Clough v Breen & Anor (No. 2) [2022] NSWSC 1759

Clough v Breen & Anor (No. 2) [2022] NSWSC 1759

Easement I did not authorise the defendants to place, maintain or use the CCTV camera on the storage area level of Lot 116 because the camera and associated cabling were neither domestic services nor services to or from the benefited lot within Schedule 8 Part 11 of the Conveyancing Act 1919 (NSW). The camera was therefore an impermissible fixture and a trespass that could be removed subject to orderly conditions.

Jurisdiction
Australia
Judgment Date
19 December 2022
Procedural Posture
Real Property Easements Dispute in the Equity Jurisdiction / Principal Judgment Determining the Storage Area Camera Issue Before Final Determination of Remaining Issues
Outcome
Declaration made that Easement I does not authorise the defendants to place, maintain and use the CCTV camera on the area of the plaintiff's land burdened by Easement I; plaintiff given liberty to remove it subject to conditions.
Legal Topics
['easements' 'easement for Services' 'construction of S 88 B Instrument' 'cctv Camera on Burdened Land' 'trespass' 'interlocutory and Threshold Issues']
['real Property' 'equity'] ['easements' 'easement for Services' 'construction of S 88 B Instrument' 'cctv Camera on Burdened Land' 'trespass' 'interlocutory and Threshold Issues']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Real Property Easements Dispute in the Equity Jurisdiction / Principal Judgment Determining the Storage Area Camera Issue Before Final Determination of Remaining Issues

Legal Issues

  1. 1 ['Whether Easement I entitled the owners of Lot 118 to install, maintain and use a CCTV camera within the area of Easement I on Lot 116.' 'Whether the CCTV camera and associated cabling were a domestic service to or from the benefited lot within Conveyancing Act 1919 (NSW), Schedule 8 Part 11.' 'Whether the Court should determine other proposed threshold issues before final determination of contested facts.']

Ratio Decidendi

Easement I did not authorise the defendants to place, maintain or use the CCTV camera on the storage area level of Lot 116 because the camera and associated cabling were neither domestic services nor services to or from the benefited lot within Schedule 8 Part 11 of the Conveyancing Act 1919 (NSW). The camera was therefore an impermissible fixture and a trespass that could be removed subject to orderly conditions.

Court Disposition

Declaration made that Easement I does not authorise the defendants to place, maintain and use the CCTV camera on the area of the plaintiff's land burdened by Easement I; plaintiff given liberty to remove it subject to conditions.

Orders

  • ["Declare that Easement I does not authorise the defendants to place, maintain and use the CCTV camera at the storage area level below landing 5 on the area of the plaintiff's land burdened by Easement I." 'Order that the plaintiff is at liberty to remove the CCTV camera from the storage level area where it is...