plaintiff. Orders made 19 May 2020: (1) defendants to deliver a copy of the key to the access gate at Landing No 5 to the plaintiff by 4.00 pm 19 May 2020; (2) defendants to refrain from further changing the...
Key principles
A party asserting interlocutory mandatory relief must establish a prima facie right and that the balance of convenience favours the preservation or restoration of the status quo;...
Where an easement confers a right of access, the easement-holder is entitled to the keys necessary to use or maintain the easement; an interference with that right of access...
Allegations that would, if established, lead to a defence based on the plaintiff's misconduct (for example, alleged breaches of AVOs) do not automatically defeat an interlocutory...
Issues before the court
Whether the plaintiff established a prima facie right to a key and access under the inclinator easement sufficient to support interlocutory relief.
Whether an interlocutory mandatory injunction should be granted to require the defendants to provide a key and restore access.
Whether the plaintiff must prove actual damage in nuisance to succeed in the interlocutory application (defendants asserted that changing the lock...
Plain English Summary
The Supreme Court (Rees J) granted the plaintiff interim mandatory injunctions requiring neighbours to provide a copy of the key and an access code to an access point on an inclinator easement and restraining the neighbours from changing the gate lock without the plaintiff's consent. The decision rested on a prior judgment (Breen v Clough) holding that the easement includes entitlement to keys, the proposition that interference with an easement imports damage, and the ordinary interlocutory test (prima facie case and balance of convenience). Allegations of misconduct and AVOs were contested and could not be resolved on interlocutory material, so they did not bar relief.
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Deep Dive
2,342 words · generated 09/07/2026
What happened
This was an interlocutory application in the Supreme Court (Equity) heard ex tempore on 19 May 2020 before Rees J. The plaintiff, Christine Clough, sued neighbouring landowners Douglas Breen and Tracey Dillon for interlocutory relief to restore her practical ability to use an inclinator easement that serves both properties. Specifically, she sought orders that the defendants (a) provide her with a copy of the key to the access gate at Landing No 5 of the inclinator easement encumbering her property, (b) refrain from changing that lock without her written consent, and (c) restore or replace the lock on the access Door to Landing No 5 (or provide an access code) so she can access the inclinator via the garage and storage building at street level.
Whether the defendants' allegation of 'unclean hands' (misconduct by plaintiff and her partner and alleged AVO breaches) barred interlocutory relief.
Cited legislation
1 cited instrument linked from this judgment.
Background facts important to the application:
The inclinator and the easement pre-dated the parties' purchases; Darke J previously determined the content of the easement in Breen v Clough [2017] NSWSC 1681 (see the quoted passages at [152]-[154] and the specific holdings at [256]-[257] about keys).
On 18 March 2020 the defendants changed the lock on the Gate and, by epoxy glue, disabled the lock on the Door; they installed a keypad and allowed the maintenance contractor access but did not provide the plaintiff with the key or code (transcript paragraphs describing events from March 2020 onwards).
The defendants explained the measures as steps taken to protect the household from alleged stalking and intimidation by the plaintiff's partner, Mr Rose; there are AVOs involving the parties (interim AVOs and a later AVO involving Mr Rose); these allegations were contested and remain matters for the Local Court.
The plaintiff said she and her elderly father (aged 93) rely on the inclinator for access to street level; inability to use Landing No 5 would risk their safety or impede the father's care needs.
Relief was sought on the ordinary interlocutory injunction footing, prima facie case and balance of convenience, but the relief sought was mandatory in effect, because it required the defendants to furnish keys and an access code (and restrained them from changing locks).
Rees J granted the interlocutory relief on 19 May 2020 (orders requiring delivery of a key and access code by 4.00 pm that day, restraint on further lock changes without consent or order, liberty to apply, costs reserved, matter stood over for directions).
Why the court decided this way
Three propositions carried the decision:
Binding prior determination of easement rights: Rees J treated Darke J's earlier exposition in Breen v Clough as decisive between the same parties on the content of the easement (see the judgment's quotation of Darke J at [152]-[154] describing the right of access under Schedule 8 to the Conveyancing Act, and his holdings at [256]-[257] that exclusive possession of keys was inconsistent with the easement). Rees J stated those findings bind the parties and directly supported the plaintiff's prima facie entitlement to a key and to use/access (see the Conclusion where the judge notes Breen v Clough binds the parties).
Interlocutory test applied (including to mandatory injunctions): Rees J applied the orthodox two-step interlocutory test: whether there is a prima facie case and whether the balance of convenience favours granting the injunction. Rees J rejected any different, heightened standard for mandatory interlocutory injunctions in Australia (discussing the authorities and treatises and quoting that the same test applies, and that the court should choose the course that carries the lower risk of injustice). In short, if withholding a mandatory interlocutory injunction would carry a greater risk of injustice, then it can be granted even absent 'high degree of assurance' as to final success.
Effect of interference with an easement: On the nuisance/ damage point, Rees J accepted that while private nuisance typically requires proof of actual damage, there is an exception for interferences with rights of access under an easement where damage is implied. The judge relied on the Staley v Pivot passage (as advanced by defendants) and concluded the exception applied here; that lowers the plaintiff's evidentiary burden at interlocutory stage and reinforced the prima facie right to relief.
