Clough v Breen (No.7) [2025] NSWSC 344 | Case summary | Zoe

/

/

Clough v Breen (No.7) [2025] NSWSC 344 | Case summary | Zoe

In Order 6 of the Orders made with Clough No.6, the Court ordered that the defendants, Mr Breen and Ms Dillon pay $161,500 by way of a specified gross sum in satisfaction of Order 2 of the Orders made on 9 April 2024. This figure was fixed as the result of the application a range of discretionary judgments deployed in the exercise of the Court’s broad costs jurisdiction under Civil Procedure Act 2005, s 98(1) and (4)(c).
The Court of Appeal’s decision set aside the declaration in Order 1 and set aside Order 2 of the orders made on 19 December 2022 with the Court’s second judgment: Clough v Breen (No.2) [2022] NSWSC 1759. The declaration on 19 December 2022 had been that Easement I did not authorise the defendants to place maintain or use the CCTV camera at the storage area below Landing 5. The order was for the removal of the camera. The defendant removed the camera in response to the order.
In lieu of that declaration and that removal order on 19 December 2022, the Court of Appeal declared that the defendants are authorised by Easement I to place, maintain and use the CCTV camera installed at the storage area level below Landing 5 on the area of the plaintiff’s land that is burdened by Easement I.
This in substance reversed the Court’s decision at trial level in relation to what became known as the Storage Area Camera Issue. Recognising this reversal, the Court of Appeal made consequential orders concerning the contest in the Court of Appeal (in which an appeal against other determinations at first instance had been abandoned) and ordered the respondent to the appeal (Ms Clough) to pay the applicant’s costs of the argument in the proceedings at first instance in relation to the Storage Area Camera Issue. This also reversed the costs order made at first instance in favour of Ms Clough in relation to the Storage Area Camera Issue.
At the time of the Court of Appeal’s decision, these proceedings had been concluded at the trial level, including by the granting of relief consequential upon the Court’s primary findings, by the making of costs orders, and by the fixing of a specified gross sum costs order under Civil Procedure Act 2005 s 98(4)(c). The exercise of the Court’s general costs discretion under s 98(1) and its s 98(4)(c) discretion had involved a complex balancing exercise at several levels of consideration, to reach a final figure of $161,500 payable by the defendants to the plaintiff.
In Clough No.5, the Court had made a combined order for the payment of the costs of the whole proceedings, accounting for the relative success of the parties on the claim and the Cross-Claim, to avoid the time-consuming task of separating out the costs of the claim and the Cross-Claim at a costs assessment: Clough No.6 at [53]. That resulted in an order that the defendants pay 60% of the plaintiff’s costs of the proceedings incurred up to Clough No.5.
Then in Clough No.6, the Court considered what an appropriate reduction in the fees claimed by Ms Clough should be on account of the contentions by the defendants that Ms Clough’s claimed fees would have been substantially reduced on assessment due to excessive or unnecessary legal fees and disbursements. That led to the following final reasoning in Clough No.6:

Now the Court is being asked to factor in the reversal of the result of the Storage Area Camera Issue. This introduces both a variation to the percentage figure that was fixed in Clough No.5, and a re-examination of the various discretionary judgments that the Court made when discounting Ms Clough’s claimed fees in Clough No.6.
In her affidavit of 2025, Charlotte Morson, the solicitor for the defendants, undertakes an analysis of the costs incurred in relation to the Storage Area Camera Issue. Her methodology concludes that the total cost incurred by the defendants in relation to that issue was a $30,823.65 inclusive of GST. The defendants say that a sum of $25,000 should now be considered as payable to the defendants. Ms Morson’s affidavit also developed a methodology which seeks to isolate the plaintiff's costs of the Storage Area Camera Issue and concludes that $19,924.83 inclusive of GST should be attributed to this issue among the plaintiff's costs and that $10,000 should be deducted from those costs.
