Coles Group Property Developments Limited v Milovan (aka Michael) Stankovic [2016] NSWSC 852

Coles Group Property Developments Limited v Milovan (aka Michael) Stankovic [2016] NSWSC 852

The defendant was a trespasser because he breached the car parking terms and conditions and any licence to enter or remain on the plaintiffs' private land was effectively terminated by the October 2014 banning notices and the 30 September 2015 notice. The land had not been dedicated for public use, as the plaintiffs' signage and conditions showed an intention to retain control, and the Protocol for Homeless People in Public Places did not apply to private property. Given the real threat of repeated trespass, the plaintiffs were prima facie entitled to a permanent injunction, and the defendant's hardship in needing to make alternative medical arrangements did not justify refusing relief,...

Jurisdiction
Australia
Judgment Date
23 June 2016
Procedural Posture
Application for Declaration and Permanent Injunction in Trespass to Land / Final Hearing
Outcome
Permanent injunctive relief granted in substance, with a two-month transitional carve out allowing the defendant to attend the medical centre only; plaintiffs invited to prepare short minutes of order and costs to be heard if necessary.
Legal Topics
['trespass to Land' 'implied Licence to Enter Land' 'dedication of Land for Public Use' 'permanent Injunction' 'homeless Persons in Public Places Protocol' 'hardship and Discretionary Relief']
['property Law' 'equity' 'civil Procedure'] ['trespass to Land' 'implied Licence to Enter Land' 'dedication of Land for Public Use' 'permanent Injunction' 'homeless Persons in Public Places Protocol' 'hardship and Discretionary Relief']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Declaration and Permanent Injunction in Trespass to Land / Final Hearing

Legal Issues

  1. 1 ["Whether the defendant was a trespasser on the plaintiffs' land at Kellyville Plaza." 'Whether the Coles car park or Kellyville Plaza land had been dedicated for public use.' 'Whether any express or implied licence permitting the defendant to enter or remain on the land had been revoked.' "Whether the Protocol for Homeless People in Public Places protected the defendant from removal from the plaintiffs' land." 'Whether a permanent injunction should be granted, including whether hardship to the defendant justified refusing or modifying relief.']

Ratio Decidendi

The defendant was a trespasser because he breached the car parking terms and conditions and any licence to enter or remain on the plaintiffs' private land was effectively terminated by the October 2014 banning notices and the 30 September 2015 notice. The land had not been dedicated for public use, as the plaintiffs' signage and conditions showed an intention to retain control, and the Protocol for Homeless People in Public Places did not apply to private property. Given the real threat of repeated trespass, the plaintiffs were prima facie entitled to a permanent injunction, and the defendant's hardship in needing to make alternative medical arrangements did not justify refusing relief,...

Court Disposition

Permanent injunctive relief granted in substance, with a two-month transitional carve out allowing the defendant to attend the medical centre only; plaintiffs invited to prepare short minutes of order and costs to be heard if necessary.

Orders

  • ['The defendant is to be restrained from entering upon or remaining on Kellyville Plaza or leaving any property on the land.' 'For a transitional period of two months, the defendant may enter the Plaza only to use the medical centre and must make alternative arrangements for health care elsewhere during that...