right up to the friendly gate, in order to access Easement B and get onto the inclinator Ms Clough would nevertheless probably have the same kind of rights of access over Lot 118, which were “reasonably necessary” under Part 14 – Rights of Access, clause 1 for her to enjoy her Easement B rights as the Court has found that Mr Breen and Ms Dillon have to access Easement A. But it is not necessary to determine this issue in this judgment.

136. [147]

     Ms Clough contends that Mr Breen has control of the inclinator from other landings and that he does not have to use the call button on Lot 116 at Ms Clough’s door. She uses the CCTV footage, showing Mr Breen walking up to the level of the residence on Lot 118 near Landing two, as an example of her argument. She says that people on Lot 118 can call the inclinator to Landing 1 by using one of the other landings, especially the most proximate one at Landing 2. She says that Mr Breen does not need to access the call button on Landing 1 for maintenance purposes, because she has arranged for that under a service contract.

137. [148]

     Ms Clough’s argument is not persuasive. The Court’s analysis of the Lot 118 owners’ rights under the s 88B instrument, will allow them to enter Lot 116 outside the site of the easement for purposes “reasonably necessary” for exercising the Lot 118 owner’s rights. The very narrow stairway on Lot 118 between the Lot 118 residence and the boundary fence, means that when someone on Lot 118 is down at the Landing 1 level it is not convenient to summon the inclinator by going up to Landing 2. This inconvenience would also apply to tradespeople undertaking work on the Lot 118 swimming pool.

138. [149]

     Ms Clough points out that the CCTV shows Mr Breen walking up to Landing 2 on this occasion, which she says demonstrates that he did not really need the inclinator to go to Landing 1, illustrating her point that the Lot 118 owner does not generally need to access her call button at Landing 1. But there is quite a long pause in the CCTV video footage before Mr Breen goes rather awkwardly up the stairs to Landing 2. Contrary to Ms Clough’s contention, the CCTV video footage tends to show that using Landing 2 to call the inclinator to Landing 1 would often be quite inconvenient for Lot 118, and entry into Lot 116 to access the call button is likely to be often “reasonably necessary” for the exercise of Lot 118’s Easement A rights, partly because of the narrowness of the stairway between Landing 1 and Landing 2 on Lot 118.

139. [150]

     In the result the Court finds Mr Breen did not trespass on Ms Clough’s Lot 116 on 18 December 2020 by accessing the call button next to her front door because his action was authorised by Easement A. Mr Breen did not dwell upon Lot 116 for more than a few seconds, a time consistent with his stated purpose in doing so. The Court does not have to make a special order about keys to the friendly gate, which should remain unlocked as it has been in the past for the convenience of both parties.

140. [151]

     The Court’s findings about the Landing 1 call button incident suggest the parties could consider cooperating to ascertain: whether the call button on Landing 1 can be moved to a more neutral location and whether the stairs on Lot 118 between Landing 1 and Landing 2 can be widened in conformity with safety regulations concerning the width of travel of the inclinator.

141. [152]

     (6) 16 March 2021 – The Landing 4 Blockage Incident. On 16 March 2021 a workman attended on Lot 118 and began working on the timber deck on that property at Landing 4. Ms Clough says that from about 11:30am her access to Easement B was blocked, preventing access to and from Moons Avenue, the storeroom level, and her garage by means of the stairs on Lot 118. There is direct video evidence of several of the incidents but not this one. Ms Clough says that she did have digital evidence, but it was corrupted whilst in storage. But the Court accepts that Ms Clough was able to work from diary notes, some still photographs, and her own recollection of these events. The indirect video footage of the workman in question is not very helpful.

142. [153]

     The Court accepts that on the day in question about 11:30am a worker that Mr Breen and Ms Dillon retained attended at their home and began to work on the timber deck adjacent to Landing 4 on Lot 118. Ms Clough claims that the worker blocked access to and from Landing 4 and Easement B where it meets Landing 4 on the Lot 118 side. She says that a pot plant was put across Easement B at that location and a piece of wood had been rested in place to protrude into the inclinator corridor, diminishing the travel clearance for the inclinator car. Ms Clough does not say that the inclinator could not travel because of the protruding timber but she infers that there might have been a safety issue had the inclinator been used in the vicinity of the wood protruding into the inclinator corridor.

143. [154]

     Ms Clough says the effect of blocking the Easement B stairs at Landing 4 meant that the right of access to the stairs beyond Landing 4 leading up to the storeroom, the Lot 116 garage and Moons Avenue were all blocked. She says the blockage remained in place until about 4pm that day. Ms Clough says that on 13 occasions that day the worker on Lot 118 called or used the inclinator, with the result that Ms Clough had no access to the storeroom, the garage or the street because the inclinator was in use and the steps were blocked. Ms Clough also complains that neither Mr Breen nor Ms Dillon notified her of the works they intended to carry out, to allow her to assess and plan for the impact that the works were lucky to have on her access.

144. [155]

     Mr Breen can give little evidence about this incident because he was not present, nor was Ms Dillon. But under cross-examination, Ms Clough’s recollection of this incident was quite sketchy. She was convinced that she could not move the pot plant because of its size, and that can be accepted. It can also be accepted that the worker was not present on the site every time that Ms Clough was observing it. But had she wanted to use the stairs on Easement B she could have asked the worker to move the pot plant to give her access. Moreover, there appears in the contemporaneous photographs to be ways that Ms Clough could have deviated onto Lot 118 away from Easement B because of the obstruction and then to return to Easement B further up the lot. On the Court’s construction of the Part 14 Right of Access below such a deviation from Easement B would be permissible if Ms Clough needed to use the stairs.

145. [156]

     But there is a real question as to whether she needed to use the stairs at all. Her own evidence makes it clear that the inclinator could be used notwithstanding the placement of the wood plank. She said in cross-examination, “I think I rode up on the inclinator at one stage” that day. Ms Clough’s case on this incident does not establish that she needed to use the stairs for an identifiable purpose that could not be satisfied by using the inclinator.

146. [157]

     It is difficult to see that Ms Clough was inconvenienced at all by this incident. When the Court directly put to her the question of what inconvenience she had suffered that day, she said, “not all day no” and that there was one time when Mr Breen and the workers monopolised the decking and the inclinator corridor when, “I was unable to use the inclinator and I was unable to use the stairs”. But on her own evidence this was a very brief period.