How those propositions combined in application:
The defendants acknowledged they had interfered with the plaintiff's right of access (they changed the lock and disabled the door lock). Rees J found the prima facie right established (Breen v Clough binding), and that the plaintiff's evidence (including hardship to her 93 year-old father, and risk if the inclinator were to fail while inaccessible at Landing No 5) made the balance of convenience favour restoring the status quo as defined by the prior judgment.
The defendants' argument that the plaintiff's and Mr Rose's alleged misconduct (including AVOs) should defeat equitable relief was rejected on interlocutory material because the facts were contested, affidavits untested and no cross-examination occurred. Rees J was not prepared to make final findings on those allegations on the interlocutory application; unclean hands was not established.
The defendants' suggestion they could fence off access or that maintaining a keypad without giving the plaintiff the code was adequate was treated as inconsistent with the easement rights as interpreted in Breen v Clough.
That reasoning led directly to the mandatory relief, restoring access by forcing the defendants to provide a key and the access code and restraining them from changing locks without consent or further order.
Before and after state of the law
Before:
The established law on interlocutory injunctions in Australia required a plaintiff to show a prima facie case and that the balance of convenience favoured interlocutory relief; there was debate in some authorities, and in some English decisions, about a heavier burden for mandatory relief (the so-called 'higher degree of assurance' test).
What the judgment does:
Rees J applies settled Australian authorities accepting that mandatory interlocutory relief is governed by the same test as prohibitory relief; he cites Australian authorities (Mineralogy, Films Rover and other authorities summarised) to show that no separate higher standard applies in Australia and that mandatory relief may be appropriate to restore the pre-litigation status quo where the balance of convenience requires it.
After:
The case reaffirms existing Australian authority that mandatory interlocutory injunctions can be granted without any special heightened standard and illustrates the application of that principle in easement disputes where a prior domestic/court determination of easement content exists between the same parties. It also reiterates the specific rule that interference with an easement right of access may import damage and reduce the requirement to prove actual damage in nuisance at interlocutory stage.
Key passages with plain-English translation
I will extract and translate central passages and indicate their significance.
Quoted passage from Darke J (Breen v Clough) as reproduced: “The relevant words attributed in Schedule 8 are: 1. The owner of the lot benefited may: (a) by any reasonable means pass across each lot burdened... and (b) do anything reasonably necessary for that purpose, including entering the lot burdened... 2. In exercising those powers, the owners... must: (a) ensure all work is done properly, (b) cause as little inconvenience as is practicable... (d) restore the lot burdened as nearly as is practicable to its former condition...”
Plain English: The statutory model for a 'right of access' gives owners cross-rights to pass and to take necessary steps for access, but requires them to act reasonably and minimise inconvenience or damage to neighbours.
Significance: Forms the textual basis for saying that both neighbours have rights to use and maintain the inclinator and that mutual restraint is required.
Darke J’s holding reproduced: “I do not see it as consistent with the terms of the easement that only one party possess keys if that possession confers an ability to restrict the other party in relation to the use and maintenance of the inclinator.” ([256])
Plain English: One party should not hold keys in a way that lets them block the other party’s legal easement rights.
Significance: The court here used that holding as binding precedent between the parties to justify compelling delivery of keys.
Rees J’s articulation of the interlocutory test for mandatory injunctions: “A court hearing an application for an interlocutory mandatory injunction must apply exactly the same tests as it would in the case of an application for an interlocutory prohibitory injunction, not some different or more exacting test.”
Plain English: Do not invent a tougher rule just because the injunction is mandatory; apply the usual prima facie and balance of convenience test.
Significance: This validates granting orders that actually require defendants to do something (return to the pre-existing status quo) where that is less likely to produce injustice.
Rees J’s balance of convenience conclusion: “It seems to me that the balance of convenience favours restoration of the right of access. Unless that right of access is restored, then the plaintiff’s enjoyment of her home is impeded.”
Plain English: On the facts before the court, restoring access was the option that avoided the greater risk of unfairness, because the plaintiff’s day-to-day life and capacity to care for her elderly father were materially affected.
Significance: This is the decisive utilitarian weighing that led to the injunction.
What fact patterns trigger this precedent
This decision will be directly applicable, or strongly persuasive, in cases with these features:
There is an established easement of right of access between neighbours and a prior judicial determination or clear documentary terms describing the scope of that easement (especially where the prior determination addresses who is entitled to keys).
One party has taken affirmative steps that physically prevent another's reasonable exercise of an easement right (changing locks, disabling access points, installing access control without sharing codes).
The aggrieved party claims risk to health, safety or enjoyment of the land where losing immediate access would cause non-quantifiable or difficult-to-compensate harm (for example, reliance on mechanical access because of steep topography or elderly residents).
The parties' allegations of interpersonal misconduct are contested and unresolved, such that a defendant's claim of self-protection depends on factual findings inappropriate to resolve on affidavit material alone.
An applicant seeks mandatory interlocutory relief to restore the pre-change status quo rather than purely prohibitory measures.
In such circumstances a court is likely to:
Treat binding prior findings on easement content between the same parties as decisive;
Consider granting mandatory interlocutory orders to return parties to the pre-litigation position where the balance of convenience so requires;
Decline to decide contested allegations of misconduct at interlocutory stage absent a compelling evidentiary basis.
