Clough v Breen & Anor

Supreme Court of NSW|2022-09-20|Before: Slattery J

Judgment

This is my second judgment in these proceedings. In my first judgment the Court settled a complex interlocutory regime to stabilise the conflict between these two parties, pending the Court making a final determination of the issues between the parties: Clough v Breen & Anor [2022] NSWSC 1026 ("the interlocutory judgment"). Neither party has relisted the proceedings since the interlocutory judgment.
As was indicated in the interlocutory judgment, the parties have regularly litigated their differences in this Court: Breen v Clough [2017] NSWSC 1681; Breen v Clough [2018] NSWCA 172; and Clough v Breen [2020] NSWSC 653. These judgments set out most of the relevant background facts, decide the issues contested in the past and analyse the terms of the easements.
During argument, the Court raised the issue whether it may be useful to determine several legal issues, before giving a final decision on the contested facts relating to several incidents litigated between them. Four issues were posited as candidates for such early determination. In the end the Court considers that only one of these issues can be decided early. This second judgment deals with only the limited facts necessary to resolve this issue that relates to the construction of the terms of the easement and some uncontested facts relating to a fixture on the easement. A more detailed explanation of the operation of the easements will be included in the Court's final judgment.
This judgment should be read with the interlocutory judgment. Events, matters and persons are referred to in both judgments in the same way.

Background and The Threshold Issues for Decision

As was explained in the interlocutory judgment, Ms Christine Clough, is the registered proprietor of the land known as Lot 116. The defendants, Mr Breen, and Ms Dillon, are the registered proprietors of the adjacent Lot 118. Both lots have a narrow frontage to their local street and a wider frontage at the Georges River high water mark. Both lots fall away steeply at first from the street and their landform becomes less precipitous as they approach the Georges River.
Multiple easements created by an instrument under Conveyancing Act 1919, s 88B control the use of Lots 116 and 118. The inclinator is physically located on Lot 116 but is accessible by the defendants under the terms of one of the easements from Lot 118 at multiple points along the long common boundary between Lots 118 and 116.
Only three of these easements are in contest in these proceedings. These three easements have been conventionally identified in the proceedings by reference to their names on the s 88B instrument, as "Easement A", an easement for a right of access using the inclinator and an associated easement for services, "Easement I" being another easement for services, and "Easement J", an easement to permit an encroaching structure to remain.
The Court suggested the early determination of some threshold legal issues and raised the possibility of orders being made under Uniform Civil Procedure Rules, r 28.2 ("UCPR"). But there ultimately seemed to be little point in the Court making a UCPR, r 28.2 order because the threshold legal issues isolated for possible determination would not resolve the whole proceedings and neither party wished to appeal from an adverse determination of these issues. So, the Court has not made such an order. But it was considered potentially advantageous if some of the issues between them could be resolved earlier.
The putative threshold issues for determination were posited as follows: 1. whether the Lot 118 owner is entitled upon the true construction of the s 88B instrument and in the events which have occurred to enter any part and if so which part of Lot 116 for the purpose of exercising rights under Easement A; 2. whether the Lot 118 owner is entitled upon the true construction of the s 88B instrument and in the events which have occurred to require that the inclinator located on Easement A be replaced by the inclinator described in the Railius Pty Ltd quotation dated 20 December 2019; 3. whether the Lot 118 owner is entitled upon the true construction of the s 88B instrument and in the events which have occurred to install and maintain a CCTV camera within Easement I ("The Storage Area Camera Issue"); 4. whether the Lot 118 owner is entitled upon the true construction of the s 88B instrument and in the events which have occurred to access the inclinator call switch on Lot 116 at landing station 1 pursuant to Easement J ("The Landing 1 Call Button Issue"); and 5. whether the Court is precluded from deciding any of questions (a) to (e) by doctrines of res judicata, issue estoppel, or Anshun estoppels that are operative by reason of the decision of Justice Darke (Breen v Clough [2017] NSWSC 1681 (2017 Decision)).
Mr Maghami has submitted on behalf of Mr Breen and Ms Dillon that issues (1) and (2) cannot be decided in a vacuum. This submission is persuasive. These issues require the Court to resolve several contested matters of fact to decide whether the conduct in question is or is not authorised under the easement. The parties will not be assisted by general declarations of what is possible under the easements, without specific reference to events that are said to be authorised or unauthorised. Issues (1) and (2) will need to be decided at the trial with the other remaining factual and legal issues.
The contentions in relation to issue (3) should also be decided once the credit of the parties and the overall operation of the easement has been assessed. Mr Breen and Ms Dillon had originally based their claim to access the call button at landing 1 based on their rights pursuant to Easement J, which permitted encroaching structure to remain. Ms Maghami correctly recognised that such an argument was untenable, as Easement J is only directed to permitting the overhang of encroaching structures and the repair of those structures and does not authorise access by the owners of Lot 118 to the call button on Ms Clough's land near landing 1 to call the inclinator.
Mr Maghami reframed Mr Breen's and Ms Dillon's argument as one based on the express and ancillary rights conferred pursuant to easement A (Right of Access (Inclinator) and Easement for Services). But this reframing meant that the decision about accessing the call button at landing 1 involved making judgments about ancillary rights and the reasonableness of the use by the owners of Lot 118 of the call button on landing 1 to call the inclinator to that landing, which could not be decided separately from the wider issues about the credibility of the parties and the reasonableness of using various parts of the easement.
Therefore, the Court will defer deciding issue (4), the Landing 1 Call Button Issue with the final issues. But issue (3), the Storage Area Camera Issue has no such difficulties. It can be decided now.