147. [158]

     There was no substantial interference with Ms Clough’s rights in Easement A or Easement B in this incident. No nuisance is made out. There is also a suggestion in the submissions that a workman trespassed onto Ms Clough’s land in this incident. The Court is not satisfied that this occurred.

148. [159]

     (7) 29 November 2021 – The LAN Cable Incident. On 26 November 2021 Mr Breen’s solicitor contacted Ms Clough’s solicitor and requested Ms Clough to leave a key to the garden gate for Mr Breen and Ms Dillon so that they could install a conduit down the inclinator rail for their LAN cable during the following week.

149. [160]

     The same day Ms Clough’s solicitor responded contending that a LAN cable was not a domestic service within the terms of the easement and that she would not provide a key and that Ms Clough did not consent to the owners of Lot 118 laying a conduit for the purposes of a LAN connection. On 29 November 2021 tradesmen engaged by Mr Breen commenced the foreshadowed works. In doing so they accessed Ms Clough’s land despite her objections. Ms Clough approached the men and asked them to leave. They did so eventually, removing the cabling.

150. [161]

     The Court will not consider the merits of whether Mr Breen was entitled to lay the LAN cable, or component parts of it in the inclinator corridor in relation to this incident. The Court’s decision of December 2022 indicates that some cabling is permissible when it supplies “domestic services” that fall within the Easement for Services. The parties have not had an opportunity to put submissions in relation to this LAN cabling with the benefit of that decision. But findings about what happened between the parties can nevertheless be made.

151. [162]

     From the time of the electricians arrived to install the table at about 10:30am on 29 November 2021, Ms Clough, Mr Rose, and Mr Breen engaged throughout the day in an undignified aggressive melee that does none of them any credit. Mr Rose was physically aggressive towards Mr Breen pushing him in an unacceptable way, showing he is quite capable of such conduct and confirming the evidence that Ms Dillon has given that she is intimidated by him.

152. [163]

     At one point the police were called in what was a potential waste of public resources. The incident demonstrated both sides are prepared to escalate events and then call the police when they get out of hand, treating the police as an on call private security service. Mr Breen kept asserting his rights and not taking a backward step at any point. The Court’s findings in relation to this incident are rather like those that relate to the first incident above that occurred on 21 May 2018. The conduct on both sides was so aggressive and so lacking in proportionality and any sense of stepping back from dangerous confrontation that the Court cannot extricate either party from blame as to what happened.

153. [164]

     The essential allegation in relation to this incident was that Mr Breen, or various trades people stepped onto Ms Clough’s land outside Easement A and committed a trespass. The Court will not make any findings about whether a trespass was committed on this occasion. Mr Rose’s conduct was so aggressive that day that anything Mr Breen did, or the trades people did, should be characterised as a product of the chaos created in part by Ms Clough and Mr Rose. Once again, these senior adults were behaving in a way that they would rightly condemn in children. Ms Dillon escapes these comments because she was not there that day.

154. [165]

     (8) 23 December 2021 – The Incident After Ball J’s Orders. In brief, on 21 December 2021 Ball J made orders by consent to the effect that Mr Breen and Ms Dillon would be permitted to install a conduit and data cable for their house to the garage and in doing so to access the easement, including the entire area between the easement and the common fence about 1 metre from the Easement A corridor on the other side up to Landing 4.

155. [166]

     On 23 December 2021 contractors engaged by Mr Breen arrived about 8am. Mr Breen shut down the inclinator. Ms Clough claims that he did not give her notice and that she was unable to use the inclinator for the day. Ms Clough claims that the CCTV footage indicates that the contractors passed across the land which Ms Clough says was outside the area permitted under Ball J’s orders.

156. [167]

     The detail of this incident is as follows. Mr Breen and Ms Dillon filed a motion in these proceedings on 14 December 2021 seeking removal of the padlock on the garden gate so that conduit cabling could be installed down the inclinator corridor, using the garden gate as access. Ms Clough opposed the motion on the same basis that she has articulated in these proceedings: that to use the garden gate would result in an impermissible trespass upon Lot 116. Ball J was the Duty Judge hearing the matter. The issue ultimately resolved by consent with the following orders being made allowing part of Lot 116 to be used for access commencing on 23 December 2021:

157. [168]

     But according to Ms Clough the day did not unfold the way that she had anticipated after consenting to the orders in the duty list. She says that Mr Breen’s contractors arrived at about 8am and that Mr Breen immediately shut down the inclinator without further notice to her and without advising her that the workmen were about to start. She says she was unable to access the inclinator all day, which was of particular concern because her elderly father may need to be taken up to Moons Avenue in the event he needed medical care.

158. [169]

     There is a conflict in the testimony on this issue. Ms Clough says that although the workmen indicated that they were intending to stay within the area defined within Ball J’s orders that is not what happened. CCTV footage shows that the workmen not only worked outside the agreed area, but they used the stairs on Lot 116, above Landing 4 that are well into Lot 116 and are not even close to the easement corridor, and certainly not within 1 metre. The Court has reviewed the video footage for this incident and Ms Clough’s summary of it is correct. It shows the electricians after apparently concluding that they could not pass between the inclinator corridor and the garden gate in accordance with the Courts orders, they decided to use the made pathway on Ms Clough’s property, beyond the far side of the inclinator corridor, as a more convenient means of accessing the inclinator corridor.

159. [170]

     What happened was not an acceptable implementation by the Lot 118 owners of the Court’s orders of 21 December 2021. The video evidence clearly shows the workmen going beyond the agreed area in the orders, apparently because, as Mr Breen explained “the electricians could not physically pass between the inclinator and the fence, so they stepped to the left”. But that outcome could and should have been anticipated with reasonable foresight on the part of the Lot 118 owners. It was up to the Lot 118 owners to make their own enquiries about what was practicable and then only propose and agree to a regime with which they knew that their own workers could comply. The Court orders were specific, and Ms Clough was entitled to have them specifically observed.

160. [171]

     The other related conflict on this incident is the time at which the site became available to Ms Clough. Mr Breen says that the work had finished by 10:30am. On this issue the Court accepts Mr Breen’s evidence. It is difficult to accept that the laying of an electrical conduit, which was only one part of a larger job, would itself take all day.