How later courts have treated it
This is a 2020 Supreme Court (NSW) interlocutory decision applying binding local precedent (Breen v Clough [2017]) and established interlocutory principles. Its decisive value is primarily:
As an immediate application of Breen v Clough between the same parties: the court emphasised that earlier findings about the content of the easement bind the parties and can determine interlocutory relief.
As a practical example of granting mandatory interlocutory relief to restore access in property/easement disputes where access is materially impeded and the other party's safety defence rests on contested facts.
Because this decision follows and applies earlier authorities on mandatory interlocutory injunctions (Films Rover, Mineralogy etc.) rather than breaking new doctrinal ground, later courts will treat it as an applied instance of settled law rather than as an authority changing the law. It will be cited by practitioners and judges in the context of:
Requests for mandatory relief to compel restoration of access to easements;
Arguments about reliance on prior determinations between the same parties as binding for interlocutory relief;
Balancing of convenience where non-quantifiable harm (risk to elderly residents, inability to access medical help) is asserted.
Still-open questions
The decision resolves the interlocutory question in this factual matrix, but leaves several substantive or doctrinal questions open for further litigation or judicial clarification:
Final entitlements and remedies: While Rees J restored practical access on an interim basis, the final determination of contested allegations (AVO breaches, alleged stalking) and whether those facts might justify a permanent alteration of easement rights or grant of alternative equitable relief remains for trial or further hearing.
Scope of 'reasonable means' and security measures: The judgment treats the installation of a keypad and selective provisioning of access as inconsistent with the prior holding that keys must not be exclusively held. The precise limits of permissible security measures that do not amount to an unlawful interference with an easement (for example, rules about notices, reasonable notice, specific access procedures) await fuller argument at final hearing.
Interplay of criminal or protection orders with easement rights: The defendants relied on safety and AVOs. The judgment indicates such matters cannot easily displace easement rights on interlocutory material. But a careful delineation of when police or court protection orders can justify temporary or permanent restriction of an easement holder's rights is unresolved on these facts.
Quantification of harm and damages: Rees J accepted that interference with an easement can imply damage; the precise assessment of damages (nominal or substantial) where access has been impeded, and when damages are an adequate remedy at final hearing, will require further adjudication.
Procedural thresholds for unclean hands at interlocutory stage: The decision emphasises the difficulty of establishing unclean hands on untested affidavits. Future cases may explore what specific evidentiary material at interlocutory stage is sufficient to establish unclean hands so as to defeat interim equitable relief.
Conclusion
Clough v Breen [2020] NSWSC 653 is a practical interlocutory application of settled doctrine: a prior judicial construction of an easement binds the parties and supports a prima facie right; interference with an easement imports damage for interlocutory purposes; mandatory interlocutory relief can be granted on the ordinary prima facie/balance of convenience test where refusing it would risk greater injustice. The decision is most useful as an applied precedent in neighbour-easement disputes where practical access is impeded and some factual disputes about misconduct remain unresolved.
Catchwords
[2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618Hare v van Brugge [2013] NSWCA 74
Hare v van Brugge (2013) 84 NSWLR 41[2006] VSCA 89
Warner-Lambert Co LCC v Apotex Pty Ltd (2014) 311 ALR 632
HER HONOUR: This is an application for interlocutory injunctive relief. The plaintiff and defendants are neighbours. The plaintiff, Christine Clough, seeks an order that the defendants, Douglas Breen and Tracey Dillon, provide her with a key to the access gate (the Gate) at Landing No 5 of the inclinator easement that encumbers her property at Moons Avenue, Lugarno, and that the defendants refrain from changing the lock on the Gate without her written consent. Ms Clough also seeks an order that the defendants restore the lock on the access door (the Door) to Landing No 5, being at the front of a garage and storage building, to its original condition or, if this cannot be done, that a new lock be installed and a copy of the key given to Ms Clough.
Ms Clough lives at her property with partner, Michael Rose. Her elderly father, aged 93, lives with them part-time or, when he is ill or needs assistance, full-time. Ms Dillon lives at the adjoining property with her 20-year-old son and her 16-year-old daughter. Ms Dillon says that, due to a decline in her husband's mental health, he has moved out of the family home. Mr Breen's mental health is said to have declined concurrent with his interactions with Ms Clough and Mr Rose. According to Ms Dillon, a "continued harassment campaign" delays Mr Breen's return to the family home.
[3]
The inclinator easement
An inclinator was installed and the inclinator easement created before either the plaintiff or defendants purchased their respective properties. The inclinator is located almost entirely on Ms Clough's land whilst some of its supports rest on Mr Breen and Ms Dillon's land. The inclinator easement creates a right of right of access which burdens and benefits both the plaintiff and the defendants' land. The easement is the subject of a learned judgment by Darke J in Breen v Clough [2017] NSWSC 1681. In that case, Mr Breen and Ms Dillon were the plaintiffs and Ms Clough was the defendant. As to the content of the right of access, Darke J held at [152]-[154]:
[152] Th[e] terms [of the easement] refer at the outset to a "right of access". By ss 181A(2) and (3) of the Conveyancing Act 1919 (NSW) that expression has effect as if the words attributed in Schedule 8 to the Act were inserted instead, unless varied by the terms of the instrument itself (whether by way of addition, exception, qualification or omission). The relevant words attributed in Schedule 8 are:
1. The owner of the lot benefited may:
(a) by any reasonable means pass across each lot burdened, but only within the site of this easement, to get to or from the lot benefited, and
(b) do anything reasonably necessary for that purpose, including:
• entering the lot burdened, and
• taking anything on to the lot burdened, and
• carrying out work within the site of this easement, such as constructing, placing, repairing or maintaining trafficable surfaces, driveways or structures.