Ms Morson's methodology involves analysis of the pleadings, the lay and expert evidence on both sides, the report of the defendants' expert, Mr Tremain, the parties’ submissions, the scope of works for removal of the CCTV camera in the storage area and the time attributed to the costs argument on the issue. She undertakes an analysis of the invoices for professional fees and supporting timesheets and forms her own view about items of work which she says should in whole or in part be attributed to the Storage Area Camera Issue. She undertakes a similar task in relation to the plaintiff's costs on that issue.
Ms Morson professes to take a "broadbrush" approach. Whatever the approach is, in the Court’s view the figure she reaches is too high when this issue is judged in relation to all the other issues in the proceedings. Moreover, identification of the primary costs said to be incurred in relation to this issue must still go through a number of iterations before reaching an appropriate component of the Court’s final specified gross sum costs order of $161,500 in Clough No. 6.
In contrast, Ms Clough submits that the Court should adjust the gross sum costs order by reducing the sum by $9,000. That figure is said to represent the cost of one day for the defendants' leading counsel to work up the issue and one day to argue the issue. Ms Clough submits that this is more time than it would actually have taken to prepare for this issue, noting that the argument did not involve any factual dispute. Ms Clough's argument is critical of Ms Morson's methodology in various places. It is not necessary for the Court to traverse that methodology in these reasons. Ultimately, this Court has reached the view that Ms Clough’s figure of $9,000 is too low and the defendants' figure of approximately $35,000 is too high.
The parties’ submissions on this issue also debate the proper construction of order 6 of the Court orders made with the Court of Appeal's decision. Ms Morson interprets the order as having the consequence that the plaintiff is now to pay the defendants' costs of the Storage Area Camera Issue and that the plaintiff is no longer to be entitled to a credit for her costs of that issue. The submissions on behalf of Ms Clough emphasise that the orders of the Court of Appeal simply say that the plaintiff is to pay "the costs of the argument" at first instance. In the Court’s view, there is very little difference between these two positions. The Court accepts the defendants’ construction of the Court of Appeal’s order and has taken it into account in this reassessment of the specified gross sum payable.
The present task should be approached globally. It introduces an artificial degree of mathematical precision to try and re-examine each of the judgments involved in fixing the original 60% cost will figure in Clough No. 5 and each of the discounts applied when exercising the s 98(4)(c) discretion in Clough No. 6. It is simpler for the Court, being conscious of those various steps that led to the $161,500 figure, to evaluate the significance of the reversal of the decision on the Storage Area Camera Issue within the context of the overall exercise of the costs discretion that has already been undertaken.
The Storage Area Camera Issue did not take much time. It was argued with other issues. A separate judgment was given on that issue because it involves a legal question which could be dealt with separately first without deciding contested facts, not because the question involves a significant amount of time. But some costs incurred on this issue which had previously been considered as being payable to Ms Clough would now be payable by her.
Doing the best it can, the Court would reduce the existing lump sum costs order in favour of the plaintiffs by $11,500 taking into account the reversal of costs on the Storage Area Camera Issue. Therefore, the specified gross sum order for costs in favour of the plaintiff against the defendants will now be $150,000.
One more monetary adjustment is required in relation to the Storage Area Camera Issue. The defendants, Mr Breen and Ms Dillon, submit that they should be compensated for the costs of removal and replacement of the storage area CCTV camera. This follows from the reversal of the orders of 19 December 2022 and the Court accepts this submission. The defendants say that the costs of engaging an electrician to remove the camera was $200 and the costs of replacing it will be of the same order. These sums seem reasonable, and the Court will order Ms Clough to pay the defendants $400 on account of the wasted costs in removing and replacing the storage area CCTV camera.

Ms Clough does not accept that the defendants’ camera on Landing 6 does not have an enabled microphone. She says that the type of CCTV camera Mr Breen is using is a Hikvision CCTV camera, a brand for which all models have inbuilt microphones permitting the recording of conversations. This is contrary to what Mr Breen says.