161. [172]

     The question remains whether it was “reasonably necessary” for the doing of this work for the Lot 118 owners to have access on the far side of the inclinator corridor. Were there no Court orders, reasonable necessity would be arguable because the trespass visible on the video, seems only to have been for a short period. But the Lot 118 owners’ express consent to the 21 December orders represents its own agreed standard as to what was “reasonably necessary” for the doing of this work and going beyond that standard was unlikely to be “reasonably necessary”. If Lot 118 owners wanted more space to conduct this work on this occasion, they should have asked for it and agreed to something with which they were able to comply.

162. [173]

     Questions of contempt of Court should be left to one side. Mrs Clough has elected to treat this as a matter of trespass and damages. In the Court’s view this was a trespass on Mrs Clough’s land, because the Court’s order was to put beyond doubt what was permissible and what was not permissible on Lot 116 to avoid conflict. The Lot 118 owners showed no obvious constraint on their contractors to stay within the Court’s orders. The evidence lacks any attempt by Mr Breen to show how he sought to control these contractors, so that they would operate only within the limits of the Court’s orders. Rather the Court’s orders seem to have been treated as a platform to gain entry to Lot 116, and once there to carry out the work however they wanted, rather than by strict observance of the Court’s orders.

163. [174]

     The Court will hear submissions about damages issues in relation to this incident.

Legal Analysis – The Claim

1. [175]

   In summary, Ms Clough’s claim concerns three broad categories of dispute arising out of the Court’s factual findings:

   1. (1)

      Whether Mr Breen and Ms Dillon (or their agents) have, on the various occasions alleged in the incidents above, committed trespass to her property, caused nuisance and breached the terms of the relevant easements;

   2. (2)

      Whether Mr Breen’s use of the Inclinator for the transportation of tools and equipment was “in aid of a construction business” and if so whether that is a “reasonable use of the Inclinator”; and

   3. (3)

      The CCTV Issue: whether a CCTV camera installed by Mr Breen and Ms Dillon on the wall of the storeroom, is in fact on Ms Clough’s private property, whether it constitutes a trespass and should be removed.

2. [176]

   Dispute category (3) was resolved in the December 2022 judgment. Dispute categories (1) and (2) are resolved here based on the Court’s factual narrative above.

3. [177]

   During the proceedings, as has been summarised above, the Court proposed and then made orders for a temporary regime governing the day-to-day relationship between the parties to de-escalate their tensions. The parties also debated whether pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (“UCPR”), the Court should order that the following legal questions be determined separately from all other questions in the proceedings:

4. [178]

   But in the end the Court decided there was no need for these legal questions to be determined separately under UCPR r 28.2 as no utility would be served by seeking to appeal with respect to those matters before the balance of the proceedings were determined. But resolution of some of these legal issues nevertheless provide a suitable framework for the determination of the issues between the parties to be decided in this judgment. Issue (i) is dealt with below. Issue (ii) is dealt with in relation to the cross-claim. Issue (iii), as indicated, was resolved in the December 2022 judgment. Issue (iv) is dealt with below. Issue (v) is dealt with while dealing with the other issues.

5. [179]

   The determination of the remaining legal questions involves close analysis of the s 88B instrument, to which these reasons now turn. After that legal analysis these reasons determine whether the various causes of action in nuisance or trespass have been made out.

6. [180]

   Because Easement A is in an instrument registered in respect of land held under the Real Property Act 1900, it must be construed in conformity with the principles stated in Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 (‘Westfield’). Those principles require the construction task to be undertaken by reference to the terms of the instrument itself and not material outside the Register but that does not rule out from consideration evidence of the physical characteristics of the land: Sertari Pty Ltd v Narimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 at [15]; Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [15] – [18]. Darke J’s judgment and this judgment refer to the physical characteristics of Lot 116 and Lot 118. And it is to be remembered that the inclinator was already in place when the s 88B instrument was registered.

7. [181]

   In this case, in the task of construction the Court draws upon the terms of the easements described in the s 88B instrument, including the Deposited Plan described in the text of the easements and in places the physical characteristics of the land. But in conformity with Westfield the Court puts aside any other source of evidence in relation to the task of construction.

8. [182]

   Mr O’Connor argues that Easement A does not entitle the Lot 118 owner to have any passage over any part of Lot 116 that is not within the Easement A inclinator corridor. Mr O’Connor argues from the text of Schedule 8, Part 14 – Right of Access that: it is not necessary to repeat the words “only within the site of this easement” in clause 1(b), because they were clearly stated in clause 1(a) and should be applied to the words “the lot burdened”, wherever they appear. This has the consequence that rights over “the lot burdened” will always be interpreted as being exercisable “only within the site of this easement”. Mr O’Connor submits that the operation of clause 1(b) is linked to and limited to doing anything necessary “for that purpose”, that purpose being limited to activity defined in clause 1(a), as “only within the site of this easement”.

9. [183]

   Despite Mr O’Connor’s effective and detailed exposition of this argument, the Court has reached a different conclusion and is more persuaded by the Lot 118 owners’ argument put by Mr Maghami. It is useful for the Court to set out its own interpretation of the Right of Access in Easement A and at the same time to deal with Ms Clough’s arguments.

10. [184]

    The construction of Easement A requires analysis of its elements. Easement A is a composite of three sources of obligation, each of which relates to a different functional element of Easement A.

11. [185]

    First, Easement A is comprised of a Right of Access to the lot benefited over the lot burdened, the wording of which is derived from Conveyancing Act, s181A, and Schedule 8, Part 14 – Right of Access. This element defines the general access rights of the Lot 118 owner over Lot 116 but without specific reference to the function of the inclinator. As is provided in Conveyancing Act, s 181A (3), the wording of Schedule 8, Part 14 – Right of Access may be varied by the terms of an instrument, in this case the s 88B instrument. This element shall generally be referred to in these reasons as the Part 14 – Right of Access.