2. In exercising those powers, the owners of the lot benefited must:
(a) ensure all work is done properly, and
(b) cause as little inconvenience as is practicable to the owner and any occupier of the lot burdened, and
(c) cause as little damage as is practicable to the lot burdened and any improvement on it, and
(d) restore the lot burdened as nearly as is practicable to its former condition, and
(e) make good any collateral damage.
[153] … the easement burdens both [Mr Breen and Ms Dillon's property] and [Ms Clough's property]. The easement also benefits both [Mr Breen and Ms Dillon's property] and [Ms Clough's property]. Accordingly, both [Mr Breen and Ms Dillon] and [Ms Clough] are owners of a lot benefited for the purposes of Schedule 8. Those persons thus have rights in accordance with paragraph 1(a) of Schedule 8 to pass across the lot burdened within the site of the easement, by any reasonable means. That plainly includes by use of the inclinator itself.
[154] Such use is qualified by the concept of reasonable use. The parties must exercise a degree of restraint in relation to the easement site, whether in exercising the rights of a dominant owner, or in exercising ownership rights as a servient owner. Neither party may exercise rights in a way that interferes unreasonably with the enjoyment of the other's rights (see Hare v van Brugge (supra) [(2013) 84 NSWLR 41; [2013] NSWCA 74] at [24]-[25]).
The final paragraph rewards close attention. The focus of Breen v Clough was the extent to which the parties were entitled to exercise the right of access for the purpose of repairs and maintenance of the inclinator.
[4]
The long standing problem
In Breen v Clough, Darke J noted at [2] that the inclinator and easement have been the focus of tension and conflict between the parties since 2010. A considerable amount of evidence was adduced in Breen v Clough by both parties concerning various incidents since 2010 but, whilst those events "shed light on the lamentable state of the relationship between the neighbours", almost none concerned the exercise of the right of access: at [225]. It was thus not necessary to make findings in respect of those incidents and Darke J declined to do so, "Indeed it is desirable not to do so, as any prospect that the parties may be able to peacefully co-exist in the future is only likely to be diminished by a public adjudication upon them": at [225]. His Honour observed that the neighbours were "infused with a great deal of bitterness and antipathy towards the other" and their evidence was thus significantly affected, perhaps subconsciously, by emotions and motivations of self-interest: at [165].
The conflict had its roots in attitudes held by Ms Clough and Mr Breen towards the inclinator. Ms Clough saw herself as the owner of the inclinator and jealously guarded her status as the person in whose name the inclinator was registered, and was intolerant of any suggestion that control should be shared with Mr Breen: at [170]-[171]. Mr Breen wanted to upgrade the inclinator and be involved in dealing with WorkCover NSW in addressing Improvement Notices which it had issued. The parties fell into serious conflict in relation to what was required in order to satisfy the Improvement Notices: at [13]. His Honour concluded that Mr Breen and Ms Dillon bore much of the responsibility for an impasse with Ms Clough, as their conduct was not in accordance with their duties under the easement: at [190]. Darke J found that the stance adopted by Ms Clough was not unreasonable, at least until 2015, but some of her conduct thereafter amounted to a substantial inference with Mr Breen and Ms Dillon's rights, in particular, Ms Clough was unwilling to make keys available to them: see [216] and [253]-[254]. In the result, Darke J largely dismissed Mr Breen and Ms Dillon's claims but ordered that Ms Clough remove a fence across a landing and, instead, install a lockable gate and provide a key to Mr Breen and Ms Dillon, and pay $6,000 in damages.
[5]
Recent events
According to Ms Dillon, relations between the parties have not improved. Whilst Ms Dillon's evidence encompasses incidents pre-dating Breen v Clough, I have confined my attention to events since. Ms Dillon describes remarks made by Ms Clough and Mr Rose following judgment in Breen v Clough, which may not have exhibited the spirit of good sportsmanship. Even accepting Ms Dillon's affidavit evidence, it appears that unkind remarks were made in both directions.
In August 2018, an interim apprehended violence order (AVO) was issued to Ms Clough for the protection of Mr Breen. An interim AVO was also issued to Mr Breen for the protection of Ms Clough. In August 2019, an AVO was issued to Mr Rose for the protection of the children of Mr Breen and Ms Dillon. The allegations leading to the issue of the AVOs are yet to be determined by the Local Court of New South Wales.
