Clough v Breen & Anor (No. 3) [2023] NSWSC 752

Clough v Breen & Anor (No. 3) [2023] NSWSC 752

The call station invoice was ultimately incurred because the call station was moved in execution of the Court's order and should be borne by Ms Clough, with no deduction from the Sinking Fund. The locksmith invoice should be to Mr Breen and Ms Dillon's account because, given Mr Breen's conduct and the hostility between the parties, it was reasonable for Ms Clough not to ask him for a key and instead have new keys made. Half of the NRMA excess should be deducted from the Sinking Fund and paid to Ms Clough because the damage was accidental ordinary use damage to be borne equally, and alternatively the Court was not persuaded on the balance of probabilities that it was solely caused by Mr...

Jurisdiction
Australia
Judgment Date
03 July 2023
Procedural Posture
Equity Proceedings Concerning Real Property Easements and Administration of a Court Ordered Sinking Fund / Reasons for Orders Made on 4 May 2023 Following a Directions Hearing on 28 April 2023; Principal Proceedings Reserved
Outcome
Payments authorised out of the Sinking Fund in part; one invoice to be borne by Ms Clough; no separate costs order made.
Legal Topics
['easements' 'sinking Fund' 'inclinator Expenses' 'payment of Invoices' 'costs']
['real Property' 'equity'] ['easements' 'sinking Fund' 'inclinator Expenses' 'payment of Invoices' 'costs']

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

Equity Proceedings Concerning Real Property Easements and Administration of a Court Ordered Sinking Fund / Reasons for Orders Made on 4 May 2023 Following a Directions Hearing on 28 April 2023; Principal Proceedings Reserved

Legal Issues

  1. 1 ['Whether Inclined Lift Services invoice no. 10607 dated 31 January 2018 should be paid from the Sinking Fund or borne by Ms Clough.' 'Whether Applied Locksmith invoice no. 5364 dated 14 November 2018 should be paid from the Sinking Fund and debited against Mr Breen and Ms Dillon.' 'Whether half of the NRMA insurance excess for Inclined Lift Services invoices 11977 and 10313 should be deducted from the Sinking Fund and paid to Ms Clough.' 'Whether any separate costs order was warranted for the invoice dispute.']

Ratio Decidendi

The call station invoice was ultimately incurred because the call station was moved in execution of the Court's order and should be borne by Ms Clough, with no deduction from the Sinking Fund. The locksmith invoice should be to Mr Breen and Ms Dillon's account because, given Mr Breen's conduct and the hostility between the parties, it was reasonable for Ms Clough not to ask him for a key and instead have new keys made. Half of the NRMA excess should be deducted from the Sinking Fund and paid to Ms Clough because the damage was accidental ordinary use damage to be borne equally, and alternatively the Court was not persuaded on the balance of probabilities that it was solely caused by Mr...

Court Disposition

Payments authorised out of the Sinking Fund in part; one invoice to be borne by Ms Clough; no separate costs order made.

Orders

  • ['Inclined Lift Services invoice no. 10607 dated 31 January 2018, claim for $163.90, shall not be paid from the Sinking Fund but shall be borne by Ms Clough.' 'Applied Locksmith invoice no. 5364 dated 14 November 2018, claim for $220, may be paid by the solicitor for Ms Clough from the Sinking Fund to the creditor...