12. [186]

    Secondly, the Right of Access (Inclinator) set out in Part 2, Item 1 of the s 88B instrument defines the rights and obligations of the Lot 118 owner and the Lot 116 owner with respect to the maintenance, upkeep, cost, and legal obligations arising from the use of the inclinator. This element does not deal with the general rights of access over the inclinator corridor, but it assumes the existence of the mechanical inclinator erected substantially on Lot 116 and the general function of this element is to support the safe and efficient operation of that infrastructure on the Lot 116. It clearly assumes that the Part 14 – Right of Access is modified to a degree by this Right of Access (Inclinator).

13. [187]

    Thirdly, Easement A is comprised of an Easement for Services, which defines the rights of the lot benefited to use the lot burdened to provide “domestic services” to the lot benefited. It is closely modelled on wording derived from Conveyancing Act, s181A, and Schedule 8, Part 11 – Easement for Services. The Court has already discussed the proper construction of this third element in its December 2022 judgment.

14. [188]

    Each of these three elements must be construed together, although they govern different functional aspects of rights of Lot 118 over the inclinator corridor. There is little conflict in the language of the three elements. As counsel for the parties readily and correctly acknowledged, the general construction of Easement A can only go so far. Because the text of Easement A in each of its three elements pivots around words such as “any reasonable means” and “anything recement necessary”, what Easement A permits or prohibits, will always be very situation specific. Here the Court’s findings above in relation to the eight incidents illustrate such situations, to which the Court applies Easement A. But some general observations can usefully be made here about the construction of Easement A and how it is likely to operate in the topography of Lot 116 and Lot 118.

15. [189]

    The principal focus of the parties’ contest about Easement A is the first element, Part 14 – Right of Access 1(a). This provision clearly requires ordinary passage “across each lot burdened” to be “only within the site of this easement” and must only be for the objective, “to get to or from the lot benefited”. For the owners of Lot 118 that means, for example, that ordinary travel along the inclinator corridor cannot for example be used for a collateral purpose such as occupying part of Lot 116 but must only be to get “to or from” Lot 118.

16. [190]

    And while travelling to and from Lot 118 the Lot 118 owners must “pass across” the lot burdened “only within the site of this easement”. But the inclinator corridor provided for in the s 88B instrument for the Part 14 – Right of Access is narrow, being no more than 1 m wide. And on the ground within that 1 metre are concrete pylon fixtures supporting the steel rail on which the inclinator car runs. Therefore, as a practical matter passage using “any reasonable means” to pass across the lot burdened will ordinarily mean passage within the inclinator car. Part 14 – Right of Access 1(a) does not prohibit access on foot. But the inclinator corridor is narrow, being no more than 1 m wide anywhere and in some places less.

17. [191]

    The language of Part 14 – Right of Access is not consistent with the idea that everything that the owner of the lot benefited may do on the lot burdened must happen “only within the site of this easement”. Clause 1(a) uses different language to qualify activity by the benefited owner on “the lot burdened” from clause 1(b) and clause 2. Only clause 1(a) attaches the qualifying words “but only within the site of this easement” to the expression “the lot burdened”. It does so when the activity is “by any reasonable means” to “pass across each lot burdened” insisting that this activity be “only within the site of this easement”. The expression “the site of this easement” refers to what in these reasons has been described as the inclinator corridor of Easement A.

18. [192]

    But elsewhere in clause 1(b) and clause 2, the same expression “the lot burdened” mostly appears without the qualification “only within the site of this easement” and is used where it cannot mean only that part of “the lot burdened” that is “within the site of this easement”. For example, in clause 2(b) the requirement to cause “as little inconvenience as is practicable” to “the owner and occupier of the lot burdened” can only sensibly mean the owner and occupier of the whole of Lot 116. In the context of minimising inconvenience, it makes no sense to speak of the “owner and any occupier” merely of “the site of this easement”. If the expression “the lot burdened” in clause 2(b) means the whole of Lot 116, then it should have the same meaning wherever used throughout clauses 1 and 2, which it clearly does not.

19. [193]

    Such a construction allows Part 14 – Right of Access clauses 1 and 2 to work harmoniously in a satisfactory scheme. The key linkage between clause 1(a) and clause 1(b) are the introductory words in clause 1(b) “do anything reasonably necessary for that purpose” (emphasis added). The clause 1(b) “purpose” is the activity described in clause 1(a), which is limited to passage “within the site of this easement”. The ancillary licence conferred by clause 1(b) for “that purpose” is limited by the words “anything reasonably necessary”, an expression which can admit of activity broader in scope than “that purpose”, provided it is “reasonably necessary”.

20. [194]

    The activities described by the words in clause 1(b), construed in their ordinary meaning, are broad enough to encompass a range of activity on Lot 116 outside the site of the easement. But the critical limiting factor is always that that the activity in question must be “reasonably necessary” for the clause 1(a) purpose. This limiting factor is designed to prevent unreasonable impacts upon the owner of Lot 116 through activity outside the site of the easement.

21. [195]

    The wording of clause 1(b) provides a non-exhaustive list of examples of doing “anything reasonably necessary for that purpose”. After the word “including” in clause 1(b) the three bullet-pointed sub-clauses of clause 1(b), joined by the conjunction “and”, could be read either cumulatively or disjunctively, depending on the circumstances. But read either way, like clause 2, they strongly contrast in their wording with clause 1(a). The first two bullet points describe impacts, “to the lot burdened”, meaning the whole of Lot 116. The final bullet point describes the carrying out work “within the site of the easement”.

22. [196]

    In a cumulative interpretation of these clauses, the benefited owner could “enter” or “take anything on to” “the lot burdened” outside the site of the easement and then carry out construction “work within the site of this easement” using the materials brought onto the site. For example, because the inclinator corridor is no more than a metre wide, the s 88B instrument contemplated that lengthy materials such as replacement inclinator rails may have been difficult to bring onto the lot burdened during inclinator repair, wholly “within the site of this easement”. It makes sense in an easement as narrow as Easement A for flexibility to be provided. The physical characteristics of the land strengthen this interpretation. The steep topography of Lot 116, especially between Landings 4 and 5, would render the carrying out of most kinds of work wholly “within the site of this easement” almost physically impossible.

