Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096

Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096

The plaintiff, holding a contractual licence to occupy Crown land for jetty and slipway purposes but without a right of exclusive possession, cannot maintain claims in trespass or obtain injunctive or declaratory relief restraining entry by the second and third defendants, whose rights to use the land are governed by the Crown Lands Act 1989, and only the Crown (as proprietor) may bring actions to restrain use or entry.

Parties
Plaintiff: Annette Georgeski; First Defendant: Owners Corporation SP49833; Second Defendant: Anne Catherine Hynd; Third Defendant: Joan Mary Hutchinson; Fourth Defendant: State of New South Wales
Jurisdiction
Australia
Judgment Date
22 November 2004
Procedural Posture
Declaratory and Injunctive Relief Proceedings / First Instance Judgment
Outcome
Declaratory relief against first defendant granted. Claims against second and third defendants dismissed.
Legal Topics
Crown Land Licensing, Fixtures, Public Rights to Foreshore, Trespass to Land, Declaratory and Injunctive Relief
Real Property Equity Torts Crown Land Licensing Fixtures Public Rights to Foreshore Trespass to Land Declaratory and Injunctive Relief

Case Brief

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Parties

Annette Georgeski

Plaintiff

Owners Corporation SP49833

First Defendant

Anne Catherine Hynd

Second Defendant

Joan Mary Hutchinson

Third Defendant

State of New South Wales

Fourth Defendant

Procedural Posture

Declaratory and Injunctive Relief Proceedings / First Instance Judgment

Legal Issues

  1. 1 Nature and extent of the plaintiff's rights in relation to Crown land under a licence
  2. 2 Classification of the jetty and slipway as fixtures or otherwise under property law
  3. 3 Whether a contractual licensee without exclusive possession can maintain an action in trespass

Ratio Decidendi

The plaintiff, holding a contractual licence to occupy Crown land for jetty and slipway purposes but without a right of exclusive possession, cannot maintain claims in trespass or obtain injunctive or declaratory relief restraining entry by the second and third defendants, whose rights to use the land are governed by the Crown Lands Act 1989, and only the Crown (as proprietor) may bring actions to restrain use or entry.

Court Disposition

Declaratory relief against first defendant granted. Claims against second and third defendants dismissed.

Orders

  • Declarations as set out in paragraph [9] granted against Owners Corporation SP49833 (first defendant): that its right of footway does not provide access to the jetty or slipway.
  • Claims for injunctive and declaratory relief against Anne Catherine Hynd and Joan Mary Hutchinson (second and third defendants) dismissed.