Breen v Clough [2018] NSWCA 172

Breen v Clough [2018] NSWCA 172

The appeal was dismissed as incompetent because the appellants did not demonstrate a realistic prospect of obtaining judgment as of right for at least $100,000; leave to appeal and leave to cross-appeal were refused as there was no issue of principle or clear injustice, and the value of rights in issue was modest and not sufficient for appeal or cross-appeal competency.

Parties
First Appellant: Douglas Breen; Second Appellant: Tracey Dillon; First Respondent: Christine Clough
Jurisdiction
Australia
Judgment Date
08 August 2018
Procedural Posture
Appeal / Court of Appeal, Orders and Reasons
Outcome
Appeal dismissed as incompetent; applications for leave (both sides) refused; each party to bear own costs
Legal Topics
Easement Disputes, Appeals, Damages for Nuisance, Leave to Appeal
Property Law Civil Procedure Easement Disputes Appeals Damages for Nuisance Leave to Appeal

Case Brief

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Parties

Douglas Breen

First Appellant

Tracey Dillon

Second Appellant

Christine Clough

First Respondent

Procedural Posture

Appeal / Court of Appeal, Orders and Reasons

Legal Issues

  1. 1 Whether denial of access to inclinator constituted substantial interference with easement rights
  2. 2 Whether compensatory and exemplary damages should be awarded
  3. 3 Whether there is competency for an appeal as of right under s 101(2)(r) Supreme Court Act 1970 (NSW)

Ratio Decidendi

The appeal was dismissed as incompetent because the appellants did not demonstrate a realistic prospect of obtaining judgment as of right for at least $100,000; leave to appeal and leave to cross-appeal were refused as there was no issue of principle or clear injustice, and the value of rights in issue was modest and not sufficient for appeal or cross-appeal competency.

Court Disposition

Appeal dismissed as incompetent; applications for leave (both sides) refused; each party to bear own costs

Orders

  • The notice of appeal is dismissed as incompetent.
  • Refuse the oral application by Mr Breen and Ms Dillon for leave to appeal.