Ms Dillon described various interactions with Mr Rose and says that he is stalking her family and deliberately interferes with their use of the inclinator by leaving the inclinator car door ajar so that they cannot call the inclinator. This means that Ms Dillon must use the stairs instead. These allegations are flatly denied by Ms Clough and Mr Rose. Ms Dillon tendered video footage of Mr Rose apparently stalking her or moving the inclinator so they could not use it. On viewing footage, I did not find that it clearly demonstrated the behaviour complained of. Why Ms Dillon was filming Mr Rose at all was unclear. I am not in a position to determine on this application whether the allegations made by Ms Dillon, or the complaints made to the NSW Police, are true or not.
In February 2020, Mr Breen gave instructions to his solicitors to write to Ms Clough and Mr Rose advising that Mr Rose had been stalking them and using the inclinator car in a manner to harass and obstruct their access to the property. If this did not cease immediately, then Mr Breen and Ms Dillon would provide statements to the police with corroborating CCTV footage. However, the letter was not sent.
On 13 March 2020, Ms Dillon looked out her window and it appeared that the inclinator had stopped at Landing No 5. Shortly afterwards, Ms Dillon saw the inclinator travel down to Ms Clough's home. Ms Dillon became concerned that Mr Rose was in her garage. There is no evidence that Mr Rose was in the garage or, if he was, whether he was exercising the right of access. In any event, Ms Dillon spoke to her husband about changing the locks and Mr Breen suggested installing an access keypad on the Door instead.
[6]
Submissions
The plaintiff submits that she has more than a good prima facie case in aid of injunctive relief and suggests there is not much of a defence to the orders sought. There is no dispute that the easement exists and that it gives the plaintiff a right of way across the defendants' land to make use of the inclinator. While it may be permissible for the defendants to fence off their land, it is not permissible to block the plaintiff's access altogether by locking the gate: Gohl v Hender [1930] SASR 158; Hare v van Brugge [2013] NSWCA 74 at [25]; Breen v Clough at [256]. The plaintiff denies that she or Mr Rose have harassed anyone but submits that, if the defendants are of the view that the AVOs had been breached, then that was a matter that should be taken up with the NSW Police. It was submitted that the Court should grant the interim relief sought to maintain the status quo and Ms Clough's unchallenged right of access.
The balance of convenience was said to favour restoration of the right of access given that the plaintiff is in her 60s, her 93 year old father lives with her from time to time and, if the inclinator cannot operate for example because the door to the inclinator car has been left open at Landing No 5 or the inclinator car simply stops at Landing No 5, then the plaintiff's ability to gain access to and from her home is substantially impeded. The only other way to reach street level is via stone stairs. It was submitted that, due to the steepness and state of repair of the stairs, neither the plaintiff or her father are able to use them (I note that this submission travelled somewhat beyond the plaintiff's evidence). This has caused the plaintiff to not feel safe in her home.
The defendants did not accept that there was a serious question to be tried to justify the preservation of the status quo pending the trial: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] per Gummow and Hayne JJ. First, it was submitted that Ms Clough has not proved that there has been actual damage in respect of any private nuisance which has occurred on her property. The Gate is on the plaintiff's property. The plaintiff is the servient owner. Any assertion that locking the Gate was offensive to her rights must be established as a claim in private nuisance separate from any rights under an easement consistent with Kenneth Martin J's judgment in Staley v Pivot Group Pty Ltd (No 6) [2010] WASC 228 at [93] particularly:
…
(12) For the purpose of assessing arguments of private nuisance, the issue of reasonableness, in terms of the degree of interference, is to be assessed using common sense, taking account of all relevant factors in each case, including the ideas of reasonable people, the nature of the location of the land, as well as the character, duration and time of the interference and the effect(s) of the interference: Oldham v Lawson (No 1) [1976] VR 654 at 655 (Harris J).
(13) Because a complaint of private nuisance raises a cause of action in tort, actual damage must usually be proved. This is subject to an exception, however, where the interference is with an easement, or to a right of access: Walsh v Ervin [1952] VLR 361 at 364, 370 (Sholl J), as explained by Balkin RP The Law of Torts (3rd ed, 2004) at 474 - 475. The exception is grounded conceptually on the proposition that an easement holder has an absolute legal right to the enjoyment of the easement rights, so that any infringement of that right will imply damage, although the extent of the damage may only be nominal.
[7]
Applications for mandatory interlocutory injunctions
Drawing on my judgment in In the matter of A Twins Spare Parts Pty Limited [2019] NSWSC 1347 at [14]-[19], on an application for an interlocutory injunction, the question is whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction. As to whether there is a prima facie case, a plaintiff does not need to show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient to show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks: Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [87].
The second question is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions: Warner-Lambert Co LCC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59 at [70]; Mineralogy v Sino Iron at [87].
By her motion, the plaintiff seeks orders that the defendants refrain from certain actions, but also that the defendants perform actions, that is, fix the lock on the Door and provide her with keys. Thus it is appropriate to consider the principles which apply to granting mandatory interlocutory injunctions. The learned authors of Heydon, Leeming & Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed., LexisNexis, 2014) note at [21-395]:
… mandatory injunctions are comparatively rare. … The interlocutory mandatory injunction is particularly unusual. This is partly because a mandatory injunction is usually more onerous for a defendant to comply with than a prohibitory injunction. It is partly because the usual purpose of an interlocutory is to preserve the status quo, a consideration inapplicable to mandatory injunctions. But there is nothing to prevent a court from issuing an interlocutory mandatory injunction. …
In truth, a court hearing an application for an interlocutory mandatory injunction must apply exactly the same tests as it would in the case of an application for an interlocutory prohibitory injunction, not some different or more exacting test.