23. [197]

    But this construction of the Part 14 – Right of Access in the s 88B instrument, does not authorise the Lot 118 owner to wander across the whole width of Lot 116 whilst carrying out work within the site of the easement. The authority to enter the lot burdened is strictly limited to what is “reasonably necessary” to further the clause 1 (a) purpose. Any travel across Lot 116 which cannot be justified as reasonably necessary for carrying out work within the site of the easement is not permissible. Mr Breen’s conduct associated with work on the site of the easement is to be assessed according to this standard.

24. [198]

    In a disjunctive interpretation of the three bullet-pointed sub-clauses of clause 1(b), the owner of the lot benefited could be “entering the lot burdened” or “taking anything onto the lot burdened”, if that activity was “reasonably necessary” for the purpose described in clause 1 (a), without any necessary association with “carrying out work within the site of this easement”.

25. [199]

    The relationship shown in the Plan in the s 88B instrument between the easement corridor of Easement A and the boundary line of Lot 116 and Lot 118 shows just why “entering the lot burdened” may be “reasonably necessary” to enjoyment of the rights conferred by clause 1 (a). Landing 4 would be unusable by Lot 118 unless the owner of Lot 118 was permitted to step into the inclinator across the half metre of Lot 116 between the boundary and the easement corridor. Such an unreasonable result cannot be attributed to the drafting of the s 88B instrument. The first bullet point of the clause 1(b) subclauses “entering the lot burdened” should be construed as allowing entry into Lot 116 outside the site of the easement.

26. [200]

    Mr O’Connor submitted that Ms Clough was prepared to license Mr Breen and Ms Dillon to use Landing 4 to access the inclinator, even though that was not a strictly permissible form of access to the inclinator corridor on Ms Clough’s construction of Easement A. But the fact that Ms Clough needed to make this concession of a very limited licence to enter Lot 116, though wisely made, really indicated the nature of the difficulty presented by Ms Clough’s construction of Easement A.

27. [201]

    This leads to the related question of whether the garden gate can be used for Lot 118 owners to cross “the lot burdened” for the purposes of access to “the site of this easement”. This will depend upon the circumstances. No landing is constructed at the garden gate to allow access for travel on the inclinator. The Lot 118/Lot116 boundary is about 1 metre from the nearest side of the easement corridor at that point. Like at Landing 4, to have access from the garden gate to Easement A requires crossing Lot 116. Both the distance of that crossing over Lot 116 and the lack of a constructed landing at the garden gate means that “anything reasonably necessary” for the purpose of clause 1(a) at that point is unlikely to be related to travelling on the inclinator. Rather the use of the garden gate is more likely to be authorised by the Part 14 – Right of Access for “carrying out work within the site of this easement”, being work that could not be undertaken by accessing the easement corridor by any other reasonably available means. But once again it depends on the circumstances. For example, if the inclinator malfunctioned and stopped opposite that garden gate, and could not be moved it may well be reasonably necessary to use the garden gate to cross Lot 116 to disembark people from the car.

28. [202]

    The Court’s construction allowing necessary deviations from the defined perimeter of the Right of Access conferred under Easement A will benefit Lot 116 as much as they might burden it. The right of access to the owners of Lot 116 in Easement B, which traverses Lot 118, is granted on the same terms as Easement A and will therefore allow reasonably necessary deviations from the strict path of Easement B.

29. [203]

    The Court’s construction does not involve a substantial departure from common law principles. In some circumstances at general law the dominant tenement owner may have implied rights of access over the servient tenement outside an easement, in order have the benefit of the easement granted: see for example Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd [1970] 1 NSWLR 474 and Bradbrook and Neave’s, Easements and Restrictive Covenants, A.J Bradbrooke and SV MacCallum, Lexis-Nexis Butterworths Australia 2011 (“Bradbrook and Neave”) at [6.41]. And the general law confers limited rights of deviation from a right-of-way that are consistent with the Court’s construction of Easement A. Bradbrook and Neave explain (at 6.43), “a grantee of a right of way has no right of deviation onto another part of the servient tenement, regardless of whether the way becomes impassable through natural causes or through lack of repair”: see Bullard v Harrison (1815) 4 M & S 387; 105 ER 877 (KB). But a right to deviate exists where the obstruction is caused by the grantor: Selby v Nettlefold (1873) LR 9 Ch App 111.

30. [204]

    Finally, Conveyancing Act s 181A (3) allows the operation of the Part 14 – Right of Access in Schedule 8 to be varied by the terms of a s 88B instrument. But there is nothing in the composite of three elements of the obligations in Easement A in the s 88B instrument that is inconsistent with the Court’s construction here. In fact, the functional elements of Easement A, the Right of Access (Inclinator) and Easement for Services are each expressed in the s 88B instrument in very similar terms to Part 14 – Right of Access in Schedule 8.

31. [205]

    Mr Breen and Ms Dillon originally sought to justify their access to the inclinator call switch under the authority of Easement J, which relates to overhanging eaves. But that position was abandoned during final submissions and Mr Maghami’s submissions relied instead upon Easement A for this purpose.

32. [206]

    Therefore, the Court’s analysis of Easement A also provides the analysis for this issue. The short answer is that whether the inclinator call switch at Landing 1 is accessible under Easement A depends on the circumstances in which the Lot 118 owner seeks to access the switch. If that access can be classified as “anything reasonably necessary” for the purpose “by any reasonable means pass across each lot burdened, but only within the site of this easement”, then it may perhaps be permitted.

33. [207]

    The incident in which Mr Breen sought access to the inclinator call switch at Landing 1 discussed above was for such a purpose and was permitted access.

34. [208]

    Now that the proper construction of the s 88B instrument has been explained, it is necessary to apply the legal principles governing Ms Clough’s remaining claims in trespass and nuisance to the Court’s findings in relation to the several incidents that have occurred between the parties.

35. [209]

    Those legal principles may be shortly stated. Obstruction of a dominant tenement owner’s use of a right-of-way or other easement is actionable in nuisance: McDowall v Reynolds [2004] QCA 245. Trespass to land is not available to dominant tenement owners because they do not have possession: Moreland Timber Co v Reid [1946] VLR 237. In this case, the owners of Lot 116 and Lot 118 are dominant tenement owners with respect to different easements in the complex of easements comprised in the s 88B instrument. Ms Clough seeks damages in trespass that relate to Mr Breen’s passage over her land outside the Easement A inclinator corridor.

