Clough v Breen & Anor

The plaintiff and the defendants are neighbours. The boundary between their two properties traverses steeply sloping waterfront land in the southern Sydney suburb of Lugarno. Both properties have striking views to a nature reserve over sheltered waters on the Georges River. The parties are locked into a bitter dispute about easements related to an inclinator, which services both their properties.

The dispute has caused a sufficiently large number of day-to-day problems of an unpleasant and at times confronting nature that after a lengthy hearing the Court has decided to regulate the parties’ use and maintenance of the inclinator, even before final judgment. This judgment resolves various contests about the form of those interlocutory orders. It deals only with the facts necessary to resolve those interlocutory contests. A more detailed explanation of the operation of the easements will be included in the final judgment. The terms of the final orders will be moulded in part as result of the experience of the parties in complying with these interlocutory orders.

The plaintiff, Ms Christine Clough, is the registered proprietor of a property which will be described in these reasons merely as Lot 116. The defendants, Mr Breen and Ms Dillon, are the registered proprietors of a property which will be described as Lot 118. Both lots have a narrow frontage to their local street and a wider frontage at the Georges River high water mark. Both lots fall away steeply at first from the street and their landform becomes less precipitous as they approach the Georges River.

Multiple easements created by an instrument under Conveyancing Act 1919, s 88B control the use of Lots 116 and 118. The inclinator is physically located on Lot 116 but is accessible by the defendants under the terms of one of the easements from Lot 118 at multiple points along the long common boundary between Lots 118 and 116.

Only three of these easements 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 using 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 parties have regularly litigated their differences in this Court: Breen v Clough [2017] NSWSC 1681 (“the 2017 Proceedings”); Breen v Clough [2018] NSWCA 172; and Clough v Breen [2020] NSWSC 653. These judgments set out most of the relevant background facts, decide the issues contested in the past and analyse the terms of the easements.

Ms Clough commenced the current proceedings by her Summons filed on 1 May 2020. The issues are currently defined in Ms Clough’s Further Amended Statement of Claim and Mr Breen and Ms Dillon’s Cross Claim.

Without attempting a comprehensive summary, Ms Clough’s pleading raises issues of trespass to Lot 116, nuisance, breach of the easements and consequential relief and Mr Breen and Ms Dillon’s pleading raises issues of upgrading the inclinator, the nature of their entitlement to use the inclinator and the need for a regime of management to regulate the easements. Both parties’ cases pursue contests about the proper construction of the terms of the easements. But those issues can be deferred until final judgment. This judgment resolves a narrower set of interlocutory issues.

These proceedings were heard over five days commencing 9 May 2022. 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. Mr F. Maghami and Mr M. McGirr of counsel, instructed by Charlotte Morson, of Morson Law Litigation Lawyers appeared for the defendant/cross-claimants.

These reasons do not set out a full historical narrative relating to the issues between the parties and does not include any credit assessments. A fuller historical narrative will be included in the Court’s final judgment. The reader is referred to the Court’s previous judgments for additional background.

The purpose of these reasons is merely to explain why the Court has resolved various interlocutory disputes between the parties the way that it has. The Court has done so consistently with the parties’ arguable existing rights. But the form of these orders does not foreshadow that the Court has made a final decision for or against the case of one or other party. These orders are made merely to deal with the immediate balance of convenience because of the unusual importance in this case in avoiding short-term conflict.

The Court was presented during the hearing with evidence of many personal confrontations between the occupants of Lots 116 and 118 over almost every aspect of the use of the inclinator, the employment of the inclinator easements, and the funding, maintenance, and potential upgrading of the inclinator. To attempt to reduce the number of such confrontations before final judgment, during the hearing the Court presented draft interim orders (“the draft interim orders”) to the parties. The Court asked the parties for their submissions about what adjustments they proposed to these draft interim orders.

