Clough v Breen & Anor [2022] NSWSC 1026

Clough v Breen & Anor [2022] NSWSC 1026

Given the persistent and confrontational disputes over the easements and inclinator, and without determining the final construction of the easements, the balance of convenience and the existence of serious questions to be tried justified interlocutory orders regulating the parties' access to, use, maintenance, repair and funding of the inclinator, imposing limited restraints, and creating mechanisms to reduce conflict until final judgment.

Jurisdiction
Australia
Judgment Date
01 August 2022
Procedural Posture
Equity Division Real Property List Proceedings Concerning Easements, Trespass, Nuisance, Breach of Easements and Cross Claims About Upgrading and Management of an Inclinator / Interlocutory Orders Pending Final Judgment After Hearing
Outcome
The Court made interlocutory orders commencing 8 August 2022 and operating until further order, and directed the parties to provide submissions about any adjustments before final judgment.
Legal Topics
['easements' 'inclinator Access and Maintenance' 'right of Access' 'services Easements' 'interlocutory Relief' 'sinking Fund' 'alternative Dispute Resolution']
['real Property' 'equity'] ['easements' 'inclinator Access and Maintenance' 'right of Access' 'services Easements' 'interlocutory Relief' 'sinking Fund' 'alternative Dispute Resolution']

Case Brief

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Procedural Posture

Equity Division Real Property List Proceedings Concerning Easements, Trespass, Nuisance, Breach of Easements and Cross Claims About Upgrading and Management of an Inclinator / Interlocutory Orders Pending Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether interlocutory orders should be made pending determination of the final issues.' 'What form interlocutory orders should take to regulate use, maintenance, repair and funding of the inclinator and related easements.' 'How to reduce near-term conflict between neighbouring owners consistently with their arguable rights under the easements.' 'Whether to impose restraints on access to parts of Lot 116 and use of inclinator controls pending final judgment.' 'Whether to require a sinking fund and a mechanism for alternative dispute resolution if police are called.']

Ratio Decidendi

Given the persistent and confrontational disputes over the easements and inclinator, and without determining the final construction of the easements, the balance of convenience and the existence of serious questions to be tried justified interlocutory orders regulating the parties' access to, use, maintenance, repair and funding of the inclinator, imposing limited restraints, and creating mechanisms to reduce conflict until final judgment.

Court Disposition

The Court made interlocutory orders commencing 8 August 2022 and operating until further order, and directed the parties to provide submissions about any adjustments before final judgment.

Orders

  • ['Defined Lot 116, Lot 118, the easements, the inclinator, the Sinking Fund and External Easement Liabilities.' 'Ordered the solicitors to establish a Sinking Fund by 15 August 2022 and ordered each party to pay $5,000 into it by 22 August 2022 for External Easement Liabilities.' "Ordered annual contributions to the...