Issue (4) - The Storage Area Camera Issue.

Mr Breen and Ms Dillon claim Easement I entitles them to maintain a CCTV camera that Mr Breen installed on Ms Clough's property. Ms Clough says that the defendants had no right to keep a camera there and it should be removed.
The Facts. Mr Breen installed a CCTV camera high up on a wall at the storeroom level that is immediately below landing 5. The camera is positioned within the area of Easement I on Lot 116. It operates to provide vision of the passageway area outside the two storage rooms below landing 5. The aim of installing the camera is so that Mr Breen and Ms Dillon can see persons entering and exiting the storage rooms and congregating in the passageway outside the storage rooms, which leads up to the landing 5 level by a metallic spiral staircase. This will allow Mr Breen and Ms Dillon to decide when to go to the storage area without finding other people congregating in the same place. The cabling from the CCTV camera installed on Lot 116 is connected to a CCTV monitoring system inside Lot 118. For its operation the CCTV camera uses electricity which has been supplied to Lot 118. But the CCTV camera is not otherwise connected to any external service provider of security monitoring services. The CCTV camera essentially operates to provide to the occupants of Lot 118 with vision of events on a part of the easement burdening Lot 116.
Mr Breen did not consult Ms Clough before installing the CCTV camera. Ms Clough has objected to the CCTV camera from the time it was installed. Mr Breen refused to remove the camera despite requests and the claim in these proceedings to do so. Ms Clough boxed the camera in so that it could not be used to provide any images for the benefit of Lot 118. There the position remains.
Easement I in the plan and the s 88B Instrument is an easement for services. Its terms are, by virtue of Conveyancing Act, s 181A those contained in Conveyancing Act, Schedule 8, which for Easement I have not been varied by the s 88B Instrument.
The Applicable Provisions of Easement I. The terms of the expression "easement for services" are fixed by the operation of Conveyancing Act, s 181A(2), as if the words attributed in Conveyancing Act, Schedule 8 to that expression were inserted instead of the words "easement for services". The meaning given to an expression in Schedule 8 may be varied by the instrument in which the expression is used. But here the statutory terms of the easement were not varied by the s 88B Instrument.
The relevant statutory terms of Schedule 8 Part 11 are as follows: "Part 11 Easement for Services 1. The owner of the lot benefited may-- (a) use each lot burdened, but only within the site of this easement, to provide domestic services to or from each 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, such as constructing, placing, repairing or maintaining pipes, poles, wires, cables, conduits, structures and equipment. 2. In exercising those powers, the owner 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. 3. For the purposes of this easement, "domestic services" includes supply of water, gas, electricity, telephone and television and discharge of sewage, sullage and other fluid wastes."
The Submissions. The written submissions put on behalf of Mr Breen and Ms Dillon framed their argument that the CCTV be camera was authorised by Easement I were as follows: "24 It is not in contention between the parties that the CCTV camera installed by the Breens at the storeroom landing is within the site of easement "I". The only question is whether a CCTV falls within the definition of "domestic services" as defined. 25 The definition provided for in Sch 8 is not an exhaustive one - so much is clear by the use of the word "includes". The Breens contend that the Court should interpreted the term broadly and find that in this day and age, a CCTV camera is certainly a 'domestic service' for reasons including safety and security, as well as control and management of the Inclinator, in this particular instance - monitoring the movements of the Inclinator car, whether its door is closed, whether its occupied, operation or out of service, without the need to have to physically inspect the Inclinator.
These written submissions were elaborated in oral submissions. Ms Clough put the following argument in reply in the written submissions: "The plaintiff submits that a CCTV system is not a "domestic service" within the meaning of Part 11, Sch 8 of the Conveyancing Act 1919 (NSW). 12. Importantly, the relevant right is to use the lot burdened "provide domestic services to or from" the lot benefited. A "service" is something that is provided by an outside supplier to the lot benefitted. It does not embrace a facility set up by the lot owners on one part of the lot (or, here, in order to benefit another part of the lot. An internal CCTV system is such a facility. It is not a "service" that is "provided" "to or from" the lot benefitted. 13. That interpretation is strengthened by the other terms of the definition, which states that "domestic services" "includes" "supply of water, gas, electricity, telephone and television and discharge of sewage, sullage and other fluid wastes." The word "include" tends to indicate that the definition is non-exhaustive; however, having regard to the examples listed, it would not appear to be intended to expand the meaning of "domestic services" beyond its natural and ordinary meaning in any event.9 That is, a "service" is something provided to the benefitted lot by somebody else from somewhere else.
Consideration. Ms Clough's argument is the more persuasive on this issue. The language of Schedule 8, Part 11 is clear: the "easement for services" is an easement to use the burdened Lot "to provide domestic services to or from each lot benefited". To qualify as "services" within the Part 11 definition the services must answer the description of being "domestic services" and must be services "to or from each lot benefited". The CCTV camera and associated cabling at the storeroom landing level do not qualify, as they are neither "domestic services" nor are they services "to or from each lot benefited".