36. [210]

    It is well established that whether an obstruction to a right-of-way is actionable or not is a question of degree, to be decided in light of the circumstances of each case in which it arises, and in the case of a private right-of-way or similar easement the obstruction is not actionable unless it is a real and substantial interference: Powell v Langdon (1944) 45 SR (NSW) 136, at 139. To be substantial interference, it is not necessary that the interference be physical interference. But any acts or circumstances which create danger, or in any way offer an impediment to the freedom of decision to exercise and continue to exercise of the right of the dominant tenement owner, or impose a risk or cost on doing so, can fall for consideration as substantial interference with the exercise of the right: Prospect County Council v Cross (1990) 21 NSWLR 601 at 610 per Bryson J.

37. [211]

    A person who makes excessive use of a servient tenement in purported exercise of a right-of-way commits a trespass: Milner’s Safe Co Ltd v Great Northern and City Rail Co (1907) 1 Ch. 208 at 229.

38. [212]

    The Court’s conclusions in relation to the eight incidents are that only incidents (2), (3), (4) and (8) lead to the need for any assessment of damages for the reasons discussed above.

39. [213]

    Some of Ms Clough’s claims have been made out. Two kinds of relief come under consideration in relation to Ms Clough’s claim: whether she is entitled to damages in respect of the torts that have been established, and if so, in what quantum; and is it appropriate to grant final relief in the form of a permanent injunction, and if so how should such an injunction be moulded.

40. [214]

    As to the assessment of damages the Court will hear submissions from the parties and will be guided by the quantum of assessment in similar cases. Two factors to be considered in the submissions on whether to award damages against Mr Breen and Ms Dillon on account of their excessive use of Easement A or trespass upon the Lot 116, are (1) Ms Clough’s own unjustified claims of right to prevent Mr Breen and Ms Dillon from entering upon Lot 116, and (2) Mr Rose’s conduct in intimidating Ms Dillon.

41. [215]

    As to the grant of any injunction, the learned authors of Bradbrook and Neave at [18.28] to [18.36] discussed the Court’s broad discretion to grant permanent injunctions for contravention of easements. But the findings in this case as to the past conduct of the parties may also raise personal equities which could ground injunctive relief: see for example Andriopoulos v Marshall (1981) BPR 9391 and Alma v Nakir [1966] 2 NSWR 396.

42. [216]

    But here the parties have as a starting point the benefit of the existing interim regime. A question now arises as to that whether that regime or part of it should remain in place either on a permanent basis or for a fixed period of perhaps between 2 to 5 years between these parties. The interim orders have been in place now for 12 months. The parties have had an adequate opportunity to see how the regime operates. The Court will hear final submissions on whether the whole or part of this regime or some variation of it should be made permanent.

Legal Analysis – The Cross-Claim

1. [217]

   The cross-claim brought by Mr Breen and Ms Dillon raises four broad issues:

   1. (1)

      Issue 1: whether the inclinator has safety issues which, if unresolved, impinge on the parties’ safe enjoyment of the inclinator under the easement;

   2. (2)

      Issue 2: depending on the answer to the first issue, whether orders should be made for the inclinator to be repaired or replaced or whether the Court should appoint its own independent expert to undertake an assessment and make report to the Court on the issue prior to any orders being made;

   3. (3)

      Issue 3: the nature and extent of Mr Breen’s and Ms Dillon’s entitlement to access the easements and the manner of their so doing; and

   4. (4)

      Issue 4: whether, considering the ongoing disputes in relation to the easements and the inclinator, the Court should make orders for a regime of management of the easement sites and the inclinator, as well as binding orders concerning dispute resolution procedures between the parties.

2. [218]

   The Court has not yet dealt with Issues 1 and 2 on the cross-claim. The first of these concerns whether the inclinator has safety implications for the parties. And the second concerns whether the Court should order the repair or replacement of any part of the inclinator and appoint a Court expert to aid that process.

3. [219]

   The parties have yet to present their cases and put submissions in relation to safety issues arising from the Court’s findings or based on further evidence to be considered. But Ms Clough takes a preliminary point that Darke J’s judgment precludes the Court embarking on this subject because it has already been decided in Ms Clough’s favour.

4. [220]

   On this issue Darke J’s judgment, especially at [161], is binding on these parties, who were also the same parties to the 2017 judgment. On this issue Darke J decided a matter on which the parties had put competing submissions. The issue was essential to Darke J’s reasoning to his conclusion in the 2017 judgment, as he declined to entertain a submission that the inclinator should be replaced unless it was part of the “proper maintenance, repair and replacement” required by Easement A.

5. [221]

   On this subject Darke J said the following (at [159] to [163]):

6. [222]

   Darke J’s reasoning (at [161]) in relation to the construction and application of Easement A clause 1(c)(i) creates a binding estoppel on the parties, and because of the parties’ dispute about this subject the Court will make a declaration to that effect.

7. [223]

   But three observations should be made about the scope of this estoppel, to assist the parties to frame their remaining submissions in these proceedings. First, Darke J left open (at [160]) an argument based on common law principles that “improvements [may] become reasonably necessary”. The question is whether these common law principles are displaced by the terms of Easement A clause 1(c)(i). The parties should put future submissions on this matter.

8. [224]

   Secondly, the parties’ submissions have tended to take extreme interpretations of one aspect of Darke J’s reasons, so some clarification is necessary here. Ms Clough’s submissions have suggested that the Court cannot order that the inclinator be replaced and that this issue has been decided against the Lot 118 owners. On the other hand, Mr Breen’s and Ms Dillon’s cross-claim proceeds upon the basis that the Court should proceed directly to appoint an expert engineer to recommend replacement of the inclinator.

9. [225]

   The position is more nuanced than either of these positions. With respect, Darke J is correct (at [161]) that in some circumstances, steps may need to be taken which in fact bring the works up to “current standards”, but it can also be said that the duty to ensure proper maintenance, repair and replacement does not necessarily require the inclinator to be kept up to “current standards”. For example, an aspect of “proper maintenance, repair and replacement” (emphasis added) can involve considerations of replacing obsolete or out of date equipment that brings it closer to current standards.