The parties provided their written submissions about the draft interim orders and spoke to those submissions orally. The proceedings were relisted on 11 July because of a further incident between the parties. During the relisting further submissions were put about the form of the draft interim orders. So informed, the Court has decided to make the interlocutory orders set out below. The resolution of the various areas of contention are explained below. The Court directs as part of the interlocutory orders below that before final judgment each party will have an opportunity to observe the operation of the orders now made for a period of six weeks and then may put submissions, as to any adjustments for which that party contends, if final orders of a similar kind are made.

Despite the many bitter contests between these parties, the Court expresses its confidence in, and appreciation of, the careful assistance that the legal representatives on both sides of these proceedings have continued to give to their respective clients and to the Court with the objective of limiting the conflict between the parties.

The Sinking Fund. The parties need a sinking fund to meet all regular maintenance liabilities for the inclinator. Too many of their disputes are the unnecessary product of contests about engaging and paying contractors and Mr Breen refusing to reimburse Ms Clough for external liabilities she has incurred in relation to the inclinator because of claimed set offs. With some slight changes the regime in the original draft interim orders has been retained.

Planned Work on Services to Lot 116 or Lot 118. A frequent source of conflict between these parties arises due to the blocking of the use of the inclinator from the not uncommon need for one or other party to install, maintain or upgrade the services in Easement A for the benefit of Lots 116 or 118. The draft interim orders provide for a regime for quarterly access to the easement for a fortnight, to undertake planned work on these services, with each party having a week within the fortnight reserved for access to the easement for this purpose.

Routine Maintenance Work on the Inclinator. During the term of these orders Ms Clough will be permitted to continue to engage contractors to undertake the routine maintenance of the inclinator. But she will be limited in that function by having to obtain the prior consent of the solicitors for Mr Breen and Ms Dillon. But to avoid misuse of the power to consent, a requirement will be placed on Mr Breen and Ms Dillon that their consent may not be unreasonably withheld. This seems to be the most workable short-term solution. Predictability as to the timing of routine maintenance on the inclinator is desirable. Ms Clough can undertake that routine maintenance during the week of the regularly reserved fortnight for planned work for changes to the services to Lot 116 and Lot 118.

Unexpected Repair or Maintenance Work on the Inclinator. The orders must be able to accommodate unexpected repair or maintenance work on the inclinator. For the present, this work will need to be engaged by the person using the inclinator and otherwise through Ms Clough but on terms requiring her to keep Mr Breen and Ms Dillon fully informed as to the progress of the work, which in the case of emergency work would be the provision of information twice daily. This information may be given through the solicitors.

General Restraints. The Court has imposed general restraints dealing with two specific means of entry by the Lot 118 owners into Lot 116. The imposition of these restraints does not indicate a decision by the Court on the issues relating to them. But there is at least a serious question to be tried on those issues and in the meantime the Court can make interim orders reflecting the balance of convenience to prevent unnecessary conflict pending the Court’s final judgment.

Access to the Inclinator. The draft interim orders contemplated a regime in which each party would have a safe period in which they could be confident that the other party would not be using the inclinator. The draft interim orders had this arrangement operating around-the-clock, with the first half of each hour being given to the owner of Lot 116 and the second half of each hour being given to the owners of Lot 118.

Ms Clough submitted that this was unworkable. But Mr Breen and Ms Dillon supported the idea, which had some advantages for the parties so that each would know that the other party would not be using the inclinator for a regular period each day and the parties could therefore avoid one another on a regular basis. At the revisited hearing the Court raised the possibility of a different approach but applying the same idea, so that one party could not use the inclinator merely for half an hour or an hour each day.

But this alternative regime does not account for situations such as an unexpected guest or tradesman arriving without prior notice, or at a time that does not align with previous plans. So, the Court has abandoned that approach in favour of one which prevents one party from using the inclinator, when the other party has already engaged it, an issue that was debated during the relisting of the proceedings on 11 July.

The essential features of the new regime are that when one party is using the inclinator the other party will not be able to intervene in its use. But each party will only be able to undertake one full up and back cycle with a gap of two minutes between each journey to detain the inclinator car to load or unload. There will be a further gap of two minutes in which the party using the inclinator car must allow the other party an opportunity to summon it. Other than pursuant to this order, each party is restrained from obstructing the access of the other to the inclinator car, such as by leaving the inclinator door open.

