Breen v Clough [2018] NSWCA 172 | Case summary

Court of Appeal (NSW)|2018-08-02|Before: Gleeson JA, Mr DP, Darke J

Background facts

In about November 2009 the appellants became the registered proprietors as joint tenants of Lot 15 in DP 11270 known as 118 Moons Avenue Lugarno (No 118). The respondent became the registered proprietor of the neighbouring property, Lot 14 in DP 11270 (No 116), in about March 2002. It appears that the lots comprising No 118 and No 116 were created by the registration of DP 11270 in 1922.
The respondent has lived in No 116 since acquiring the property. The appellants at first leased No 118 but moved in themselves in July 2011 when tenants vacated the premises.
Each of No 116 and No 118 has a frontage of about 4.27 metres to Moons Avenue and a depth of about 83 metres to the northern boundary of the lot, which is the mean high water mark of the Georges River.
No 116 and No 118 have a common boundary, being the western boundary of No 116 and the eastern boundary of No 118. A substantial brick dwelling is erected on each lot at or near the northern boundary. Each lot descends about 44 metres from Moons Avenue to the northern boundary.
A brick garage and ancillary room are erected close to Moons Avenue. The proprietors of No 116 and No 118 are entitled to use the garage pursuant to cross-easements on their titles.
The two easements involved in the proceedings were created by the registration on 18 January 2002 of DP 1036625. This attached an instrument setting out the terms of easements to be created pursuant to s 88B of the Conveyancing Act 1919 (NSW) (s 88B Instrument).
The s 88B Instrument relevantly created the following easements:

Competency

In order for the appellants to establish that s 101(2)(r) of the Supreme Court Act does not deprive them of an appeal as of right they must show that they have a realistic prospect on appeal of obtaining judgment in their favour for at least $100,000. [14] In the absence of evidence specifically directed to this issue, Mr Ireland relied on a schedule of damages handed up at the trial. The schedule purported to show that the appellants' claim for compensatory damages amounted to nearly $300,000. In addition the schedule suggested that exemplary damages of $40,000 might be awarded.
The schedule was not evidence of the amount the appellants could realistically claim as damages. When Mr Ireland was asked for evidence to support the claims itemised in the schedule, he was unable to identify any material in the appeal books that would justify the appellants' claim for compensatory damages in an amount anywhere near $100,000.
The largest item in the schedule was $175,595 supposedly for rent lost by the appellants from mid-2011 to April 2015 by reason of the respondent's acts in denying access to the inclinator. But from July 2011 the appellants lived in No 118, having sold their previous home. At most the claim could have been for diminution in the rental value of No 118 (not the entire rental value) for perhaps two months.
Two items relating to the cost of proposed fencing work amounted to $32,597.50. Not only was Mr Ireland unable to identify any evidence supporting these claims but there was nothing to explain what the items referred to. Claims for the use of a boat to transport supplies and park fees totalling $56,332.50 were said to be supported by affidavit evidence from Mr Breen. But this evidence, which was unsupported by any documentation, verged on the fanciful, implying that the appellants were forced to make about 15 round trips by boat per week simply to ferry supplies to No 118. The affidavit said to support the remarkable amount of $24,360 for park fees did not explain why the appellants could not purchase an annual park ticket at a cost of under $100. Other items listed in the schedule such as the purchase of a lawn mower seemed to lack any evidence or indeed to bear any relationship to any acts of nuisance allegedly committed by the respondent.
The claim for exemplary damages apparently assumed that it would be open to the appellants on appeal to seek such damages for the period from 2011-2015. But no such claim had been pleaded and the only justification offered for the claim in the notice of appeal related to the respondent's acts after April 2015 in relation to access to the storeroom. It is difficult to see how any claim for exemplary damages could succeed, let alone one yielding $40,000.
It follows that the appeal is incompetent.

Leave to appeal

The principles governing the grant of leave to appeal are well established. They were recently summarised as follows: [15] "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]."
Mr Ireland said that the principal argument he wished to advance if leave was granted was that the primary Judge erred in finding that the appellants were under a duty to co-operate with the respondent's efforts to make the improvements necessary to comply with WorkCover's notice. However, this argument, contrary to Mr Ireland's submissions, does not raise any issue of principle. It rests on the particular wording of the Inclinator Easement and the particular physical characteristics of No 116 and No 118. In any event, the key finding made by the primary Judge was that the impasse over a period of years was largely the responsibility of the appellants. Whether or not there was a duty to co-operate under the terms of the Inclinator Easement, the attribution of responsibility was material to the conclusion that the respondent had not unreasonably interfered with the rights of the appellants.
The appellants have not established that they would suffer significant injustice if leave to appeal is refused. Their claim to damages is barely arguable and appears, at best, to be for an amount well under $100,000.
Two further matters are significant. First, like much litigation between neighbours, the costs incurred by the parties in these proceedings have been wholly disproportionate to the value and significance of the issues in dispute. A relatively minor dispute capable of resolution by some common sense and goodwill has escalated into an Equity Division hearing lasting five days and producing a judgment of 86 pages. [16] If leave was granted and the appeal allowed, the consequence would be yet further litigation in order to have the appellants' modest claim for damages assessed.
Secondly, one of the arguments the appellants belatedly wish to raise on the appeal is that it was always open to the respondent to undertake the necessary works on No 118 by virtue of her rights under the Inclinator Easement. Yet the appellants' position over a lengthy period was that their consent was required and would not be forthcoming.
For these reasons the Court refused the appellants leave to appeal.

Cross-appeal

The respondent's summons for leave to cross-appeal challenged the findings that:

the installation of the fence in place at the storeroom landing infringed the appellants' rights under "the easement" (presumably meaning the Inclinator Easement); and
the respondent was liable to pay $6,000 damages by reason of the infringement.

The draft amended notice of cross-appeal contained grounds contending that:

the primary Judge should have found that the installation of the fence was an appropriate response to the WorkCover notice;
the primary Judge should have found that the works undertaken at the storeroom level did not constitute an unreasonable interference with the appellants' rights under the Inclinator Easement because they were largely responsible for the "ongoing impasse" relating to the work required by WorkCover; and
the primary Judge failed to take into account that the storeroom level was not a "landing" within the meaning of the relevant Australian Standard.

Despite filing the summons seeking leave to cross-appeal, the respondent's written submissions argued, or at least asserted, that s 101(2)(r)(ii) of the Supreme Court Act was engaged because the provision was concerned not with the value of the claim but the value of the lot burdened by the Storage Easement (that is No 116). In support of this submission the respondent cited the decision of the High Court in Milne v James. [17] However this decision was not followed by the High Court in Oertel v Crocker. [18]
In oral submissions Mr O'Connor appeared to accept that the respondent required leave to appeal. In any event, the correct position was recently restated by this Court in Horseshoe Pastoral Co Pty Ltd v Rixon: [19] "It is common ground that the value of the servient tenement over which the primary judge held that [the respondent] was entitled to an equitable easement is more than $100,000. That is not the question. The question is whether the right or property in issue on the appeal is of more than the value." Mr O'Connor did not contend that the right or property in issue or the cross-appeal was valued at more than $100,000.
The value of the rights in issue in the proposed cross-appeal is very low and pales into insignificance compared with the costs the parties have incurred in litigating their claims. The draft amended notice of cross-appeal contains grounds limited to challenging findings of fact. No question of principle or public importance was identified by Mr O'Connor. Nor is there any injustice to the respondent in denying leave to cross-appeal. As Mr O'Connor frankly admitted, leave was sought only because the appellants filed a notice of appeal.
For these reasons the Court refused to grant the respondent leave to cross-appeal.

Endnotes

Breen v Clough [2017] NSWSC 1681 (Primary Judgment) at [2]. A cross-claim by the respondent seeking to recover amounts by way of contribution to the costs of repair and maintenance of the inclinator was settled in August 2017 when the respondent accepted the appellants' Offer of Compromise.
We refer to the moving parties in this Court as the "appellants" notwithstanding that, as will appear, they require leave to appeal.
Approved Civil Form 105.
As to the responsibilities of a respondent to take steps if an appeal appears to be incompetent see Coshott v Vardas [2017] NSWCA 258.
On 1 September 2015, WorkCover NSW was replaced by three new entities including SafeWork NSW.
Primary Judgment at [12].
Primary Judgment at [13].
Primary Judgment at [220].
Primary Judgment at [218]-[219].
Primary Judgment at [167]-[169].
Primary Judgment at [227].
Primary Judgment at [230].
Primary Judgment at [260].
Pawlowska v Zajglic [2011] NSWCA 118 at [14]-[15] (Campbell JA) and cases cited there.
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Gleeson JA, Macfarlan and Payne JJA agreeing).
The primary Judge delivered a separate judgment dealing with costs: Breen v Clough (No 2) [2018] NSWSC 158 (Costs Judgment).
(1910) 13 CLR 165.
(1947) 75 CLR 261; [1947] HCA 40.
[2018] NSWCA 121 at [3]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2018

Occupational Health and Safety Act 2000(NSW)

repealed) Occupational Health and Safety Act 2000(NSW)

Solicitors: DPH Lawyers (Appellants) Redmond Hale Simpson (Respondent) File Number(s): 2017/386557 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2017] NSWSC 1681 Date of Decision: 5 December 2017 Before: Darke J File Number(s): 2014/343553

Breen v Clough

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