The Court has no way of deciding between these two competing versions without hearing expert evidence. At this stage of these proceedings such expenditure is not readily warranted. The Court will not require the parties to call expert evidence but is prepared to accept Mr Breen's evidence on the subject which would require no further action. However, Ms Clough would be at liberty to challenge that by requesting an expert to attend and examine the camera. If it turns out that the camera is "not fitted with either an internal or external microphone”, as Mr Breen deposes then the cost of that expert being engaged will be borne by Ms Clough. But if it turns out, as Ms Clough asserts that this Hikvision camera does have an inbuilt microphone, even if it is disabled, then the defendants will pay the cost of the expert coming to inspect the camera on Landing 6 and for permanently disabling the microphone in that camera.
But this logic works both ways. The defendants complain about the timber obstruction that Ms Clough has placed on her property to prevent the camera seeing the entrance to Landing 6. In the Court’s view, the placing of this obstruction is at one level legitimate action by Ms Clough on her property. But it also deliberately obstructs the vision of the camera erected by the defendants on Lot 118 and thereby acts as an intentional deterrent to the defendants freely using the easement. Within the Prospect County Council v C**ross principle cited above, Ms Clough should not be free to impose a cost upon the defendants using the easement. The cost that is imposed upon the defendants is that because of this obstruction they must take additional steps beyond looking at their camera to decide when it is safe and convenient to use the easement. If the camera has no vision, they may not be able to see who was at Landing 6 to decide as to when to use the easement. The Court will therefore order it to be removed.
Ms Clough, must herself, also honour the same principle of which she has taken advantage in disabling the microphone on the defendants’ camera on Landing 6. If she is to be permitted to take further steps to verify that the defendants’ microphone at Landing 6 has been disabled then before that she will have to disable her microphone at the same place, if it is presently enabled. The same logic about not recording conversations would apply both ways.
The second related issue which Ms Clough raises is that she seeks various other cameras operated by the defendants to have their capacity to record sound disabled. She requested the cameras pointing onto her property from Lot 118, at her driveway, at the top of the spiral staircase leading down from the street on Easement D, and on the Landings to levels 5,4 and 3 and the levels on the Landing 5, Landing 4 and Landing 3 and the camera between Landing 1 and Landing 2, should be disabled from being able to record sound if they have that capacity.
Landing 6 has been in issue in these proceedings between the parties for some time and has been treated as something of a special case. Disabling microphones elsewhere is an expansion of existing issues. Mr Breen points out in his evidence that one of the reasons he has microphones at these other landings is to deter aggressive confrontations arising between the parties. Confrontations have taken place at some of these locations but not at Landing 6. The Court accepts that microphones at these other locations could arguably have the effect for which Mr Breen contends. That neutralises in these locations the argument used at Landing 6 that the microphones deter usage of the easement. Therefore, the Court does not propose to make orders about microphones at or near these other landings.
But there is an obvious solution to this issue. The default position is that the microphones at these other locations will remain the way they are. The parties can agree to eliminate microphones near the other landings, but they should do so equally on both properties with a verification mechanism. But the Court is not prepared to order that; the parties will have to agree. The parties should perhaps discuss this matter and if they provide mutually agreed short minutes of order to the Court for a precise regime for removal of sound recording capability on cameras on both sides of the common boundary near these other locations then the Court will make orders in accordance with their agreement.
The last remaining issue relates to lighting on cameras used on the defendants’ property. This involves a new issue which is presently not pleaded. These properties are close to one another. Ms Clough’s cameras use infrared lighting, so they do not emit a white light at night. Ms Clough’s evidence is that the defendants’ cameras, use bright light which is directed in a beam concentrated towards Ms Clough’s property. Mr Breen’s evidence on the other hand is that the photographs on which Ms Clough relies, taken at Landing 3 and Landing 4, have incorporated a distortion effect making the light appear brighter than it is on the ground. He says that the lights from the CCTV cameras he is using at these locations “give off a soft incandescent light”.
This is a new issue, which the Court does not have to resolve. The Court endeavours to have parties such as these to resolve all their differences, as they must live alongside one another. But there is a limit to how flexible the Court can be about this objective. This issue has not been pleaded. The Court has in several judgments given extensive reasons resolving costs issues and consequential issues between the parties. This issue crosses a logical line: this is a complaint of nuisance, which is not connected with the inclinator easements which have been the subject of the rest of the proceedings.