[8]
Conclusion
The final relief sought by Ms Clough in the summons is to permanently injunct the defendants from changing the key on the Gate without her consent and an order prohibiting the defendants from blocking her access to Landing No 5. As to whether the plaintiff has a prima facie case for such relief, we have the benefit of Breen v Clough. Not only does the plaintiff have a prima facie right of access through the Door and Gate, including a right to any key needed to operate the Door and Gate, Darke J has held that the plaintiff has such a right. His Honour's judgment has not been the subject of an appeal and binds the parties. The defendants acknowledge that they have interfered with the right of access.
As to why it is said that this does not amount to a prima facie case, the plaintiff does not sue on the tort of nuisance nor seek damages. The plaintiff simply contends that her right of access has been denied. In any event, Staley v Pivot Group observed that a suit in tort for private nuisance "usually" requires actual damage to be proved: at [93]. There is an exception, however, where the interference is with a right of access, in which case damage is assumed: at [93]. That exception would appear to apply here. Of course, whether damages are an adequate remedy is a factor to be taken into account in deciding whether an interlocutory injunction should be ordered. The plaintiff's evidence does point to damage in the form of an impingement on her ability to enjoy her own home. The fact that such damage is not readily compensable tends to suggest that an interlocutory injunction should be granted to stop it occurring.
The defendants' submissions in respect of unclean hands sought, essentially, a determination as to whether the events described by Ms Dillon in fact occurred and whether the plaintiff and Mr Rose have breached the AVOs. I am not in a position to make such findings on an application for interlocutory injunctive relief before a Duty Judge where no objection was taken to the affidavit of any witness, nor were witnesses cross-examined. Thus I conclude that the first requirement for an interlocutory injunction is satisfied.
Turning to the balance of convenience, the issue is whether the status quo to be maintained until a final hearing should be the status quo prescribed by the inclinator easement as interpreted by Darke J in Breen v Clough, or the new status quo implemented by Mr Breen said to be justified by the events described by Ms Dillon. It seems to me that the balance of convenience favours restoration of the right of access. Unless that right of access is restored, then the plaintiff's enjoyment of her home is impeded. Ms Clough cannot have her father stay if she wishes, or he needs to. Against that, the defendants say that they have been stalked and intimidated by the plaintiff and Mr Rose. Assuming for the moment that Ms Dillon's description of her interactions with Ms Clough and Mr Rose is generally accurate, then it appears that both households could improve how they behave towards the other by extending common courtesies, considerate use of the inclinator gates and car and respecting each other's privacy. But I am not satisfied that the events described by Ms Dillon are sufficient to justify impeding the plaintiff's right of access.
[9]
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Decision last updated: 28 May 2020
Orders made 19 May 2020: (1) defendants to deliver a copy of the key to the access gate at Landing No 5 to the plaintiff by 4.00 pm 19 May 2020; (2) defendants to refrain from further changing the lock on that gate without the plaintiff's consent or further order of the Court; (3) defendants to provide the plaintiff with the access code to the Door to Level 5 by 4.00 pm 19 May 2020; (4) liberty to apply on 2 days' notice; (5) costs reserved in respect of the plaintiff's Amended Notice of Motion filed 19 May 2020; (6) matter stood over to Equity Registrar for directions in respect of substantive proceedings (orders made on the usual undertaking as to damages).
In Breen v Clough, Darke J described the properties, easement and inclinators at [1], [8], [17] and [22]. These findings were supplemented by evidence in these proceedings, which was not contested. Both properties slope steeply down from Moons Avenue to the shoreline of the Georges River. The two lots are each about 100m in depth. The fall from Moons Avenue to the Georges River is in excess of 40m. The inclinator provides a means of travelling between Moons Avenue and the houses close to the shoreline. There are other easements which permit the owners of each property to exercise pedestrian access through a three level garage and storage building at street level and along a stepped pathway which runs along the side of Mr Breen and Ms Dillon's property close to the boundary with Ms Clough's property.
There are various landings, gates and fences associated with the inclinator shown on the survey plan accompanying the inclinator easement. Landing No 1 is at the bottom of the slope near the Georges River on Mr Breen and Ms Dillon's side of the track. Landing No 2 is the next landing on the way up the slope and also located on Mr Breen and Ms Dillon's side. Landings 3 and 4 are further up the incline and on both sides of the track. Landing No 5 is at the level of the garage and storage building which has Mr Breen and Ms Dillon's garage. Landing No 6 is at street level. The inclinator car can be called using call buttons located at or near the inclinator landings. If someone fails to properly shut the inclinator car door at any particular landing, then the inclinator car cannot be called to another landing.
