Clough v Breen (No.5) [2024] NSWSC 337

Clough v Breen (No.5) [2024] NSWSC 337

The first defendant's conduct in respect of three identified incidents amounted to substantial interference with the plaintiff's rights under easements and constituted trespass, warranting aggravated and exemplary damages totalling $28,000; the defendants are jointly liable to pay 60% of the plaintiff's costs of the proceedings to date due to her substantial success despite some failures, apportioned for fairness and clarity, with interlocutory orders continuing pending the resolution of remaining issues.

Jurisdiction
Australia
Judgment Date
09 April 2024
Procedural Posture
Principal Judgment / Post Final Hearing; Damages and Costs Determination
Outcome
Judgment for the plaintiff with damages and costs ordered, interlocutory orders continuing, and liberty to apply granted.
Legal Topics
['easements' 'nuisance' 'trespass' 'aggravated Damages' 'exemplary Damages' 'costs' 'party/party Costs' 'substantial Interference With Easement']
['land Law' 'equity'] ['easements' 'nuisance' 'trespass' 'aggravated Damages' 'exemplary Damages' 'costs' 'party/party Costs' 'substantial Interference With Easement']

Case Brief

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Procedural Posture

Principal Judgment / Post Final Hearing; Damages and Costs Determination

Legal Issues

  1. 1 ["Whether aggravated and exemplary damages should be awarded for substantial interference with plaintiff's rights under easements and trespass" 'Determination of quantum of damages for identified incidents of trespass and nuisance' 'Appropriateness, timing, and apportionment of costs orders in a multi-issue proceeding']

Ratio Decidendi

The first defendant's conduct in respect of three identified incidents amounted to substantial interference with the plaintiff's rights under easements and constituted trespass, warranting aggravated and exemplary damages totalling $28,000; the defendants are jointly liable to pay 60% of the plaintiff's costs of the proceedings to date due to her substantial success despite some failures, apportioned for fairness and clarity, with interlocutory orders continuing pending the resolution of remaining issues.

Court Disposition

Judgment for the plaintiff with damages and costs ordered, interlocutory orders continuing, and liberty to apply granted.

Orders

  • ['The first defendant pay damages to the plaintiff in the sum of $28,000.' "The defendants pay 60% of the plaintiff's costs of these proceedings incurred up to the date of this judgment on the ordinary basis." 'Interlocutory orders made by the Court on 1 August 2022 continue as modified.' 'Liberty to apply.']