The Court is not a general problem-solving helpdesk for these parties. The Court will deal with pleaded issues. If Ms Clough wishes to raise this issue, then she can apply by motion within seven days to amend the pleadings to plead it. But it will be treated as an entirely separate and new issue. An excessive and unreasonable bright light directed at Lot 116 from Lot 118 could arguably amount to a nuisance. There may be a cause of action here, but the matter is clearly strongly contested and that cause of action could also fail.
If the parties wish to go into this issue, they should do so conscious of its separate costs consequences. A preliminary question exists as to whether leave to amend to raise this issue should be given at this late stage of the proceedings. Mrs Clough will have to apply by motion for leave to amend.
Were these parties more amenable to compromise, they might be able to agree to put infrared lights in particular locations, or to regulate the intensity of some camera lights. In a rational environment this issue could easily be mutually solved with a modicum of cooperation. If leave to amend is granted, this looks more like an issue which should be referred to mediation. These parties may one day show they are capable of rationality and even magnanimity in small things such as this issue.

The parties are in dispute about whether interest will be payable on a costs judgment arising out of certain Local Court proceedings between the parties. This issue does not arise directly from these proceedings. But it is before the Court. Both parties wish the Court to deal with it, with the aim of ending all remaining disputes between them.
The defendants have been entitled to a judgment of the Local Court in the sum of $31,612.95 since 9 December 2021. Interest after judgment under Civil Procedure Act 2005, s 101 has accumulated since then in the agreed sum of $9,065.01. The Local Court judgment originates from a costs order made in favour of the defendants against the plaintiffs in proceedings brought in this Court that came before Wilson J (proceedings 2016/178506). This was a dispute concerning inclinator invoices. The Local Court judgment resulted from an application that the defendants made before Wilson J for their costs. The Local Court judgment includes a sum had paid to a costs assessor and to a review panel who reviewed the quantum of costs.
The Local Court judgment became connected with the proceedings before Darke J which resulted in Darke J's 2017 judgment. Wilson J connected the two proceedings by ordering on 2 November 2016 in the proceedings before her Honour that costs in those proceedings would be "cost in the cause of the proceedings" before Darke J.
The defendants claim that they should be entitled to recover interest on the unpaid Local Court judgment in these proceedings.
Ms Clough acknowledges that she owes the defendants the judgment sum of $31,612.95. But she contends that this amount should not incur interest. She bases her submission in part upon orders made by this Court on 14 June 2022. During one of the hearings before this Court, on that date Mr O'Connor reported that Ms Clough had received an examination order from the defendants in relation to the Local Court judgment. The Court enquired of Mr Maghami, counsel for the defendants, as to what was going on and was told the defendants were exercising their rights to enforce the Local Court judgment. The Court wanted to take control of these proceedings and eliminate the aggravation that would occur through the parties conducting collateral proceedings. The Court emphasised to the parties at that time that the proceedings were being determined in one place, in this Court. The Court made it clear that it did not want "collateral proceedings being pursued by either side". Both parties accepted the advantages of this to each of them. The Court ordered the parties to do nothing to pursue action on for the assessment of costs on the Local Court judgment, until judgment was given in these proceedings. That was accepted by both sides. The present issue appears to be disagreement about what the interest consequences of that order should be.
Ms Clough submits that because the Court’s order places a hold upon those Local Court examinations continuing, that neither party should not have to pay interest.
In the alternative, Ms Clough submits that if interest is payable on the outstanding amount after the Court has adjusted Order 6 in Clough No. 6, then there is no reason why the defendant should not be required to pay interest on the corresponding amount due from the defendants to the plaintiff.
The defendants submit that interest is payable on the Local Court judgment because that is provided for by statute unless the Court otherwise orders and there has been no award to the contrary: Civil Procedure Act, s 101(4). The defendants further submit the Court should not now make an order to the contrary because of the significant effluxion of time since the judgment in the Local Court proceedings and the separate nature of the Local Court judgment.