CCTV Cameras. The draft interim orders canvass the possibility of cameras being placed on the easements to facilitate compliance with the draft interim orders. The Court contemplated that the feed from some of the cameras would be available to both parties. But neither party seemed attracted to that proposal. And the Court was informed that there were multiple cameras already located on Lot 118. Moreover, the installation of one of those cameras on Lot 118 between Landing 1 and Landing 2 led to the relisting of the proceedings and the Court making orders restraining the use of lights on that camera.

The history of conflict related to these cameras, the high numbers of cameras already in use, and the parties’ general unwillingness to share camera feeds has led the Court not to make any interim orders in relation to CCTV cameras.

Mediation. The draft interim orders included proposals for the mediation of issues concerning final relief based on the operation of the draft interim orders. But having been involved in failed mediations in the past, neither party was interested in any further large-scale mediation and the Court will not force that further expense upon them. Mediation in relation to final relief has been dropped from the interlocutory orders below. But some form of small-scale alternative dispute resolution needs to be available to these parties should a short-term dispute flareup. That is dealt with in the next section.

Contacting the Local Police. The police have been called to Lots 116 and 118 to resolve potential breaches of the peace on too many occasions. The properties are within the St George Police Area Command (“PAC”). The calling of the police to this location on frequent occasions in recent years is an unacceptable diversion of limited community police resources towards a property dispute which properly regulated should not require any police attention. The draft interim orders contemplated the possibility of the parties being restrained from contacting the local police, except in the event of emergency. But placing restraints on the parties calling the police may itself occasion other safety risks.

The nature of the recent incidents and the submission of the parties to these new interim orders should reduce the need for police intervention. But if the police are called, they should have at their option (if they judge it to be necessary) a mechanism to channel the immediate conflict in the incident to alternative dispute resolution chosen jointly by their solicitors. The Court has not ordered general mediation. But it is not unreasonable to require the parties to engage in alternative dispute resolution about specific incidents that still flareup despite the regime imposed by these orders.

The triggering of that regime will involve the police having the additional option, if called to either Lot 116 or Lot 118 premises for an incident relating to the other lot, to contact the solicitors for the parties, to request that the solicitors initiate alternative dispute resolution about the incident. If the incident involved serious criminal behaviour this option may not be appropriate, as one or other of the parties may have to be charged.

The parties will each be required to pay $3,000 into the sinking fund in advance, so the solicitors have a fund to pay such a mediator, a cost which may have to be incurred at short notice. The solicitors for each party will be directed to provide the police with their solicitors’ afterhours contact numbers for that purpose.

If contacted by the police, the solicitors will be directed to engage a mediator within 48 hours to deal with the incident referred by the police, unless the solicitors agree that the incident has concluded and is unlikely to recur and does not require the assistance of a mediator.

The Court will send a copy of this judgment and these orders to the Officer-in-Charge of the St George PAC, directing attention to relevant parts of the judgment and orders.

Liberty to Apply and Joining Mr Michael Rose. The Court has decided that no special arrangements need to be put in place in relation to liberty to apply. It is not expected that the parties will need to avail themselves of that liberty in relation to the operation of these orders as the Court is now provided a mechanism for the parties to put on written submissions to propose adjustments to the orders.

Mr Breen and Ms Dillon propose by motion the joinder of Mr Rose in relation to the incident which occurred between the parties in June. But Ms Clough has not had a proper opportunity to reply to all the evidence which has been put on by Mr Breen and Ms Dillon in relation to that incident and the Court will defer a decision on that motion for determination with the issues for the final judgment. So that motion will be stood over to a mention date before the court gives final judgment.

Commencement of Operation of These Orders. The parties will need to prepare themselves for the commencement of the operation of these orders. A period of just over one week should be sufficient for them to prepare. These orders are made today, Monday, 1 August 2022. They will commence operation on Monday, 8 August 2022 and will operate from that date until the Court pronounces final relief.

Accordingly, the Court makes the following orders and directions: