Mark Eldridge v Agent 47 Pty Ltd trading as Harcourts West Ryde [2021] NSWDC 230

Mark Eldridge v Agent 47 Pty Ltd trading as Harcourts West Ryde [2021] NSWDC 230

The Plaintiff failed to establish exclusive possession of the letterbox because it was common property and possession of a key and the placing of a "No Junk Mail" sign did not show an intention to exclude the owner. In any event, any implied licence to deposit mail had not been withdrawn: the phrase "No Junk Mail" had no defined or clear meaning, the Defendant did not regard its newsletter as junk mail, and a reasonable person in the Defendant's position would not necessarily understand the sign and communications, especially without an address being provided, as revocation of the licence to deliver the newsletters. The Court also would have refused exemplary damages because the Defendant...

Jurisdiction
Australia
Judgment Date
28 May 2021
Procedural Posture
Civil Tort Claim for Trespass to Property and Exemplary Damages / Principal Judgment After Hearing
Outcome
Verdict for the Defendant.
Legal Topics
['trespass to Letterbox' 'exclusive Possession' 'implied Licence' 'revocation of Licence' 'unsolicited Real Estate Newsletters' 'exemplary Damages']
['torts' 'trespass' 'damages' 'strata Title'] ['trespass to Letterbox' 'exclusive Possession' 'implied Licence' 'revocation of Licence' 'unsolicited Real Estate Newsletters' 'exemplary Damages']

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Procedural Posture

Civil Tort Claim for Trespass to Property and Exemplary Damages / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Plaintiff had exclusive possession of the letterbox, which was located on strata common property, sufficient to sue in trespass.' 'Whether a sign reading "No Junk Mail" and subsequent communications were sufficient to withdraw any implied licence to place the Defendant\'s newsletters in the letterbox.' 'Whether the Defendant had an established right or licence arising from prior deliveries and acquiescence.' 'Whether exemplary damages should be awarded if trespass were otherwise established.']

Ratio Decidendi

The Plaintiff failed to establish exclusive possession of the letterbox because it was common property and possession of a key and the placing of a "No Junk Mail" sign did not show an intention to exclude the owner. In any event, any implied licence to deposit mail had not been withdrawn: the phrase "No Junk Mail" had no defined or clear meaning, the Defendant did not regard its newsletter as junk mail, and a reasonable person in the Defendant's position would not necessarily understand the sign and communications, especially without an address being provided, as revocation of the licence to deliver the newsletters. The Court also would have refused exemplary damages because the Defendant...

Court Disposition

Verdict for the Defendant.

Orders

  • ['Verdict for the Defendant.' "Plaintiff to pay the Defendant's costs." 'Exhibits to be retained for 28 days.']