Access from the garage and storage building to Landing No 5 is gained through the Door which opens into Mr Breen and Ms Dillon's garage. On entering through the Door and walking across the garage, using reciprocal rights of access, one reaches the Gate. When the Gate is opened, one can access the inclinator car from Landing No 5. Thus, using the right of access, Ms Clough is entitled to pass over Mr Breen and Ms Dillon's driveway through the Door and their garage to the Gate to use the inclinator, or in the reverse direction. According to the defendants' solicitor, Ms Clough, Mr Rose and their guests use Landing No 6 and the street entrance to access their home and generally do not use Landing No 5. According to Ms Dillon, "there is absolutely no reason that either of them need to be in my garage".
In Breen v Clough, it was Ms Clough who had the only key to an access gate to the inclinator and refused to provide a copy to Mr Breen and Ms Dillon. His Honour held that the right of access included a right to have keys necessary to use or maintain the inclinator. At [256]-[257]:
[256] The terms of the easement do not confer rights upon [Ms Clough] that are superior to those of [Mr Breen and Ms Dillon] in respect of the use and maintenance of the inclinator. I do not see it as consistent with the terms of the easement that only one party possess keys if that possession confers an ability to restrict the other party in relation to the use and maintenance of the inclinator.
[257] The easement contemplates a degree of co-operation between the owners of the benefitted lots and, as mentioned earlier, use of the easement is qualified by the concept of reasonable use. It is regrettable that the conflict and bitterness which has arisen between the owners suggests that a state of co-operation is unlikely to emerge, but it needs to be recognised that the parties' respective rights under the easement cannot be properly enjoyed otherwise.
Ms Clough now relies on this important passage in support of her submission that an order should be made for Mr Breen and Ms Dillon to provide her with a key to the Gate and the Door.
On 18 March 2020, Mr Breen changed the lock on the Gate. This prevented Ms Clough from accessing the Gate from the inclinator if she wished to or needed to. According to the defendants' solicitor, the Gate is locked only when the defendants are fearful for their safety. I was not much comforted by this broad assurance as I understand Ms Dillon's evidence to indicate that she is generally in this state of fear.
In addition, Mr Breen filled the door lock on the Door with epoxy glue, thereby disabling access to the Door through which Ms Clough had a right of access. Adjacent to the Door is now an access keypad. The defendants have provided the access code to the contractor tasked with maintaining the inclinator. There was no suggestion that the access code has been, or will be, provided to the plaintiff. As I understood it, these actions were taken to stop the alleged stalking and intimidation by Mr Rose of Ms Dillon and her family.
On 20 March 2020, the plaintiff's solicitor wrote to the defendants' solicitor noting that the lock had been changed on the Gate, referring to Breen v Clough at [256], seeking a key for the Gate and requesting that the lock on the Door be fixed. There was no response.
On 1 April 2020, the defendants' solicitor wrote to Ms Clough, not in response to the letter of 20 March 2020 but asking that the plaintiff refrain from accessing the defendants' property and access points unless absolutely necessary by reason of the COVID-19 pandemic.
On 7 April 2020, the plaintiff's solicitor wrote again saying that the lock on the Door remained full of epoxy and, unless Ms Clough was provided with a key to the Gate and the lock on the Door was fixed within seven days, she would seek injunctive relief.
On 8 April 2020, the defendants' solicitor responded, requesting that the plaintiff provide seven days' notice if she wished to use the right of access through their garage so that Mr Breen or an agent could be present. By this means, it was said that access would be provided on a reasonable basis. Ms Clough was asked to consider the health and wellbeing of all involved and confine her access to the gate, landings and stairs on her property. This was said to give the plaintiff full access to her property.
Failing this, we are instructed to inform your client that the Breens will fence off access to the landings on their property and adjacent stairs.
This will be reviewed in six months or earlier should the circumstances allow.
The letter thus envisaged that the defendants proposed to substantially alter the rights of access conferred by the easement and, if that was not satisfactory to the plaintiff, to fence off access altogether for some six months. It is hard to understand how the defendants thought their position would be acceptable or consistent with the right of access as definitively articulated in Breen v Clough. Further correspondence ensued which is not necessary to repeat.
On 1 May 2020, these proceedings were commenced. In respect of the motion for interlocutory orders, affidavits were sworn by Ms Clough, a surveyor, Ms Dillon and the parties' solicitors. Ms Clough recalled at least three occasions when the inclinator car was out of service and stuck at Landing No 5. If that were to happen now, neither Ms Clough nor the inclinator mechanic would be able to access it for maintenance purposes. More importantly, since these events, Ms Clough has felt it was unsafe for her father to stay with her. Due to his age, the inclinator is the only means of access to and from the street. Should the inclinator car break down at Landing No 5, or the door of the inclinator be inadvertently left open by the last passenger so that the inclinator car cannot be called, Ms Clough would not be able to get her father to street level, including in the event that he had a medical emergency. That evidence is unsurprising given the steepness of this block of land, such that it was necessary to install an inclinator in the first place. Ms Dillon says she has had to take the measures described in respect of the Gate and the Door in order to keep her family protected from the stress and trauma arising from interactions with Ms Clough and Mr Rose also already described.
Thus it was submitted that the Court must determine whether the changing of the lock on the Gate is an interference that would constitute a private nuisance on the land of the servient tenement. The Court must undertake an assessment of the reasonableness of the locking of the Gate by the defendants in circumstances of concern for their personal safety and that of their children, and only in circumstances where that safety is threatened. The locking of the Gate was said to be a reasonable action by the defendants and no action in private nuisance arose.