10. [226]

    Thirdly, Darke J’s judgment at [159] to [163] can only speak to the state of repair of the inclinator the time at which he gave the judgment. These passages from Darke J’s judgment led to his Honour not granting relief for the replacement of the inclinator at that time. But that was almost 6 years ago. Embedded within Easement A clause 1(c)(i) are many indications that it is specific to times and circumstances: it requires the taking of “reasonable and timely steps” to “ensure proper maintenance, repair and replacement” of improvements from “time to time”. A decision about whether replacement could properly be required in 2017 cannot be binding under such a clause in respect of a contest about replacement in 2023. Such a clause could not be sensibly construed as allowing the 2017 decision to forever bind the parties on the issue of replacement of the inclinator car. Circumstances change over time and the application of Easement A clause 1(c)(i) may vary according to those changed circumstances. An outcome on the issue of replacement can only be reached when the technical evidence is presented and considered in the second phase of these proceedings.

11. [227]

    For these reasons, in the next phase of these proceedings Mr Breen and Ms Dillon will be allowed to adduce evidence and put submissions for the replacement of the inclinator car. But in doing so they must adhere to the interpretation of clause 1(c)(i) determined by Darke J and in these reasons.

12. [228]

    Ms Clough argued for wider estoppels than are considered here. But in the Court’s view at this stage of these proceedings this is the only estoppel that constrains the course that the Court should take.

13. [229]

    These two issues on the cross-claim have already been decided during related conclusions on Ms Clough’s principal claim. The nature and extent of Mr Breen’s and Ms Dillon’s entitlement to access Easement A is now clear: they are entitled for limited purposes to go upon Lot 116 outside the inclinator corridor. But the manner of their so doing has now become the subject of specific findings showing how unreasonably from time to time that right has been exercised and how at other times it has been reasonably exercised. This has led to the Court making an early determination in the interim orders of the matters raised by Issue 4. In the August 2022 judgment, the Court made orders that included a regime of management of the inclinator corridor and the inclinator.

14. [230]

    The Court has not made binding orders concerning dispute resolution procedures between these parties, because the acrimonious history between these parties implies that orders involving ordinary mediation would probably be futile. But the Court discusses some other ideas below.

15. [231]

    The parties are not wholly responsible for this conflict. Professional town planning is perhaps more readily noticed when it is missing. Here a substandard subdivision of the headland of Moons Avenue in 1922, sliced the available waterfront into the maximum number of 725 m² blocks. The subdivision occurred well after the mass-marketing of petrol driven motor vehicles, but before electrically driven inclinators were generally available. It is baffling how a 5-metre frontage to Moons Avenue could ever had been thought adequate access for these properties.

16. [232]

    The fan pattern of these adjoining blocks always risked neighbourhood conflict. That it was realised in the conflict in this case comes as no surprise. Were this subdivision undertaken in the modern era, town planners could have imagined far more aesthetic and conflict-free access zones for these properties. Even in the first quarter of the 20th century in many parts of Sydney, waterfront land was being subdivided with more spacious planning than this.

17. [233]

    At one level this historical observation offers no help to the owners of Lot 116 and Lot 118. But their conflict is aggravated by the configuration of these two lots which forces them to live in close physical proximity to one another. In places, this proximity, for example down near Landings 1 and 2, is closer than for the inhabitants of many apartment blocks. Perhaps the parties may begin to see that they have some common ground because they are both suffering the regrettable effects of poor town planning a century ago.

18. [234]

    The Court has an overriding duty to quell this dispute between these parties on a final basis. The Court is prepared to treat the current legal process as available for amendment to achieve that outcome. This section raises options that the parties may wish to consider towards that end. They arise from the Court’s consideration of this contest. To help de-escalate the tensions between these parties, the Court grants general liberty to apply in the orders made if the parties wish to pursue those options. Alternatively, they can be raised during future directions hearings.

19. [235]

    First, the Lot 118/Lot 116 boundary in the space between Landing 1 and Landing 2 is tight. Darke J observed that there is “no doubt” that the boundary fence on the Lot 118 side of the inclinator between Landings 1 and 2 is “awkwardly positioned” inside Lot 118 approximately 20cms from the edge of the stairs: Darke J at [231]. This is still the case, and particularly at the top of the stairs little clearance exists to the corner of the residence on Lot 118. This causes inconvenience to Mr Breen and Ms Dillon in using this part of their property and is likely to aggravate relations between these parties.

20. [236]

    Darke J found (at [232] – [235]) that the construction of the fence and the gates near those landings did not amount to a substantial interference with Mr Breen’s and Ms Dillon’s rights under the inclinator easement, because the easement requires the parties to comply with all laws and legal requirements and the applicable WorkCover notices required the inclinator corridor to have the distances that the current placement of the fencing implies. But Darke J made (at [236]) further observations about the potential relocation of the fence at this location:

21. [237]

    If the permission suggested by Darke J has been sought from SafeWork NSW for the installation of different fences and gates in this area, it has not resulted in any change on the ground that the Court could observe. Each party is at liberty to apply to the Court to facilitate a cooperative approach to SafeWork NSW of the kind envisioned by Darke J.

22. [238]

    Secondly, the Court imposed an interim regime on the parties in the August 2022 judgment. It has not operated perfectly but it was designed to force a degree of cooperation between the parties in their use of the inclinator. But operating the inclinator under those conditions may have given the parties insight into how the inclinator controls might, while discharging the duty of “proper maintenance, repair and replacement”, be incidentally improved to operate to reduce conflict between them. The Court will case manage the remaining contest in these proceedings about whether, because of the present state of the inclinator, in the discharge of the duty of “proper maintenance, repair and replacement” the inclinator car should now either be replaced or upgraded. One issue relevant to its possible replacement or upgrade is whether it has become obsolete in any number of ways, including in its control system.

23. [239]

    Thirdly, it may be possible to vary aspects of Easement A, by agreement. The Court has concluded that the Lot 118 owner may access parts of Lot 116 to exercise Easement A rights for limited purposes, and vice versa. But it may yet be possible to define the limits of such divergence from Easement A more precisely, or to widen Easement A slightly, so that any divergence becomes unnecessary. The parties may wish to consider their respective rights under Conveyancing Act s 88K, although in respect of an existing easement such as Easement A applications under s 88K may be difficult.