The full amount of interest on the Local Court judgment is payable by Ms Clough to the defendants. The Court will not make any order under Civil Procedure Act, s 101(4) to prevent interest running. The Court’s Orders in June 2022 were directed to trial management, to prevent oppression of the parties through collateral proceedings, and to ensure that the parties were focused on the main issues in these proceedings in the Supreme Court. The making of those orders had no effect on the running of interest. Interest should still run until the principal amount due is paid. The Court’s orders did not prevent Ms Clough from paying the amount due whenever she wished. The cause of the delay is not a factor in deciding whether interest should run. The defendants have been out of their money and should be compensated in accordance with the prescribed rates under Civil Procedure Act, s 101(7).
Ms Clough's alternative position was that if interest was payable on the Local Court judgment to the defendants that she should also have interest on the amount now determined by the Court to be payable for costs as a result of this judgment. There is no good reason for the Court not to take that course. Interest on costs should run for the benefit of both parties. Ms Clough's affidavit evidence establishes that she has paid her legal representatives more than she has been awarded in her favour in this judgment. She should therefore have interest on the whole of the costs are awarded in her favour in these reasons, from the time she paid at least $150,000 to her lawyers on account of costs.
The parties will need to agree upon the quantum of offsetting interest on costs, both as to methodology and quantum. It should not be difficult. The Court will direct the parties to endeavour to agree on this. If they cannot, then they should provide their respective calculations and submissions to chambers. Ordinarily interest on the Local Court judgment will run continuously from the time the Local Court judgment was entered. Interest on Ms Clough's costs will run from the time when the costs were paid.
It is important that the two offsetting interest calculations are undertaken to the same date, which for convenience could be the date of this judgment. The Court will require the parties to provide the calculations within seven days so that their agreed joint calculations, or their competing calculations, are dealt with promptly.
This should be sufficient guidance for the parties to reach agreement on offsetting interest.

Although the Court made orders limiting costs on this application to a maximum of no more than $3000 pursuant to Uniform Civil Procedure Rules 2005, r 42.4, the Court has ultimately reached the view it should make no order as to costs. Ms Clough submits that each party should bear their own costs of this application. This is partly because it is said that the conduct of the defendants has been oppressive to her by forcing her to trawl through documents to analyse Ms Morson’s affidavit and to seek to correct its errors, and there were some mathematical errors.
But that conclusion can be reached for another reason. The adjustment figure which the Court has reached is much closer to (although more than) the figure advanced by Ms Clough than the figure advanced by the defendants.
For these reasons the Court makes the following orders.
The Court:
ORDERS that ORDER 6 of the orders made on 18 December 2024 be varied by deleting the sum of $161,500 and substituting for that sum the sum of $150,000, which will be the specified gross sum for costs made in satisfaction of Order 2 of the Orders made on 9 April 2024, adjusted for the decision of the Court of Appeal in Breen v Clough [2024] NSWCA 316.
ORDERS the plaintiff Ms Clough pay the defendants $400 on account of the wasted costs of the defendants in removing and replacing the storage area CCTV camera consequent upon the decision of the Court of Appeal in Breen v Clough [2024] NSWCA 316.
ORDERS that the defendants pay the plaintiff the sum of $1,947.84 in respect of interest on the award of damages to the plaintiff in her respect of her claim for trespass and nuisance in Order (1) of the Court’s Orders made on 9 April 2024.
ORDERS Ms Clough to remove the obstruction placed on her property to inhibit vision through the defendants’ Landing 6 camera within 14 days.
GRANTS liberty to Ms Clough (provided she has first complied with ORDER 4 and she has verifiably disabled any of her own camera microphones at Landing 6) to engage a suitably qualified technical expert initially at her expense to inspect the defendants’ camera located on Lot 118 near Landing 6 to determine whether (a) it has a microphone, and if so (b) whether that microphone is presently operational, and if either (a) or (b) is shown to apply, then