As was submitted on Ms Clough's behalf, the whole statutory definition of "easement for services" connotes the idea of "something that is provided by an outside supplier to the lot benefitted". "Domestic services to or from each lot benefited", lie outside the use to which the owners of Lot 118 seek to put the CCTV camera - to observe what is happening on the land burdened by Easement I.
The word "domestic" in the composite expression "domestic service" takes its ordinary English meaning "of or pertaining to the home, the household, or household affairs" (Macquarie Dictionary). Importantly the expression "service" in that composite expression is not in context the primary meaning of the word "service", which is "an act of helpful activity" (Macquarie Dictionary). In the context of this easement that makes no sense. How could a "helpful activity" be configured in an easement "to or from the lot benefited"?
But the next several commonly accepted meanings of "service" in Australian usage, identified in the Macquarie Dictionary are all potentially applicable here. The second Macquarie Dictionary meaning is "the supplying or supplier of any articles, commodities, activities etc required or demanded". This is not particularly apt here when no dealing takes place between Lot 116 and Lot 118, because at base in this meaning is transactional, implying that one person requires or demands articles, commodities, activities from another.
The group of the third, fourth and fifth Macquarie Dictionary meanings are the most apt here. The third Macquarie Dictionary meaning is "the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones or conveyance". The fourth Macquarie Dictionary meaning is "the organised system of apparatus, appliances, employees, et cetera for supplying some accommodation required by the public". The fifth Macquarie Dictionary meaning is "the supplying of or a supplier of water, gas or the like to the public". Various subsidiary meanings are then identified in the Macquarie Dictionary, none of which are contextually appropriate to this easement.
This group of meanings all import similar ideas of commercial activity supplying something required by the public because it is commonly useful, such as public utilities gas, electricity, water, and the like. A CCTV camera placed on land burdened by an easement primarily to observe what is happening on the burdened land does not qualify as a "service" within any of these accepted meanings, although it can be accepted that it probably can be described as a "domestic" activity. A CCTV camera placed and used as this one is does not have the necessary connection with commercial and utility services demanded by or and supplied to the public. The activity in question is individual, discretionary, private, and not a part of something demanded by the public.
But the additional qualification "to or from each lot benefited" also excludes the placement of a CCTV camera on the burdened lots for this purpose. The words "to or from each lot benefited" needs to be interpreted within the structure of this easement. They neither say nor mean "to or from" just the burdened lot to the benefited lot. Consistent with the meaning of "domestic service" as here interpreted, the words "to or from each lot benefited" connote a "service" that at least enters, leaves, or somehow accommodates the benefited lot from a public place through the burdened lot.
Although only an inclusive definition, clause 3 of Part 11 "domestic services" includes "supply of water, gas, electricity, telephone and television and discharge of sewage, sullage and other fluid wastes" which is broadly consistent with the present interpretation.
Mr Breen's and Ms Dillon's submission that a CCTV camera "is certainly a 'domestic service' for reasons including safety and security, as well as control and management of the Inclinator" gives insufficient weight to the applicable meaning of the word "services" and the words "to or from each lot benefited" in the expanded definition in Schedule 8 identified above.
Many examples of different kinds of service that might fall inside or outside these words were debated in submissions and it is not necessary to discuss them in any detail here. But one example suffices to explain the nature of the problems that would arise if the Court were to accept Mr Breen's and Ms Dillon's interpretation of this provision. Such an interpretation might mean that it would be possible to set up solar panels on the burdened land to generate electricity for the benefited lot. That can hardly be what was intended here.
The CCTV camera is therefore an impermissible fixture placed upon Easement I which is a trespass and can and should be removed. There is no good reason why the plaintiff should not be at liberty to unfix and remove the CCTV camera from the storage level where it is presently located, provided the removal takes place in a way that is orderly and takes account of the fact that the Court is now in a vacation period.
The Court's orders below in relation to the CCTV camera are crafted to allow the smooth and orderly removal of the camera. The orders will restrain the removal of the CCTV camera until 2 February 2023, place the removal in the hands of the plaintiff (the owner of the burdened land to which the CCTV camera has been affixed) without authorisation, require that the plaintiff give ample notice of its removal to the defendants, require the parties agree upon removal methods, and provide for a standard of restoration of the site and the return of the camera to the defendants. Any other outstanding disputed issues concerning the CCTV camera removal should be brought to the Court's attention on 2 February 2023 before the removal takes place.