24. [240]

    Fourthly, at common law and under Easement A some steps could be taken with appropriately sympathetically placed wooden or stone steps in places to make the inclinator corridor more accessible at the step down and otherwise more passable for the purposes of effecting repairs that are reasonably necessary for the enjoyment of the rights conferred by the easement. If this is done it is likely to reduce arguments for Lot 118 owners to traverse Lot 116 outside the inclinator corridor to effect repairs. If this is to be done the Court may have to decide disputes as to what is reasonable. And in the same context the Lot 116 stepdown could be significantly improved to allow better access into the inclinator corridor. But if such works were done to make the way more passable, Ms Clough would have a stronger argument for saying that any departure outside the inclinator corridor was not “reasonably necessary”.

25. [241]

    Mr Breen and Ms Dillon have rights to enter on Easement A to upgrade parts of the inclinator corridor so that work can be undertaken within the inclinator corridor more readily. Such rights exist under Part 14 – Right of Access clause 1(a) and have analogies at general law: the Courts will imply a right to enter the servient tenement in favour of the grantee unless the grant provides to the contrary: Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343. But when effecting repairs, the grantee must protect the servient tenement from unnecessary injury: Ingram v Morecraft (1863) 33 Beav 49 at 52; 55 ER 284 at 285 ff and see Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74, at [28] - [30].

26. [242]

    Fifthly, relations between these parties have clearly reached the point that they wish to avoid each other as much as possible. Given their long mutual history of antagonism that is understandable. There may yet be ways that are revealed by expert evidence that the Court can consider facilitating them to avoid one another. One possible way of reducing conflict is for the parties each to consider giving up some of their rights against one another, particularly those rights that have generated conflict. For example, if Mr Breen and Ms Dillon gave up their rights to access the button at Landing 1 and Ms Clough’s front door Ms Clough might in exchange limit the exercise of her rights of access to the Landing 5 gate through the interior of Mr Breen’s and Ms Dillon’s garage. Both are places are areas of extreme sensitivity and generate some of the conflicts that have arisen.

27. [243]

    Sixthly, the Court has rejected Mr Breen’s and Ms Dillon’s arguments that the CCTV camera that was placed on Lot 116 could be justified as a “domestic service” within the terms of Easement A and has ordered the removal of the trespassing CCTV camera. But a question arises as to whether the Court could consider the installation of a camera in that area to which both parties might have equal access, which may perhaps be justified based on the Court’s interpretation in these reasons of the terms of the Part 14 – Right of Access, as something “reasonably necessary” for the enjoyment of the right of access within the site of the easement. But the regrettable history of tit-for-tat escalation of actions between these parties in relation to CCTV means that the Court will not countenance the unilateral exercise of any claimed right by Mr Breen and Ms Dillon of this kind. The interim orders after the December 2022 judgment presently regulate this issue adequately. But the Court may possibly consider some joint facility which will assist in generating trust between these parties.

28. [244]

    Seventhly, Mr Breen’s and Ms Dillon’s cross-claim seeks the appointment of an independent Court expert to assess the inclinator and report back to the Court on whether it needs replacement. The strict foundation of any such order is for the Court first to consider the current state of operation of the inclinator car: a matter for evidence. But merely to consider the inclinator car may not be enough to help these parties. The Court would like the parties to consider the possibility of a Court ordered mediation under Civil Procedure Act 2005 s 26 in which the mediator is required to engage an independent architect and engineer with appropriate expertise to see if these easements can be redesigned in a way that allows these parties more personal space from one another. The design of these easements is highly intrusive on each neighbour’s space, intensifying the possibility of conflict. The parties should realise that seeking a solution to their issues is testing the limits of what the legal system can provide. The most transformative solution to their issues is not necessarily one that is legally available and imposed. The creative imagination of architects, landscapers and engineers may be able to conjure up a slightly different built environment in which the parties can find more privacy from one another and suggest a modified inclinator that they want to serve their mutual convenience using the genius of the digital age.

29. [245]

    Finally, Mr Breen and Ms Dillon, Ms Clough and Mr Rose all have admirable personal and educational attainments. In their private moments they must wonder how the beautiful place they share could harbour such an ugly dispute. There is no easy answer to that except perhaps that some conflicts are structural, arising here from a combination of poorly subdivided land and incompatible personalities thrown together by accident. But there are accessible solutions for these parties that mediation can explore. The way out of this destructive spiral can only begin with each person actively trying to build trust by taking small steps to surprise the other with unexpected gestures of courtesy, restraint, and tolerance.

30. [246]

    These reasons leave several matters yet to be determined which the parties should deal with in the balance of these proceedings. These are conveniently listed in order (6) below. There may be others.

31. [247]

    The Court makes the following declarations, orders, and directions:

    1. (1)

       In these orders the following expressions have the following meanings:

    2. (2)

       Easement A - Right of Access. Declare that upon the true construction of the s 88B instrument and in the circumstances required by the physical topography of the site of Easement A the rights of access conferred upon the Lot 118 owner by Easement A entitle the owners of Lot 118 to enter the lot burdened, Lot 116, outside the site of Easement A but only to the extent reasonably necessary for the purpose of the owner of Lot 118 passing across Lot 116 to get to or from Lot 118 within the site of easement A,

    3. (3)

       Declare that upon the true construction of the s 88B instrument and in the circumstances required by the physical topography of the site of Easement A the owners of Lot 118 may access the site of Easement A on Lot 116 by means of

    4. (4)

       Upgrade of the Inclinator. Declare that in these proceedings the findings and decision of Darke J in Breen v Clough [2017] NSWSC 1681 (at [161])

    5. (5)

       Continuation of the Interim Orders. Notwithstanding the making of declarations (2) and (3) in these orders as to the rights of access available to Mr Breen and Ms Dillon under Easement A, by reason of the Court’s findings about the conduct of the parties the interim orders are continued without any variation by these orders until an opportunity has been afforded to each of the parties to put submissions in relation to the matters set out in direction (6) below, and for the avoidance of doubt, until that time Mr Breen and Ms Dillon are restrained until further order from:

    6. (6)

       The legal representatives of the parties are directed upon receipt of the Court’s reasons for decision for these orders to confer with one another and with the Associate to Slattery J to fix a convenient date and time for submissions in relation to the following matters:

    7. (7)

       Grant liberty to apply.