Further, where the interference takes the form of a private nuisance on the land of the servient tenement, then it was submitted that it is not sufficient to establish interference; actual damage must be proved by the plaintiff. Here, the plaintiff has not proved that she has suffered any damage. Although the plaintiff says her ability to maintain the inclinator has been impaired by the defendants' conduct, the defendants have provided a key and an access code to the technician who holds the maintenance contract in respect of the inclinator. Thus, there was said to be no risk that the inclinator would be unable to be maintained should it break down while at Landing No 5. Nor was there any risk that the maintenance technician will not be able to access the control panel in the defendants' garage. Nor was there any evidence that the defendants had ever left the inclinator car door open erroneously at the Gate, or any other landing which would have the effect of preventing the plaintiff from accessing the inclinator.
Second, the defendants submitted that the plaintiff had unclean hands such that an equitable remedy would be denied: Dering v Earl of Winchelsea (1787) 1 Cox 318 at 319 (Eyre LCB); Kation Pty Ltd v Lamru Pty Ltd (2009) 257 ALR 336 at [28] per Hodgson JA (with whom Allsop P agreed). The basis for changing the locks was said to be the fear and stress provoked by the conduct of the plaintiff and Mr Rose. It was submitted that such conduct was in breach of the AVOs in place to protect the defendants and their children and it was reasonable given the failure of the police to intervene when the conduct was drawn to their attention. It was submitted that the denials of Ms Clough and Mr Rose should not be accepted in light of the video evidence, and the evidence of Ms Dillon ought be preferred. Granting the relief sought was said to be akin to final relief and would expose the defendants to a continuation of the plaintiff's conduct. Thus the Court ought refuse the relief sought and thereby protect the defendants from this conduct and also enable the defendant to abate any breaches of easement or trespass or nuisance by the plaintiff and Mr Rose. It was submitted that if the orders were made, then the defendants would likely suffer damage.
The defendants did not suggest that the regulations or legislation in relation to the COVID-19 pandemic justified any restriction on the right of access. Rather, it was submitted, uncharitably one might think, that the plaintiff should not be looking after her elderly father in her home given restrictions on movement during the COVID-19 pandemic, especially for elderly people and the general shut down of nursing homes and retirement facilities.
The rarity of interlocutory mandatory injunctions was noted by J D Heydon in Heydon on Contract: The General Part (Lawbook Co, 2019) at [28.530]:
In part this is because interlocutory mandatory injunctions, by compelling the defendant to take positive steps, are more likely to inconvenience the defendant and cause the defendant harm less capable of being remedied by the plaintiff's undertaking as to damages if the plaintiff fails at the final hearing.
For this reason, the author referred to authority to the effect that in an interlocutory application for an enforcing mandatory injunction, the Court must feel "a high degree of assurance that at the trial it would appear that the injunction had been rightly granted": Shepherd Homes Ltd v Sandham [1971] Ch 340 at 351 per Megarry J.
This approach was considered by Hoffmann J (as his Lordship then was) in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680-1: (emphasis added)
The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the "wrong" decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong" in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.
… If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a "high degree of assurance" about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction.
In Australia, the test for a mandatory injunction is no different to an 'ordinary' prohibitive injunction. Nor has the requirement for "a higher degree of assurance" found wide acceptance. The authorities are canvassed and helpfully summarised by Newnes JA, with whom McLure P and Corboy J agreed, in Mineralogy v Sino Iron at [76]-[85]. His Honour concluded that no different standard applies. In short, Gummow J rejected the "high degree of assurance" test in Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 127; (1988) 82 ALR 499, noting at 503:
… it has long been the case that interlocutory mandatory injunctions would be more likely to issue where the defendant was compelled, not to embark upon a fresh course of conduct, but, as here, to revert to a course of conduct pursued before the occurrence of the acts or omissions that provoked the litigation.
See likewise Kiefel J in Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119 at 123; [1995] FCA 1405; Bingham v 7-Eleven Stores Pty Ltd [2003] QCA 402 at [108]; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 at [33]-[35] per Maxwell P and Charles JA; National Commercial Bank Jamaica Ltd v Olint Corporation Ltd [2009] UKPC 16 at [19]-[21] per Lord Hoffmann for the Privy Council.
For these reasons, I make the following orders and directions on the usual undertaken as to damages given by the plaintiff's counsel:
1. Order the defendants to deliver up to the plaintiff a copy of the key to the access gate at the landing of level 5 of the inclinator easement that encumbers the property known as 116 Moons Avenue Lugarno by 4.00 pm today, 19 May 2020.
2. Order the defendants to refrain from further changing the lock on the access gate at the level 5 landing of the inclinator without the consent of the plaintiff or further order of the Court.
3. Order that the defendants provide the access code to the door to level 5 of the inclinator landing, being at the front of the garage and storage door, to the plaintiff by 4.00 pm today, 19 May 2020.
4. Grant liberty to the parties to apply on 2 days' notice.
5. Reserve all questions of costs in respect of the plaintiff's Amended Notice of Motion filed on 19 May 2020.
6. Stand the matter over to the Equity Registrar at 9.30 am on Monday 25 May 2020 for directions in respect of the substantive proceedings.