Conclusions and Orders

These orders are being made during the Court vacation period. Slattery J will resume as Duty Judge on Monday, 30 January 2023 when the Law Term recommences. It is undesirable that the situation on the ground at Lots 116 and 118 be changed during the vacation period, in a way that might potentially provoke further applications to the Court by either party when the trial judge is absent.
Accordingly, in addition to making the declarations and orders below, the Court will stay the operation of those orders until Friday, 3 February 2022 to enable any disputes about their implementation to be resolved between 30 January and 3 February 2022. The parties are also given liberty to apply, and the matter will be listed for mention on 2 February 2022 to deal with any remaining disputes and to ascertain whether any further submissions are required before the Court determines the other contested issues of fact and law in the proceedings.
There has not been a separate determination of this issue (3) under UCPR, r 28.2, so it will be unnecessary for any party to appeal from these orders (to preserve rights of appeal) until judgment is given in respect of all other outstanding issues at trial.
The Court makes the following orders and directions: 1. Declare that Easement I does not authorise the defendants to place, maintain and use the CCTV camera at the storage area level below landing 5 on the area of the plaintiff's land burdened by the Easement I; 2. Order that the plaintiff is at liberty to remove the CCTV camera from the storage level area where it is presently located provided the removal takes place in accordance with the following terms and conditions and under the following limitations, 1. the plaintiff is restrained from interfering with, unfixing, or removing the CCTV camera at any time before 4.00 pm on 2 February 2023, 2. the plaintiff shall (but not before 1 February 2023) give at least 7 clear days' notice of the date and time (on a weekday within business hours) when the camera is proposed to be unfixed and removed ("the appointed time") and both the plaintiff and the defendants are by their servants or agents each restrained from interfering with, unfixing, or removing the CCTV camera at any time before the appointed time, 3. the parties will prior to 1 February 2023 endeavour through their solicitors to agree upon the unfixing and removal of the CCTV camera and its surrounding boxing by a mutually agreed contractor, or alternatively under the supervision of their legal representatives, 4. the unfixing and removal of the CCTV camera shall be effected first by the plaintiff or her agent removing the boxing surrounding the CCTV camera, followed by the defendants or their agents removing the camera itself, all its fixings, cabling and supporting structures, which actions shall be undertaken occasioning as little damage as is reasonably possible to the CCTV camera itself, to its cabling, and to the wall structures to which it is affixed and such unfixing and removal will include making good but only to the standard to which the site was kept before the CCTV camera was affixed, and 5. upon removal the boxing surrounding the CCTV camera will be returned to the plaintiff and the CCTV camera, camera cabling and any camera supporting structures will be returned to the defendants; 1. The proceedings are listed for mention on Thursday, 2 February 2023 at 9.15 am or at such other date and time that is convenient to the parties and to the Court and is arranged with the chambers of Slattery J for the purposes of 1. dealing with any outstanding issues in relation to the removal of the CCTV camera, and 2. receiving any further submissions prior to the Court reserving judgment in relation to the balance of trial issues. 1. Grant liberty to apply.

Amendments 04 May 2023 - To title of judgment, add (No. 2) in title. 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: 04 May 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)

Cited By (2)